Sunday, June 28, 2015

Witnessing Inspiration and Bankruptcy in the Breach

Heaven knows there is plenty in the world in which we live to sap our energy as lawyers, spiritually, professionally, and personally.Yet, this was an important week. A week in which two opinions handed down on successive days from the Supreme Court of the United States (SCOTUS) on same sex marriage and health care legislation will be labeled, for better or worse, with the all-too-often-used moniker "landmark decisions."

Likewise, on Friday, The President of the United States (POTUS) delivered the eulogy for Pastor Clementa Pinckney that James Fallows at The Atlantic called POTUS's "[m]ost fully successful performance as an orator." Given some of his past oratory (his star marking turn at the Democratic National Convention in 2004, for example) this is quite a declaration.

Instead however, it is a speech by a person I had never heard of, and delivered almost two months ago, that gave the dash of inspiration I occasionally find to help me gather up the amour to again go into the breach.

Senior United States District Judge John L. Kane delivered the keynote speech to the Colorado Trial Lawyers Association on May 7, 2015. I found the speech reading a blog post by Scott Greenfield at Simple Justice. Judge Kane gave the speech as the keynote at the CTLA annual Spring Dinner, and entitled it "Swan Song'. It can be read here.

Judge Kane spoke easily of the ways the practice becomes an almost insurmountable burden on those who participate in the trenches:
As lawyers, you seldom see people at their best. You frequently witness injury, oppression and injustice, and you are expected, even demanded, to take action against it. The one thing you cannot do, and still succeed as a lawyer, is to be indifferent to oppression and injustice. To succeed in this profession, to have a sense of well-being, to revel in it, you must have a fire in the belly. Performing legal services in a mechanistic way, measuring success by the billable hour or the size of the fee with no keener value, and ignoring or denying the moral and intellectual justifications for what one does, will turn even the most lucrative law practice into a humorless and moribund job.
Of course he is right. Fire in the belly is as necessary to a trial lawyer as creative tension is to an artist. If you have lost it, guile learned of experience may allow some continued short term success. Guile and single malt scotch whiskey, however, will only carry you so far before the costs of indifference, not to mention the single malt whiskey, will cause a deeper bankruptcy.

It is, however, not just the actual practices of trial law, but the institution itself that Judge Kane sees in decline:
Just think what plea bargaining and guideline sentencing have done to the practice of criminal law, or the shift from its investigative basis to one dependent on the prevalence of informants, or what arbitration, mediation and confidential settlements have done to the once vigorous adversarial presentation of civil controversies to juries in full public view, reported by an active and knowledgeable press. How can a society govern itself and respond to the dehumanization of values when its controversies and issues are lost in a vortex of sealed documents and depositions? Have we placed too much emphasis on the closing of the law’s work to public view and judgment? We do know that justice is something most people cannot afford and even fewer have experienced.
                                                                     *    *    *
[The] decline of jury trials to near extinction is a product of the law itself. Each of you knows more than I do about caps on damages and the devastating effects they have on people who are injured. It is simply not possible to put their lives back into balance when the gates of justice are only half open.
Judge Kane then rolls this loss of jury trials to the diminished lawyer in our communities, but with a twist. Those of you working in the courtroom trenches must realize, or be reminded, it is not just what you are building, brick by brick, that is important. It is who you are building it for. Those who will come after.
Whether trials continue to exist or, perish the thought, the legal system becomes yet another bureaucracy, the value of being a lawyer and the advocate’s sense of well-being will not change. When you provide order to families living in chaos, when you afford dignity to those who have been degraded, when you eloquently express the highest aspirations of our culture where otherwise there is greed and corruption, when you take upon yourself the awesome task of ending a person’s despair, in sum, when you become another’s champion, you succeed.
Judge Kane then speaks in his self described swan song of passing the torch and of the future. This is what really rocked my socks.
We haven’t reached bottom yet, but history teaches us that revolutionary ideas fail when there is no revolutionary class to support them.
Profound words. So off to the barricades I go, again, no matter how much those ramparts may be sieged.

Sunday, June 21, 2015

A Father's Day Gift From My Special Child

Motherhood is a biological fact, while fatherhood is a social invention.  ~ Margaret Mead

I have often wondered how Mead's famous quote fits for fathers of special needs children. I came to parenting relatively late, so late my youngest, my very own special needs child, is sometimes mistaken as my grandchild. Yet the social invention of fatherhood seems to fit me better now. When I try and be still, and listen to him it is the closest I come to transcending my senses and perception of the world.

*     *      *

When I held my older two boys in their infancy I prayed silently they would be "normal" - that is they each would reach a stage in life when I would no longer be responsible for providing the necessities of life.

Is that not that what every parent wants for their child?

Then Zane came.

I remember asking his doctor, "What can we expect as he becomes older?" To his credit, the doctor gave as honest an answer as any health care professional responsible for Zane's care and treatment ever has.  "I believe Zane will have challenges with most every task" was the reply. Zane is non-verbal and is not potty trained. My younger self's worst conjuring.  

Last week I stopped for Chinese takeout with him. While we were leaving, he let out a blood curdling shriek that turned every head in the place toward us. I just smiled. I knew he was expressing something no one else in restaurant could know: How pleased he was to be experiencing new sensations, picking up food that smelled delicious. You see he was hungry, and he wanted me to know how much he appreciated me. It was really that simple.

                                                                      *     *     *

Zane has physical impairments. One leg is shorter than the other and the walks in a unbalanced way that resembles a drunk sailor. He also has seizures. Not the Grand Mal type, but a lesser variety called Absence seizures that last a few seconds but come in clusters. They are ameliorated by medication, but not completely eliminated.

The seizures are always a worry. Sort of like life. Look away and it is gone. See, these are the things I have been taught by Zane. Things he has given me for Father's day. Knowledge, appreciation, insight. Gifts I can never totally repay.

                                                                      *     *     *

Zane has made my sons better brothers to him and each other. They understand things others cannot. They appreciate Zane in ways I could never have envisioned. He has brought them lessons in acceptance of themselves and others different from themselves in ways I could never have taught.

 Zane has made me a better lawyer. I listen more now. I have more empathy for those who have fallen. I am keenly aware of the intellectually disabled, how they can occupy that space between appearing to understand yet not understanding the world around them. I appreciate the frailty of  the human condition. Zane has made me a more passionate advocate. He has helped me realize we are put on this earth for reasons beyond understanding.

And of course without Zane, this blog would likely never exist. For better or worse it is here to stay.

Happy Father's Day, it is a good social invention.   

Gov. Abbott Vetoes Expunction Reform

Governor Greg Abbott has vetoed expunction reform. I have written here and here about expunctions and the mass collection of criminal history data by private companies for profit. HB 3579 expanded expunction rights by changing language in the statute which appellate courts have interpreted as tying expunction of records to the arrested for offense rather than the offense for which the person seeking expunction was actually sentenced.

 In an internet age in which criminal histories are available at a key stroke, reforming laws to allow for expanded expunction rights to arrestees, in certain situations, seems a no brainer.

Well I guess not to Governor Abbott. 

HR departments are not made up of lawyers and explanations such as "Yes I was arrested for Possession of less than 2 oz of Marijuana but after the prosecutors got it, they pled it down to a conviction for Attempted Possession of Marijuana and I only paid a fine" tend to fall on deaf ears. 

Governor Abbott's statement on the veto was as follows:
Pursuant to Article IV, Section 14, of the Texas Constitution, I, Greg Abbott, Governor of Texas, do hereby disapprove of and veto House Bill No. 3579 as passed by the Eighty-Fourth Texas Legislature, Regular Session, because of the following objections:
I previously signed Senate Bill 1902, which increases the ability of those who have been convicted of misdemeanors to have their criminal records sealed from public disclosure. 
The purpose of that legislation is to expand the employment prospects of individuals whose minor criminal records may be unduly limiting their ability to pursue an honest living. 
House Bill 3579 has a similar goal, but it goes too far by allowing courts to expunge dismissed criminal charges-including serious felony charges----even when the defendant was convicted of other, related charges. This would be problematic for two reasons. First, dismissal of a criminal charge is not necessarily an indicator of the defendant's innocence of that crime, particularly when a multi-charge arrest results in a plea agreement. Second, unlike orders of non-disclosure, which seal records from public view, expunction seals the records even from law enforcement. Under House Bill 3579, even those convicted of serious felonies could have parts of their criminal record expunged. This would deprive law enforcement of information about the offense history of habitual criminals, which may be useful in the investigation of future crimes. 
Since the Eighty-Fourth Texas Legislature, Regular Session, by its adjournment has prevented the return of this bill, I am filing these objections in the office of the Secretary of State and giving notice thereof by this public proclamation according to the aforementioned constitutional provision.
These reasons do not hold up to scrutiny. Governor Abbott's first reason for vetoing expunction reform is: "dismissal of a criminal charge is not necessarily an indicator of the defendant's innocence of that crime, particularly when a multi-charge arrest results in a plea agreement."  I agree dismissal does not necessarily mean the defendant is innocent of the arrested for crime. But many times it is an "indicator" the defendant is factually innocent of that crime, even if they plead to another crime arising from the same arrest for which there was evidence of guilt.

Further, the expunction statute as it is now written does NOT require "innocence of [the] crime" as a condition of expunction. The statute entitles defendants acquitted by the trial court (except in a very narrow circumstance) to expunge the arrest for which they were acquitted. As any first year law student will attest, acquittal is not the same as innocence.  More significantly the statute as currently written does allows a category of convicted defendants a right to expunction: Defendants convicted but later pardoned for the offense for which they were convicted. These defendants are explicitly granted the right to expunge under existing law.

Both these categories of expunction eligible defendants under current law demonstrate this justification for veto is illusory.

 Moreover, a prosecutor is in the best position to assess the relative strengths and weaknesses of a case. If they decide to dismisses several cases in exchange for a plea of guilty to a stronger case arising from the same arrest, there is no good reason not to allow expunction rights on the dismissed charges. The prosecutor determined justice was served by dismissing in exchange for a sentence on other cases. Expunction rights would have flowed under the reformed statute.

How about DWI? Let us use a hypothetical 21 year old student at Texas A&M majoring in engineering who is pulled over and arrested for DWI. They cooperate fully, look good on standardized field sobriety tests, consents to a blood draw that months later comes back with BAC of .08. The prosecutor reviews and offers dismissal (or not to file) the DWI in exchange for a plea of guilty and 9 month deferred adjudication to Obstruction of a Highway or Passageway with alcohol conditions as part of the conditions of deferred. This guy or gal cannot under the current appellate interpretation of the law expunge the DWI arrest. The reform bill passed by the legislature would have allowed expunction of the DWI arrest but not the deferred to Obstructing a Highway.

As to the Governor's next justification for the veto,  "... even those convicted of serious felonies could have parts of their criminal record expunged." Well, not really Governor. The offenses on which the felon was convicted could not be expunged. That conviction is and will be available to law enforcement and the public.

As to the Governor's last reason for vetoing expunction reform: "This would deprive law enforcement of information about the offense history of habitual criminals, which may be useful in the investigation of future crimes." Possibly, but not entirely likely. Moreover, if a felony prosecutor has made a informed decision that a case should be dismissed, then why should it not be expunged? I am going to have to look again at the current statute, but if such a deal is struck post indictment, the arrested for offense, even if dismissed, may not be expunction eligible anyway.

So to you mothers and fathers of college students, when you ask me about expunction of some misdemeanor arrest your son or daughter caught that a prosecutor later reduced to another charge - other than a Class C deferred misdemeanor - it is your elected Governor who is responsible for that dismissed arrest not being eligible for expunction.

 Call him. Write him. I know he would be glad to hear from you.

What SCOTUS Giveth, They Taketh Away

I remember hearing a judge say it the first time after picking a jury many years ago. The judge told the selected jury "You are now participants in the administration of justice" immediately after administering the juror's oath. So what do you tell a population proven to be historically excluded from such participation? The Supreme Court of the United States ("SCOTUS") has answered these communities by telling them they cannot be excluded from jury service because of who they are.

In my county in Texas most every judge tells an assembled panel before jury selection begins they cannot be excluded from jury service because of race, ethnicity or gender. This is their way of promoting full and complete answers to questions asked of the panel touching on their possible service as a juror.

The problem? What these judges are telling these jurors is for the most part not true. These trial level judges are, for the most part, vessels in the betrayal of the principle. The primary culprits are appellate courts failing to give meaningful appellate and collateral review of the principle. This includes SCOTUS, which represents to minority communities they are protected, yet turns a blind eye to methods excluding the very populations they claim are protected.

It is the worst sort of sleight of hand because it involves the administration of justice.

SCOTUS decided Batson v. Kentucky by declaring jurors could not be excluded from jury service based on their ethnicity. To do so in state criminal prosecutions violated the 14th Amendment right of everyone to equal protection under the law. Batson introduced a three step process to determine whether the juror exclusion (strike) was impermissible:
  • First, the movant, typically a criminal defendant, must make an initial showing (called a prima facie case) of discrimination. Most often this would mean showing most if not all of the minority jurors were struck by the non-moving party;
  • Second, if this initial showing is made, the non-moving party (typically the state) must provide a race neutral reason for exercising the strike against the minority panel member;
  • Third, the court must decide whether the under all the circumstances presented, purposeful discrimination in the exercising of the state strike of the minority jury panelist exists. The state's race neutral reasons can be attacked as pretextual, for example. Pretexual strikes come into play most often when the race neutral reason is compared against the similar answers or non-verbal behaviors given or exhibited by non-minority jury panel members who were not struck.
It is in the details of this process that discrimination lurks.

This week SCOTUS decided a Batson challenge in  Davis v. Ayala, before the court on federal habeas review. It is a death penalty case. At trial some 25 years ago, the state had struck all the African American and Hispanic jury panel members. When Ayala's trial lawyer made a Batson challenge, the trial judge excluded the defense lawyers when hearing the state's race neutral reasons for exercising these strikes. After hearing the race neutral reasons, the trial judge denied the defense motion. Fast forward to federal habeas review. The Ninth Circuit Court of Appeals found purposeful discrimination existed and reversed for a new trial.

This is the posture of the case when SCOTUS decided it last week.

 Justice Samuel Alito wrote the majority opinion. Justice Alito opened the opinion with the considerable age on the case, and then worked very hard to parse the evidentiary record to attempt to demonstrate  the exclusion of the defense lawyers had not undermined the race neutral reasons given by the prosecution for the exercise of their strikes. Justice Alito concluded that any violation was harmless under Federal habeas standards.

The dissent, authored by Justice Sotomayor argued it was exclusion of the defense lawyers which drove the harm more than the evidentiary record established without them. Justice Sotomayor wrote that Justice Alito's parsing of the record was compromised because there was no adversarial hearing regarding the purported race neutral reasons given by the State. Justice Sotomayor would have presumed harm because of the exclusion of the defense lawyers in a hearing that by it's very nature required their presence to challenge evidence provided by the prosecutors of race neutral reasons for striking minority panel members.

Ayala's legacy, however, may be the concurrences of Justices Kennedy and Thomas in the judgment of the Court. Justice Kennedy used his concurrence to basically announce his openness to consider whether long term administrative segregation (solitary confinement) is unconstitutional under the 8th Amendment. Justice Thomas answered Kennedy's concurrence with a sussy to death penalty proponents deriding Kennedy's concerns for the petitioner's living conditions when contrasted with the death of his victim.

Contrast Ayala with the facts of another Batson case which SCOTUS has granted certiorari for decision next term, Ford v. Humphreybefore SCOTUS on state habeas review.  Ford is also a death penalty case. The Petition for Certiorari was filed by lawyers for the Southern Center for Human Rights (SCHL), where Bryan Stevenson, the acclaimed author of the New York Times bestselling memoir Just Mercy began his legal career.

Ford was tried to a Georgia jury in 1987. Like Ayala, the state exercised strikes against all African Americans on the panel. The trial judge required the state to give race neutral reasons for the exercise of strikes, and after referring to notes, the state gave some 40 different race neutral reasons for their strikes against the minority jurors. The trial court denied the Batson motion and later a post trial request for discovery of the prosecutors notes as well as motion for new trial re-urging the Batson motion. On direct appeal the Georgia Supreme Court affirmed the conviction and death sentence.

Many years later, in 2002, the SCHR, which had taken over working the case on habeas review, made an open records request for the prosecutor notes denied Ford in his post judgment discovery motion. The results were, well, shocking, and formed the basis for the subsequent state habeas claim re-urging the original Batson violation based on the newly discovered evidence.

What the SCHL found in the prosecutor's notes can be read in the SCHL Petition for Certiorari (pages 5-8):
First, the prosecution marked the name of each black prospective juror in
green highlighter on four different copies of the jury list.  
Second, the prosecution circled the word “BLACK” next to the “Race”
question on the juror questionnaires of five black prospective jurors. 
Third, the prosecution identified black prospective jurors Eddie Hood, Louise
Wilson and Corrie Hines as “B#1,” “B#2,” and “B#3,” respectively, in its notes. 
Fourth, Clayton Lundy, the prosecution’s investigator, ranked the black
prospective jurors against each other in case 'it comes down to having to pick one of the black jurors.' Lundy explained in a draft affidavit that he advised the prosecutor: 'if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.'
Fifth, the prosecution’s strike lists contradict the 'race-neutral' explanations
proffered for the strikes of the black prospective jurors. For example, the prosecutor
claimed that his team 'had, in [its] jury notes, listed [Marilyn Garrett] as
questionable,' and only decided to strike her when Shirley Powell, the fifth black
prospective juror, was removed for cause on the morning of jury selection.
But Garrett was identified as a “No” or “Definite No” on all four of the prosecution’s
strike lists.
 The state trial habeas court denied relief. The Georgia Supreme Court refused review. The order from the habeas trial court denying relief reads as follows (page 9 of Petition):
The notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists. Furthermore, the State has offered evidence sufficient to rebut such a claim. The court finds that the State put forward multiple race neutral reasons for striking each juror, and the Petitioner’s claim of
inherent discrimination is unfounded by the record. Importantly, this court notes that on direct appeal, trial counsel raised a claim that the trial court erred in finding that the prosecution provided race-neutral reasons for striking the four African-American jurors. The Georgia Supreme Court affirmed the trial court’s denial of this claim,finding that the prosecutor’s explanations were related to the case to be tried, and were clear and reasonably specific. The Georgia Supreme Court held that the trial court did not err by finding these reasons to be sufficiently neutral and legitimate. Foster v. State, [374 S.E.2d 188,191-92] (1988). Accordingly, the court finds the Petitioner’s renewed Batson claim is without merit.
In other words, despite the new evidence discovered (and previously denied to the defense trial attorneys despite their request) the habeas trial court still found no pretext in the State's stated race neutral reasons for striking every African American on the panel.

Regardless of the ultimate outcome of Ford at SCOTUS next term, I believe at least one, maybe as many as three of the justices, will back the habeas trial court's reasoning. Justice Alito, the author of the majority opinion in Ayala, is the prime candidate to be writing a defense of, what to me, is indefensible: That the State of Georgia gave sufficient nonpretexual race neutral reasons in striking every black person on a jury panel that would be decide death or life.

You see, judges hide behind process to avoid granting Batson challenges. Trial judges typically do not like them. They work with prosecutors on a daily basis and do not like making findings that these same prosecutors have engaged in discriminatory practices in striking jurors. Appellate court judges then hide behind their process by deferring to the trial judges who acted in their fact finding roles when they decided a race neutral reason existed for the strike. Habeas judges and appellate judges reviewing collateral habeas findings hide behind harmless error, while often simultaneously fuming if the habeas is a subsequent (second, third or fourth) claim.

If I told a person of color the State of Georgia had exercised preemptory strikes on every African Americans on a death penalty jury panel, and a all white jury decided an African American defendant should receive the death penalty, they might shake their heads. If I told the same people the State of Georgia had fought attempts to review prosecutors notes, which when finally secured twenty years after the trial, demonstrated the singling out of African American jurors for the purpose of exercising their strikes against those jurors, they would be incredulous.

Yet if I told these same people of color a reviewing appellate court decided these prosecutor's notes did not establish a discriminatory intent behind the exercise of the State strikes against all the African Americans on the jury panel, they might say "Things don't change much."

You know something? They would be right. Things do not change much.

Cases like Foster only stoke the fire of perception among communities of color that the criminal justice system cannot be trusted. The evidence is there for appellate courts. Instead many choose to hide behind processes, procedures, and harmless error standards lost on those the underlying constitutional principle were supposed to protect.

Both Ayala and Ford are death penalty cases. Think about it: If this kind of chicanery is occurring in death penalty cases, can you imagine what is happening in lesser felony and misdemeanor prosecutions? Ones in which defendant's do not have access to a lawyer for post conviction purposes? There is no right to counsel for post conviction habeas proceedings in non-death cases. Without the SCHL, could a non-capital habeas petitioner jumped through all the hoops they did?

Yes, what SCOTUS giveth, it taketh away with process and procedure. What does more harm? Honestly telling a community that they can be excluded from the "administration of justice" based on their ethnicity, or placating them with assurances they cannot be so excluded, just to turn a blind eye to discrete methods that accomplish their exclusion anyway?

Friday, June 19, 2015

Hamilton Removed from the $10 Bill? Say it Ain't So!

The Treasury Department has leaked it's unfortunate intention to remove Alexander Hamilton's image from the ten dollar bill. It is Hamilton's vision of the United States of America that we live in today, much more so than any other of the giants that founded this county. This includes his rival and antithesis Thomas Jefferson, who may get the ink, but whose vision of a United States became antiquated even before his own death.

Ron Chernow's book Alexander Hamilton should be read by anyone curious about not only Hamilton, but the world as it existed in the late 18th and early 19th centuries. Hamilton was largely a self made man. He was born of a unwed mother of desperate financial straits in the West Indies. Fortunately from an early age he was recognized as possessing a unique and gifted intellect.

Hamilton grew up around slavery while a young man and saw the evil wrought by it. He was an ardent slavery abolitionist. He was a lawyer. He was a New Yorker. Unfortunately, most of this is forgotten and what remains most memorable of his full life is, unfortunately, is his inglorious death at the hands of Aaron Burr.

Our monetary system, for better or worse, was essentially developed by Hamilton. He understood the need and use of credit to expand an economy. He appreciated and drove the idea of a central bank to this end. This contribution is why his image was on the ten dollar bill. No longer it seems.

Yet Andrew Jackson remains on the twenty dollar bill. Jackson was a slave owner, and responsible for the Trail of Tears. Alexandra Petri at The Washington Post (sort of) agrees with me: Keep Hamilton and dump Jackson.

Wednesday, June 17, 2015

Not Funny, Jeff Ross

UPDATED 09/22/2015: The FUBAR got worse. Unedited footage of Gabriel Hall from the Jeff Ross "special" was used Wednesday as evidence to support the State of Texas contention that Hall should receive the ultimate punishment a government can mete out against one of it's own: Death.

Jeff Ross wanted different shtick.

Jeff Ross wanted to shock,

Jeff Ross wanted to be the darling of media outlets by providing yuks from behind bars.

Little did Jeff Ross know he would become a State's witness in their quest for death.

And the media that feted Ross when he was promoting his "comedy" gig from coast to coast? Where are they now? Well, the silence is deafening.

The link is here as reported by Jake Walker of The Bryan/College Station Eagle.

UPDATED 08/21/2015: The FUBAR that the Jeff Ross "comedy" special, Jeff Ross Roasts Criminals at the Brazos County Jail has become, continues. The State has evidently subpoenaed unedited footage from the Ross and Comedy Central vehicle. The footage is audio and video of Gabriel Hall, accused of Capital Murder (the state is seeking death). Jake Walker of The Bryan/College Station Eagle reported on the efforts of Hall's lawyers to suppress the State's use of the footage during Hall's trial.

ORIGINAL POST: 06/17/2015:

Jeff Ross brought his talents to the Brazos County jail about a month ago. I remember it - there were signs up inside the jail when I was out doing a jail visit - but I did not think much about it. Then Comedy Central aired his show at the jail as a special in early June. I saw media promotion of the show online at Esquire, the Hollywood Reporter, and even The Washington Post. Ross even promoted the gig on Conan.

I started paying attention.

Ross wrote about his experience filming in my county's jail for the Huffington Post, "I Went to a Texas Jail to Roast the Inmates; Here's What I Learned About Incarceration in America."  Among other things Ross writes about is how modern jails and prisons warehouse the mental ill:
I admit I roasted these people for sheer entertainment purposes -- but also to get myself a glimpse into the American prison system...Wayne Dicky, the jail administrator who proudly allowed me access to his facility, told me that American jails are de facto mental health facilities. Back in the seventies many psychiatric hospitals were shut down. Now all those people needing mental help wind up in jail instead. I freely walked around the cells and dorms and saw the insanity first hand. We tuck so many damaged people away and forget about them -- like human dust. 
In his piece for the Huffington Post, Ross writes of the impromptu show he did with female inmates:
Brazos County Jail has about 600 male inmates and about 150 women. The men and women don't mix. So I couldn't resist a last minute invitation to perform for the ladies...I did the whole show impromptu with my regular comedy club swagger. I asked a woman in the front row holding her belly if she was, "stealing for two?" These orange clad ladies laughed so hard with their whole bodies.  
In particular, Ross wrote about one of the females:
I'll never forget Big Mama Joe, Country, and a young funny lady who pulled out her ID and revealed her actual last name was "Hooker." 
I know Big Mama. Big Mama has suffered from mental illness for many, many years. She is one of those individuals to whom Ross is referring when he wrote critically in HuffPo about modern American jails being de facto mental health facilities. Of course, this did not stop Ross from laughs at Big Mama's expense. It can be can seen here (begins at the 20 second mark). Ross brings down the house commenting to Big Mama she needed "boob support" and taking a parting shot of "You're my favorite smurf."  Great humor, right?

Big Mama was a critical state's witness in a capital murder (death penalty waived) I tried several months ago. Big Mama was not nearly as funny then. We attacked her without mercy at trial. It was, after all, our job. I can nevertheless feel empathy for her plight. I can also find it less than funny when she is made a prop in a comedic routine.

Those of you who use Johnny Cash's At Folsom Prison album as a comparison? Sorry, much different. Cash had a history of prison performances before he cut AFP in 1968. Cash used interaction with inmates as part of the act, sure, but it was not the primary focus of the "entertainment." Instead it was Cash's music.

The same for those who say stand up comedians use audience members as props all the time. Lenny Bruce, Richard Pryor, George Carlin all used the impromptu interaction for laughs and social commentary, and, profit. Different still. Audience members PAY to go see stand up. They KNOW exactly what they are in for. They have a CHOICE. Yes, I am sure the inmates in the various tanks in the Brazos County jail had a choice. The jail did not force them attend Ross' show. But after they were told about it, or saw the posters around the jail, most wanted to attend. Most any isolated population whose lives are filled with boredom and bad food would attend such an event and laugh uproariously, even when the "humor" is directed squarely in their direction.

By the way, are any of the Brazos County inmates used by Ross and Comedy Central's profit making enterprise receiving royalties? Just curious. If not, I am sure all the proper waivers were signed. Captively, of course.

Ross appeared on Real Time with Bill Maher, and both went off on liberals for killing comedy in the name of political correctness. Call me politically correct. I have been called far worse. Jeff Ross Roasts Criminals: Live from the Brazos County Jail? Not funny.

Saturday, June 13, 2015

The Bully

I can still hear his voice. Scratchy, high pitched, with a long drawl that punctuated words for emphasis. I met Charles Sebesta in 1992, shortly after leaving a civil firm and going to work for a criminal defense lawyer in Bryan, a short distance from where Sebesta was district attorney. I had never practiced criminal law. Everything was new. New law, new clients, new to dealing with prosecutors.

Amongst all these new things, Charles Sebesta stood out.

The reporting on Sebesta's prosecution of Anthony Graves, and Graves' conviction at Sebesta's hands for capital murder and resulting death sentence have been throughly documented, perhaps best by Pamela Colloff in her extraordinary Texas Monthly piece from 2010. However, it was Graves' comments to Colloff after the disbarment news broke concerning other Sebesta prosecutions that hit me where I lived:
'I think this is a great first step,' [Graves] said. 'But a lot of people in Washington and Burleson counties were prosecuted and convicted by Charles Sebesta, and some of them are still behind bars. All of those cases need to be examined, too.'
Although his jurisdiction included larger Washington county, Sebesta's primary office was in Caldwell, the county seat of Burleson county. He held court in his office on the top floor of the courthouse, down a long hallway next to a set of narrow stairs that led (and still lead) to a side entrance to the district courtroom. The space is now occupied by a district court judge.

Colloff notes in the TM story hyperlinked above about the Sebesta's disbarment:
It was a stunning reversal of fortune for a man who was, for decades, the most powerful elected official in Burleson and Washington counties.
The newbie criminal defense lawyer I was in the early 1990's thought so. Sebesta WAS the most powerful elected official in, particularly, Burleson county. He was not afraid to bully, cajole or just knowingly smile at disagreement. To this end, like Graves' comments, it was finding of fact number 10 from the Judgment of Disbarment that was the most jarring to me:
Graves presented an alibi defense at trial. The defense centered around witnesses that put him in Brenham, Texas on the night of the murders. Yolanda Mathis ("Mathis") was Graves' girlfriend and had previously testified at grand jury that she had been with Graves during the critical time period on the night of the murders. After being sworn in and placed under the Rule, but before the defense called her to the stand at trial, and while Mathis was not in the courtroom, Sebesta stated in open court that:
Mr. Sebesta: Judge, when they call Yolanda Mathis we would ask, outside the presence of the jury that the Court warn her of her rights. She is a suspect in these murders and it's quite possible, at some point in the future, she might be indicted. I don't know. And I feel outside the presence of the jury that it would be proper to warn her of her rights.
Sebesta had no evidence or information tending to show Yolanda Mathis was a suspect or had any involvement in the murders. Whether the result was intended or not, Yolanda Mathis refused to appear as a witness for the defense after this false statement was uttered to the court. Sebesta's statement to the court was false and in violation of Rule 3.03(a)(l).
The statement above quoted was on the record in a capital murder/death penalty case. Can you imagine the number of times some variant of this tactic was used in service of securing capitulation in cases Sebesta convinced himself about? This was the kind of thing the defense bar got from him. I never tried a case against Sebesta. I was intimidated by him. That is no excuse. You have to push back on bullies. A quarter century after meeting him I try and take solace in that he hardened of my resolve to become a better criminal defense lawyer. It is little comfort, even after this span of time.

Sebesta's protestations about the accusations against him have been, up until the actual grievance proceedings, very public and vocal. As of this writing he still has an active website deriding the accusations against him. Sebesta had public comments about the complaint to Maggie Kiely of the Bryan/College Station Eagle in January, 2014. All the more ironic then, when it came time to decide whether the grievance proceedings would subject to public viewing in a court of record or a private proceeding before the grievance committee, Sebesta chose closed doors.

Importantly, Brian Baker was the presiding member of the evidentiary panel which made the findings and conclusions resulting in the Judgment of Disbarment. Baker is a prosecutor. His father is a prosecutor. Brian is first assistant district attorney for Brazos County. I was part of a team that tried a Capital Murder/Death Penalty case against him.

One other thing. Brian's boss, the elected district attorney of Brazos County, Texas is Jarvis Parsons. Jarvis is African American. Brazos County is now the largest county in Texas with a district attorney of color. Not exactly relevant, but worth a note.

I will be in Burleson county district court Monday morning. The same courtroom down the back stairwell from Sebesta's old office.

The ghosts live on.