Saturday, August 29, 2015

A Judge's Mistake

Anthony Graves was wrongfully convicted and sentenced to die. This did not happen in a vacuum. Charles Sebesta was not the only domino that had to fall for the worst nightmare in the criminal justice system to occur. More was needed.

When I read Pamela Colloff's Texas Monthly August, 2015 column, Time and Punishment, reciting the story of Sebesta's disbarment proceedings last summer, one sentence leapt off the page:
Graves, who was allowed to attend the entire proceeding, calmly listened and took notes. But when his trial judge, Harold Towslee, testified that he had received a fair trial, Graves quietly stepped outside. 
I am not sure how Judge Towslee's testimony at the disbarment proceedings reached the public domain. The disbarment proceeding was closed door. Regardless, I was disappointed Judge Towslee believed Graves received a fair trial. I had read the disciplinary panel's findings of facts and conclusion of law before reading Colloff's TM story. The complete findings and conclusions can be read here. Pertinent to this post is the following:
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). 
I want to emphasis the last paragraph of the panel finding on this issue: "Sebesta had no evidence or information tending to show [the witness] was a suspect or had any involvement in the murders." Digest that finding for a  moment. Nothing. Zilch. Zero. No evidence, not even rumor tending to show her involvement in the murders.

Judge Towslee's responsibility was to require something other than Sebesta's say-so to support this gambit to intimidate Yolanda Mathis: "She is a suspect in these murders and it's quite possible, at some point in the future, she might be indicted." Okay, the panel did not find Sebesta intended to intimidate Mathis into not testifying, but Jeez, what else could it have been? Does anything else makes sense? Sebesta received an obvious tactical trial advantage if Mathis did not testify. Given this, why was he not made to proffer facts to support what he claimed? The claim was found to be specious by the panel. The facts did not change. The evidence found by the panel implicating Mathis was just as specious when Sebesta originally uttered the words.

The disbarment panel's finding, admittedly, does not rule out the possibility that Judge Towslee actually required a proffer of evidence on the issue. Given their finding, however, it seems unlikely. If there was a proffer, and Sebesta "warning" to the witness was allowed to stand without correction, then the damage caused was even worse.

A judge's most effective tool is their authority in the courtroom. This authority should, partly, act as a check on the exercise of kind of raw, unbridled prosecutorial power Sebesta's statement puts on display. I know Judge Towslee. He is a good man. I have tried two cases to juries in front of him, one civil, another criminal. He is retired and taken senior judge status. In fact, but for a state motion for continuance, I would have tried a DWI case in front of him a couple of weeks ago in Brazos County.

As much as I like Judge Towslee, Charles Sebesta's pell-mell prosecution of Graves did not happen in isolation. It was wrong then, and Judge Towslee should not continue to compound fallacy by not recognizing the mistakes. He should acknowledge this incident illustrates at least one example of why Anthony Graves did not receive a fair trial.

Saturday, August 22, 2015

Ode to Shirley

She adopted him after she passed her child bearing years. Shirley never married, but loved her son, named Bryson, as her own until he died suddenly, tragically in a horrific multiple vehicle wreck traveling home to Bryan from Prairie View A&M University. The wreck claimed 3 other lives and seriously hurt another. Bryson was 18 years old.

I have written about the non-traditional way I came to the criminal defense. I worked during law school as a runner and deposition summarizer for a personal injury firm in Houston. I tried a few personal injury cases and sat second chair for others while working for the criminal defense lawyer who taught me just about everything I know about practicing criminal defense. I did enough personal injury work eventually to be board certified in personal injury trial law for 15 years, 12 of them overlapping my criminal law certification.

Shirley stands out among my personal injury clients. The journey Shirley and I embarked on could fill a dozen blog posts. The case concluded in 21 trial days in a rural courtroom with a bevy of lawyers. The trial so overwhelmed the small courthouse that jury selection was held in the activity center of a nearby church because the courtroom was too small for all the potential jurors, lawyers and support staff.

It was a case I inherited because the out of town law firm Shirley originally hired later fired her as a client. You see, Bryson was not legally adopted. Like so many of the working poor, Shirley, who scrimped and saved all of her life, did not have the money for formal adoption. She and Bryson's biological mother, then in financial straits, knew each other growing up. They agreed on adoption before Bryson was born, and in an act of formality and solemnity for them, if not the law, trekked to a notary public three days after Bryson's birth with a hand written agreement of adoption, both considering it then complete.

That steadily yellowing piece of paper was enough to enroll Bryson into public schools. It was enough for Shirley to authorize vaccinations and secure medical treatment for Bryson. It was enough to allow public display of Bryson's remarkable sketching and drawings. It was enough for every ordinary purpose except to establish Shirley's legal status as Bryson's mother and statutory beneficiary under the Texas Wrongful Death Act. According to it, she was a legal stranger to him.

When the out of town law firm Shirley had originally signed with found out that no formal adoption occurred, they dropped Shirley as a client. I should really thank them. If not for their withdrawal, I would never have met this remarkable woman.

The unfairness of the judicial interpretation of the Texas Wrongful Death Act's language was manifest in Shirley's role in Bryson's life. Although he knew his biological mother - in our town it was inevitable he would know - Bryson well understood who his real mother was. Shirley carried Bryson to church at Lee Chapel off Washington Street in Bryan every Sunday. Shirley kept and encouraged Bryson's increasingly sophisticated drawings from a young age. Shirley instilled in Bryson the values that caused his teachers at Bryan High School to beat a path to testify about him in the small courtroom in that rural courthouse.

We conceived of a strategy that involved both Shirley and Bryson's biological mother to make an end run around the rule that equitable adoption would not support a wrongful death claim. To their credit, most of the insurance companies involved in the litigation settled with Shirley and Bryson's biological mother. We proceeded to trial against a lone defendant. We thus became a minor litigant at trial amongst the remaining families who had lost so much. With the money she received, Shirley purchased a home and moved out of the apartment housing she lived in all those years. It made her happy to be a homeowner, although she did gripe about the property taxes. I expected no less.

Shirley loved bingo and played every week, even after her cancer diagnosis. She fought that cancer with quiet dignity until the day it claimed her life. When Bryson died she had gone deep into her frugal pocket to buy a black marble headstone to mark his gravesite.  Bryson was interred at Oakwood cemetery off San Jacinto Street near the apartment Shirley lived in all those years. She visited often before her own death.

Shirley was laid to rest for eternity next to her only child.

Sunday, August 16, 2015

A Small Justice

Criminal defense work entails mainly the small victory interspersed with damage control. Yes, the two word verdict happens, and it is great, but more often, success is measured in smaller terms. When the smaller variety happens, it is made sweeter when the client is truly deserving. This week I had one of those victories. The venue was not a courtroom. Instead it was a sparse office on the third floor of the Cain Building on the Texas A&M University (TAMU) campus.

TAMU police have had a "bait bike" program on the campus for several years. Yes, that would be correct, a bait bike program. Metro areas have bait cars, we have bait bikes. Nevertheless, it has been successful in catching thieves mainly stealing unlocked bikes, taking them off campus and selling them on sites like craigslist.

There are a couple of issues with the program. Bikes are ubiquitous on the TAMU campus. There is an unwritten rule about using an unlocked bike on the TAMU campus - if you need it, use it - but return it to where you found it. The other is international students use of "community" or feral bikes. This last problem is what led my client into the waters of the criminal justice and TAMU disciplinary systems.

My client is doing post-graduate work in an engineering program. The client has an impeccable academic and personal record. The client is also an international student, living in a small, lower rent apartment with 3 other students from his home country. In addition to post grad work, my client works on campus. The client had been told by a roommate who graduated and left for home that a bike they had used was in one of the racks on campus and was available for my client's use as the graduating student no longer needed it. The bike had been handed down by another international student. It was, as I wrote earlier, feral. A pretty specific description and location was given. Thereafter they communicated several times and each time the former roommate urged again use of the bike.

One night two months ago, after a long day of school, work and around midnight, my client was walking by the bike racks his former roommate had communicated contained the bike. My client's cell phone battery had died. They were tired and still had about a half mile to get home.
After a brief hesitation, they looked through the racks, found what the client thought (and does) match the bike described by the ex-roommate, jumped on it and pedaled the now faster trip home.

Five minutes after getting home, there was a knock at the door, and three uniformed TAMUPD officers tracking the GPS on the bait bike, were at the door. Ultimately my client was arrested for theft (bike valued at $300) but TAMU also sought to discipline as a violation of their theft student disciplinary rule. My client had no idea what the term "bait bike" meant.

Anyone who deals regularly with university discipline proceedings understands they can be problematic. Stephen Gustitis has written on the issue in an aptly entitled article, University Discipline, The Illusion of Due Process. TAMU rule violations are typically alleged so generally even innocent activity can be alleged to have been violated. In my client's case, the TAMU violation did not allege my client intended to deprive the owner of the property, just that they knew the bike they rode away was not theirs. Any number of circumstances could ensnare an innocent given this kind of allegation of rule breaking.

The violation is considered minor for TAMU purposes, so the meeting with the TAMU official was informal and not recorded. For my client, however, it was anything but minor. The client was accused by the TAMU of being a thief. Their culture and family recoiled. There is also the practical aspect of the student visa giving legal status in this country. The accusation, albeit primarily the criminal one, jeopardizes their ability to maintain legal status in this country. A TAMU disciplinary record could nevertheless make a difference in finding work after being degreed as well as permanent residency status.

This is where justice comes in.

The hearing officer, an individual young, nervous, and of small stature, listened to my client tell their story. Under TAMU rules, I act as advisor only, I play no advocacy role. The hearing officer took the written letter from my client's boss at the library that explained that items of chattel property like bikes were traditionally shared and handed down after graduation to other international students. We were excused after an hour of meeting so the hearing officer could think about what they had: The TAMUPD report, our documents, and what my client had said.

After ten minutes, the hearing officer summoned us back in. The small statured hearing officer stood tall and said although the way the charging letter had alleged the violation occurred would make a finding of responsibility technically a correct one, they were going to instead make a finding of not responsible.

Justice was done. My international client was ecstatic.

In his clipped english my client observed, "This gives me confidence in the U.S. system." The client then turned and walked north toward their apartment. I walked south in the dog day August heat, past the uncompleted renovations of Kyle Field, on to my car with those words still ringing in my ears.

A small success. An important success.

Saturday, August 15, 2015

Of Idiots And Criminal Justice

I have written before about living with a special needs child, and the challenges obvious and discreet. A discreet benefit is insight into those on the fringe in the realm I inhabit in the criminal justice system. By this I mean the mildly intellectually disabled and those suffering mental illness. Their conduct is still often measured by a yard stick not of individual circumstance, but the measure against which most others are compared. This has always been the case, but in varying degrees been plastered behind a veneer of tolerance.

And so, in reading  W. Somerset Maugham's The Painted Veil I happened on this passage:
But there was one child that she could not grow used to. It was a little girl of six, an idiot with a huge hydrocephalic head that swayed to top-heavy on a small. squat body, large vacant eyes, and a drooling mouth, the creature spoke hoarsely a few mumble words; it was revolting and horrible; and for some reason it conceived an attachment for Kitty so that it followed her about as she changed her place from one part of the large room to another. It clung to her skirt and rubbed its face against her knees. It sough to fondle her hands. She shivered with disgust. She knew it yearned for caresses and she could not bring herself to touch it.  
Maugham's character, Kitty Fane, is an attractive yet shallow young woman thrust by circumstance into interior China of the 1920's and the midst of a cholera epidemic. She finds a measure of emotional depth in experiencing that desperate time, working at a convent ministering to abandoned and orphaned children.

Well, except for "It." The passage continues:
Once, speaking of it to Sister St. Joseph [Kitty] said that it was pity it lived. Sister St. Joseph smiled and stretched out her hand to the misformed thing. It came and rubbed its bulging forehead against it.  
'Poor little mite,' said the nun 'She was bought her positively dying. By the mercy of Providence I was at the door just as she came. I thought there was not a moment to lose so I baptized her at once. You would not believe what trouble we have had to keep her with us. Three or four times we thought that her little would would escape to heaven.' 
Kitty was silent. Sister St. Joseph in her loquacious way began to gossip of other things. And next day when the idiot child came to her and touch her hand Kitty nerved her self to place it in a caress on the great bare skull. She forced her lips into a smile. But suddenly the child, with an idiot perversity, left her; it seemed to lose interest in her, and that day and the following day paid her no attention. Kitty did not know what she had done and tried to lure it to her with smiles and gestures, but it turned away and pretended not to see her. 
Literature, at least good literature, is a window into attitudes of the time written. Maugham embraced the dark parts of his characters and we recognize them in ourselves. This post, however, is not about Maugham's own disability (stammering), his society's view of sexual orientation, or his attraction to those who ill treated him. Instead, this post is about attitudes not changed, at least where they most matter: The criminal justice system. Here, more than lip service is required. It is in this crucible our real attitudes are exposed to the world by those we imprison and segregate from ourselves.

This crucible promises exclusion of the clinically diagnosed mentally disabled from the death penalty, yet allows them to be re-defined into a legal category of offender nevertheless eligible for death by the State. It is a crucible that  uses incarceration to segregate the mentally ill. It is a crucible that in it's own kind of shallowness feigns tolerance, but is actually intolerant of it.

Maugham's great grandson, by the way, is a autistic savant.

Sunday, August 9, 2015

Musings on Privacy

I was reading a review in Slate of a newly found short story by F. Scott Fitzgerald this week. The short story, Temperature, is one of his end of life works. A passage from the review struck me in a way having nothing to do with Fitzgerald or his ever fascinating oeuvre of work.
The truth is that in [Fitzgerald's] day the short story was, like the movies, a popular entertainment. Published in magazines like Collier’s or the Saturday Evening Post, they helped people while away their weekday evenings before television was invented. 
It struck me if the short story form gave way to television, television has in turn given way to the internet. The internet now permeates the way we entertain ourselves and function in every conceivable way. I was recently talking to someone about calling directory assistance for a telephone number. I was informed by my conversationist they had never called directory assistance - they just went online to get the telephone number.

I am not complaining. Though closer now to 60 years of age than 50, this is not a screed on modern technologies. Instead, these are musings on how far behind fourth amendment law is on privacy.

Almost 50 years ago, the Supreme Court of the United States (SCOTUS) heard a case involving a federal investigation of illegal gambling activities. FBI agents placed an electronic eavesdropping device on the outside of a telephone booth that Charles Katz used to place illegal bets and get other gambling information. Based upon information recorded from his phone calls, Katz was convicted of federal anti-gambling law violations. Katz challenged the conviction in part on the ground that his phone conversations were recorded illegally.

Justice Potter Stewart's SCOTUS majority opinion reversing Katz's conviction centered on the physical protection that Katz had given to his oral communications by going into a phone booth. In this way, Katz's presence in the public phone booth was not as important as what he did upon entering the phone booth - close the door. "[W]hat he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear." Justice Stewart wrote.

But it was the "reasonable expectation of privacy" language Justice John Marshall Harlan used in his concurrence that has been seized upon as the litmus test for privacy through the years. Though he did not write the majority opinion, Justice Harlan wrote of "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"

Fast forward to 2012 and a SCOTUS decision confronting the warrantless attachment of GPS tracking device to a Jeep Cherokee belonging to Antoine Jones. The District of Columbia Police suspected Jones of narcotics trafficking using the Jeep Cherokee. SCOTUS ultimately agreed with Jones, but the court was split on the reasons.

Justice Scalia wrote the majority opinion, but used non-Katz based reasoning not shared by the rest of the majority. Justice Alito wrote one concurring opinion, employing Katz reasoning of "expectation of privacy." Justice Sotomayor separately concurred with the judgement, but differed with both Justices Scalia, and more importantly, Justice Alito on the details on the expectation of privacy to which not only Jones, but society, should expect in the face of changing technologies.

In a world in which GPS technology has become ubiquitous, where every smart phone has a GPS application, I would ask this: What expectation of privacy are we as a society entitled? If a person disables their GPS smart phone application, goes "old school" with a map, the person is demonstrating a subjective expectation of privacy. Who does this anymore? Certainly almost no one under 35 years of age. Like my call to directory assistance, it is an anachronism. So though I may go old school, most of society does not.

In the larger picture, the public is willing, in my view, to tolerate much, much less privacy than when SCOTUS decided Katz 50 years ago. Just take the facts of Katz. Never mind that a phone booth is no longer to be found. - anywhere. Not that it makes a difference. People daily demonstrate a willingness to speak on their cell phones about anything and everything in public. Just head to your nearest bookstore or library and listen for the cell phone conversations people are willing to expose to the public.

More to the point, most everyone, myself included, share parts of themselves on social media. Twitter, Snapchat, Instagram. In the next 10 years today's teenagers will mold a world where experiences will be shared, with commentary and without filter, using applications such as Periscope. This is our world now - selfies, filmmaking, photography, and communication of most every individual detail. This is the new paradigm - diminished privacy.

I do not have to like it, but the technological world Katz and I inhabited 50 years ago has changed as dramatically as the one inhabited before Johannes Gutenberg introduced the world to movable type in the 15th century.

Sunday, August 2, 2015

Tilting the Death Penalty Playing Field

While on holiday, I read the address of retired Supreme Court of the United States (SCOTUS) Associate Justice John Paul Stevens to the American Bar Association's Litigation Section on July 31, 2015 in Chicago. His remarks addressed the Supreme Court's 2014-15 term. Included were observations on Glossip v. Gross - the death penalty cocktail case - and Justice Breyer's dissent calling for a full review of the death penalty in America. Justice Stevens launched his discussion by observing Justice Breyer's dissent argued the growing number of states either abolishing the death penalty outright, or, while leaving it on the books not utilizing it, evidenced a growing national consensus against the death penalty.

Justice Stevens argued this could actually be used against eighth amendment based abolition by SCOTUS:
For those who continue to believe that the issue is best resolved on a state-by-state basis, Nebraska's decision [to abolish the death penalty] supports the view that we can safely rely on the democratic process to put an end to this form of cruel and unusual punishment.
I have lived through the entirety of the abortion debates, still raging more than forty years after SCOTUS supposedly made abortion on demand a constitutional right. What I have come to realize is any SCOTUS decision declaring a state law unconstitutional is a gift to those who wish to legitimately claim being frozen out of the political process.

However, Justice Stevens then made the case why state by state abolition is not the right way to go constitutionally:
But I am persuaded [Glossip v. Gross] actually enhances the need for a prompt nation-wide solution. For as the number of individual citizens opposed to this form of punishment continues to increase, the pool of jurors not subject to valid challenges by prosecutors continues to decrease. It  may have already become impossible to obtain a fair cross section of impartial jurors in death cases because the Supreme Court has endorsed a standard for determining the eligibility of jurors in such cases that puts the thumb on the prosecutor's side of the balance. As more and more people become convinced that capital punishment is unwise as a matter of policy, the risk that juries in death cases will not represent a fair cross section of the community will continue to increase. The inability to obtain a truly impartial jury in such cases may well provide the basis for a nation-wide solution that brings the United States to the point that most civilized nations reached long ago. 
Justice Stevens' argument is legally technical, time consuming to explain and therefore not likely to be bandied about on twitter or talk radio. He nevertheless hits the nail on the head for those who understand the nuts and bolts death penalty problem he uses to justify a national, not a state by state, resolution of the issue.

Trial court judges have immense discretion to allow challenges for cause against potential jurors who cannot follow the law. These challenges result in a potential juror being excused without either side using the limited number of peremptory strikes allotted to eliminate objectionable jurors. A potential juror who has qualms about the death penalty will generally be a less desirable potential juror for the state. If the state does not have to utilize a precious peremptory strike against the potential juror, it is one more they can save to use against another objectionable juror.

In death cases this mechanism inevitably works to the advantage of prosecutors.

Why?

To illustrate, below are variations of the "out" questions used to challenge potential jurors either in favor or opposed to the death penalty.
[Prosecution Challenge Question]: Knowing you oppose the death penalty, is there a set of circumstances in which you could answer the questions in such a way which would nevertheless result in a sentence imposing the death penalty? 
[Defense Challenge Question]: Knowing you support the death penalty, is there a set of circumstances in which you could answer the questions is a way which would nevertheless result in a sentence imposing life without the possibility of parole?
Michele Esparza laid the argument out to me years ago. It is much easier for a potential juror who favors the death penalty to say they could envision circumstances in which they could forego death in favor of a sentence of LWOP than a death penalty abolitionist to say they could envision circumstances in which they could actually impose the death penalty.

So much about the death penalty justifiably focuses on other things such as actual innocence and intellectual disability. However, at the trial court level, it is the jury actually seated, their individual belief systems and focus which is critical. Will their focus be on the inevitable brutal death facts of the victim? Or will the jury be listening for the mitigation evidence focusing on what brought the defendant to death's door?

Death penalty trials are much about whose narrative the individual jurors will listen and believe. By narrowing the pool of potential jurors to those who favor the death penalty, the more likely prosecution aggravation evidence and downplaying of mitigation evidence will win out. Defendants are yoked already to jury panels that less and less reflect a cross section of the community. Allowing challenges to the growing number of jury panelists who communicate opposition to the death penalty due to policy considerations such as cost and lack of deterrence further narrows and tilts the jury selection playing field toward the state.

This may not be sexy, but the tilting of this critical stage is harder and harder to ignore when debating all that is wrong with the death penalty process.