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.