Wednesday, December 28, 2016

Goodbye...For Now.

It seems appropriate that the end of the calendar year also signals the end of regular blog posts at Monkey Slough, at least for a few months. When I started the blog, I set a goal of posting at least once a week. In the two years (more or less) this blog has been active, I have met this goal with 131 posts.

Unfortunately, at least for the blog, the first quarter of 2017 looks especially demanding. Thus, I have decided to stop regularly posting until at least the middle of April. If something happens that I think requires comment - for example if the Supreme Court of the Unites States decides Moore v. Texasa post will appear. I have been following the issues litigated in that case for so long now - actively since 2009 - that the SCOTUS decision in that case is too important not to post about.

In the meantime, please take a gander at archived material if so desired. I tried to write honestly about local Brazos County criminal justice issues. The series of posts about my county's lack of pre-trial diversion and lack of use of cite and release involving personal use amounts of marijuana has been popular, as has the three part series "Death Penalty Capital U.S.A."

A couple of individual posts I return to and re-read on a regular basis are a paean to one of the most unique clients I have known in "Ode to Shirley," and "To the Kid I Saw In Target Yesterday," about an encounter my autistic son and I had at the namesake retailer.

So, to quote from that noted sage Truman Burbank..."Good morning, and in case I don't see ya: Good afternoon, good evening, and good night!"

Monday, December 26, 2016

Being Taught Lessons In Bonham, Texas

On the high holidays, my family travels to southern Oklahoma. My in-laws live just above the north side of the Red River bottom. Most mornings while visiting, my autistic son and I make the 20 minute drive south into Texas, to Bonham, to take our breakfast. Like his father, my youngest son is an early riser.

He is partial to McDonalds pancakes. I like their coffee. So McD's it usually is.

At sunrise on this past Thanksgiving, after crossing an aged truss bridge spanning Oklahoma into Texas my son yelped from the backseat. I dutifully pulled off the almost empty blacktop and snapped a photo of the Thanksgiving morning sun breaking over a ground mist. The resulting photograph has provided a kind of ill defined incandescent hope for the future this season. Perhaps it is nothing more than some mornings the synapses fire just a bit quicker. Perhaps it is nothing more than paying attention rather than living by rote.

So it was then that 15 minutes later we reached our Thanksgiving morning destination. As we approached the McDonald's counter, waiting to greet us was a woman I guessed to be 65 years old, graying hair neatly pinned up and back, and wearing glasses.

I imagine working the counter of a McD's on a Thanksgiving could make anyone cranky, but not so this gracious lady. She leaned down into my non-verbal son's line of sight and said, "Good morning." She then proceeded to save us $3.00 on breakfast while chatting him up. She told him the money saved could be used by Santa Claus while winking, "If you've been a good boy, of course" to which I demurred, as parents will do. "Santa's gonna run outta money before he gits to me" she then said, sliding our breakfast across the counter.

Then an older man with in a Christmas sweater, wrangler jeans and a cap walked up. You see, when I visit, there is always a bevy of older men, congregating like wild game to a morning waterhole for breakfast at that McD's. I am sure another group of men met at a local cafe a generation ago, but in what is probably a sign of our times, this group meets at the McD's to sip coffee, to talk their politics, and of course, gripe about all things cattle.

This man in the sweater is different. I have been talking my son to this McD's for maybe 5 years, but only during the times I travel to my in-laws for holidays. I do not think I have been there for 6 to 8 months. Yet this old man knows my son and never do we cross the threshold of this McD's without him making a point to say a good word. Heck, he waived at us before we got inside - it was like he had been waiting for us since last spring.

He seemed visibly older this Thanksgiving, stubbled whiskers framing a gaunt face. He had told me once - last year - he had a son, maybe a nephew who was "special" as he put it. He too, leaned down, senior coffee in one hand, hugged my son and told him hello and asked how he was. I answered and he gave a side hug to my son and smiled at me before returning to his coffee and conversation.

Then Christmas Eve, it happened again. This time my autistic son and I were patronizing the Brookshire Brothers grocery store near the McDonalds I write about above. As we checked out, the cashier asked "do you have a Brookshire card?" Like many grocers, Brookshire Brothers uses this card to promote loyalty by saving frequent customers money. I explained to the cashier, alas, I had no such card. I was in the midst of wrangling my son and paying the cashier when the woman behind me stepped up and handed the cashier her Brookshire card. Just like that, I saved $5.00 on $25.00 worth of purchases.

"Merry Christmas" this generous woman said with a smile.

Merry Christmas to you as well, I told her. And to you, Bonham.

The cynic was nigh,
And said with neither pretense, nor sly,
'You, my dear sir, will be taught lessons
In of all places, Bonham, Texas.'

Saturday, December 24, 2016

Speedy's Weed

Texas A&M football player Speedy Noil was arrested for Possession of Marijuana (POM) on Tuesday, December 20, 2016. The story has been run by ESPN, NBC Sports in one form or another. Other than Brent Zwerneman's story in the Houston Chronicle (Zwerneman lives in College Station), the most detailed of these came from one of the first to publish, our local newspaper, The Bryan College Station Eagle. According to The Eagle: 
 Noil's arrest stems from a complaint about a loud party just before midnight Friday. According to court documents, the officer could smell marijuana as he walked up to the building and made his way up to the third floor apartment on Sterling Street. As he drew close, the officer said he learned that the noise wasn't a party, rather, it was coming from a TV, the documents state, adding that when he knocked on the door, Noil stepped out and shut the door behind him.
Once quizzed about the smell of marijuana coming from the apartment, Noil became "verbally defensive and overall uncooperative," resulting in other officers responding to the scene, according to the report.
Noils declined to give consent to allow officers into his apartment, where he lives alone, authorities said, adding that a judge then signed off on a search warrant.
About 4.1 grams of pot was discovered in a cigar package in the kitchen of the one-bedroom apartment, as well as .9 grams of a marijuana blunt found in the closet of his bedroom, authorities said. (my emphasis added).
All the national news outlets were quick on the sensational: Drugs! Possession of less than 2 ounces of Marijuana! DRUGS! OH THE HUMANITY!

Part of the story is Noil's past history of scrapes with the law and the TAMU athletic department. These are separate issues. I want to concentrate on his instant arrest of POM. It would not matter for the points I make here how much past trouble he had been in, nor that he is an elite athlete on the NFL radar.

Noil's instant arrest, at least from my point of view, is silly and illustrative of what is wrong with POM arrests not only in Brazos County, but the Great State of Texas. The reasons? Noil was found, at best with (the story says "about," which usually means less), 5 GRAMS of marijuana IN HIS HOME.

2 ounces of marijuana is the equivalent of 56.7 grams. Thus, had Noil been found in possession of more than TEN TIMES of the amount found in his home, he would face the same criminal consequence for which he was arrested. Yep, to me, that is pretty silly.

Neither was Noil huffing and puffing his evil 5 grams of weed in a car while endangering traffic by either his impaired driving or by distractedly trying to load his bowl with ganja and driving simultaneously. Nope, he was at home, minding his own dadgum business, playing his television too loud.

Of course he need not have been arrested at all. As I have written before, law enforcement is allowed to cite and release instead of arresting individuals for possession of misdemeanor amounts of marijuana.

Instead, Noil had to wait while a judge was found to sign off on a search warrant, resulting in a search of his home, involving, I'm sure, several CSPD officers taken off the streets to, mind you, turn over every nook and cranny of the space Noil calls home. The whole process probably took several hours. And the result? The uncovering of (GADS!), maybe 5 grams of marijuana.

I really would like to review the affidavit supporting the request for the search warrant. I understand the odor of marijuana part, but any law enforcement affidavit that contains language that an individual refusing consent to search of his home became "verbally defensive and overall uncooperative" to support a search has issues with probable cause. But this is another topic, perhaps for another time.

5 GRAMS of marijuana. In a HOME. Arrest. $2000 bond. Formal Charge. Penal Sanctions. Can we not do better than this on both a local and state level? The waste of law enforcement time, local tax dollars and the busted citizen's time, money and resources for a criminal offense that in many, many Texas counties would not have resulted in an arrest is mind boggling.

NOTE: I do not represent Noil, nor do I know who does.

Tuesday, December 13, 2016

Rancor About Death at SCOTUS

Justice Stephen Breyer, whose questions during oral arguments in Moore v. Texas I wrote about recently, filed a written dissent in a SCOTUS denial of certiorari on December 12, 2016 in the death penalty case Sireci v. Florida. I think what was said during oral arguments on November 29, 2016 in Moore provide insight into what happened with the denial of certiorari not only in Sireci, but 3 other death penalty cases, Broom v. Ohio, Tyler v. Louisiana and Stokes v. South Carolina, in what I am calling the Monday massacre. I think oral arguments in Moore pre-cursed events in these cases as well as the multiple grants followed by denials of stays of execution in Smith v. Alabama last week.

Chief Justice Roberts grilled Moore's lawyer, Clifford Sloan, literally from the jump of oral argument in Moore. Note Justice Kennedy, the key swing votes in all death penalty litigation in front of SCOTUS, tried to beat Chief Justice Roberts to the punch:
JUSTICE KENNEDY:  I -- I -- excuse me, Chief Justice.
CHIEF JUSTICE ROBERTS: That's a long laundry list of objections you have. Your question presented, though, focused only on one, which is that it prohibits the use of current medical standards and requires outdated medical standards. And I think several of the other points you made are not encompassed within that question presented. And maybe there are questions that should be looked at, but they don't seem to be covered by that. I mean, in what -- you mentioned the correspondence with clinical practices. Has that changed? Did Texas similarly depart from clinical practices under the old standard as it is under the new? (emphasis added).
Chief Justice Roberts question hints at bait and switch tactics by Moore's lawyers to get SCOTUS review. Justice Kennedy wanted to press the same point as the Chief Justice - evidenced by his follow up question seconds later.
JUSTICE KENNEDY: I have the same question as -- as the Chief Justice. It -- it just seems to me the question presented doesn't cut to the heart of the case as you describe it. My understanding of your argument -- and again, I don't think it's wholly reflected in that question -- is that whether you use the most current or even slightly -- slightly older medical standards, there is still a conflict. Am I right about that, that that's your theory? (emphasis added).
Sloan began to answer Justice Kennedy's question but was interrupted by Justice Kagan who gave Sloan a way to answer Justice Kennedy's question - that these medical standards and the Briseno factors are "flips sides of the same coin." This exchange made it obvious, at least me, that this issue is a significant bone of contention. When Sloan answered "That's exactly right, your Honor" to Justice Kagan's softball, it brought an exasperated response from the Chief Justice that only a listen to the audio  from oral arguments can do justice:
CHIEF JUSTICE ROBERTS: Well, then why didn't you say that? I mean, really, the question presented talks about a comparison between current and outdated, and it seems -- it's pretty dramatic to say you can't use current standards; you're only using outdated. It's quite a different question, is -- you know, they used the Briseno standards and they shouldn't. You don't think they should have used the Briseno standards under the old medical standards, do you? (emphasis added).
This may not seem like a huge deal in a vacuum. Remember though, last term Justice Alito called out the "guerrilla tactics" used by death penalty lawyers during the Glossip v. Gross lethal injection protocol oral arguments. It is not a stretch to view Chief Justice Roberts and Justice Kennedy's exchange with Sloan as amplifying upon this view. That the swing vote, Justice Kennedy, was in the middle of it is significant, especially in light of events that have transpired in the 2 weeks following the Moore oral argument.

In light of these subsequent events, Justice Breyer's side bar during his riff on the arbitrariness of classifying the ID for death penalty exclusion during the Moore oral arguments becomes more significant.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases. (emphasis added).
Then, on December 8, 2016 SCOTUS granted, then denied, granted and finally denied a second time, a stay of execution for Ronald Smith, whose Alabama death penalty resulted from a judicial override of a 7-5 jury recommendation of life. The denial was in the teeth of 4 votes to grant the stay, and exposed an ongoing problem at SCOTUS - 4 votes will get a cert grant, but 5 are required for a stay of sentence or judgement. The New York Times - and others -  have written about disparity in treatment of Smith's applications and the grant of stay in Arthur v. Alabama. My point is different. The Moore oral argument openly displayed divisions which led to the failure of Ronald Smith to receive a stay of execution, and the later Monday massacre of December 12, 2016.

In Justice Breyer's dissent in the denial of cert in Sireci he wrote:
As I and other Justices have previously pointed out, individuals who are executed are not the 'worst of the worst,' but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.
He ends this sentence with citation to his now famous dissent in Glossip, but more significantly then quoted Justice Stevens concurring opinion in Furman v. Georgia, the 1972 case which invalidated the death penalty based on the arbitrariness of the hodgepodge of death eligible crimes then existing, and leading directly to the modern age of hodgepodge state death penalty schemes that supposedly remedied the constitutional problem.
'These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon who the sentence of death has in fact been imposed.' (footnote omitted)). Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence)(this Court, by an equally divided vote, denied a stay of execution).
The last parenthetical to the Smith denial of stay can only be read as a swipe at the members of SCOTUS who would not provide the fifth vote necessary for a stay of execution for Ronald Smith. This would include Justice Kennedy.

I still think Justice Kennedy will end up siding with the liberal wing on Moore. I think Breyer will concur with another extended diatribe on the arbitrariness of the death penalty. I hoped Justice Kennedy was sick and tired of states constantly having to be called to heel in their pell mell attempts to get around death penalty limitations placed on them by SCOTUS decisions. In this conjuring, Justice Kennedy opens a metaphorical can of whoop ass on the states, using Moore as the can opener.

The events of the last week make this conjuring unlikely. Instead it looks from my small town, limited perch that Justice Breyer's entreaties to Justice Kennedy have fallen on deaf ears. This would explain Justice Breyer's rhetorical question in Moore about '[having] all these hearings [at SCOTUS]" - it evokes his frustration at not persuading Justice Kennedy to bite on the bigger issue of death penalty arbitrariness.

 It could be Justice Kennedy is just tired of dealing with death penalty cases to the exclusion of other Court business. If so, this bodes ill for abolitionists. Justice Kennedy IS the fifth vote in death penalty cases in the current make-up of this Court. Without him, a frontal attack on the death penalty will not occur, and a majority does not call Texas to heel on ID exclusion from the death penalty in Moore.

Thursday, December 8, 2016

This Machine Kills Fascists

There was this little "thing" that happened on the Texas A&M University campus Tuesday night. A self styled "Alt-Right" speaker came and poured out hate to a room. But the messenger is not what I want to write about. Instead, it is the protest against the message. How do you push back against a message of hate? Well, ridiculing it is one of the most effective ways. As such then, it surprised me not a bit when I saw the photo below of my friend, Donny Hall, owner the local video production company Studio 82 with a boombox and sign that read "This machine kills fascists."

Yep, that's him with his machine down front in the photo to the right.

Donny decided to attack this spasm of speech-hate with the best of tools - his creativity. Thus, Donny brought his own "machine" to kill fascists. He killed it with sarcasm. He killed it with humor. He killed it with irony. He killed it with my personal favorite, an appropriate blast of hip hop at the assembled white nationalists inside the MSC in the form of Lil Troy's "I Wanna Be A Baller."

Yet Donny and his machine's masterstroke was a continuing audio loop of Martin Luther King's speech "I Have a Dream." Caleb Downs, who covered the protests for the Dallas Morning News, shot video of Donny, His Box, and The Speech, here. The precision of the audio, its resonance, and the technical quality are all what you would expect from a professional like Donny.


The coup de grace? Well, Donny did more than protest. He singlehandedly kept the peace. I picked up the Bryan College Station Eagle Wednesday morning to read their news story when something jumped off the page.
More than once, A&M students could be overheard telling these more vocal group of protesters that they weren't going to engage with police or try to overpower them. At least twice, tension was diffused by someone with a boombox who turned to music to lighten the moment. He also played a recording of Martin Luther King Jr.'s 'I have a dream' speech as several audibly followed along.
What can be said except, well done, Donny Hall, VERY well done.

Several people told me these protests only brought attention to a little band of racists. They said ignore it, let these racists speak to 2 or 3 like minded ignoramuses and then just go away. Perhaps this is right. Perhaps, instead, we live in a time when enough racial antipathy exists that people of their evil ilk can emerge from under their rock and channel that antipathy into something more than just a factional political movement. Perhaps ignoring now means allowing it to fester into something larger and uglier. What I really want to tell the Ignore-And-They-Will-Go-Away crowd is to go read something that articulates why they are wrong better than I ever can: The not often repeated enough speech attributed to Martin Niemöller:
In Germany, they came first for the Communists, And I didn't speak up because I wasn't a Communist; And then they came for the trade unionists, And I didn't speak up because I wasn't a trade unionist; And then they came for the Jews, And I didn't speak up because I wasn't a Jew; And then . . . they came for me . . .
People like Donny will not let this happen. By fighting with his machine and intelligence, Donny took a stand to expose these people for what they really are - Weak.

Tuesday, December 6, 2016

Ties (And Welds) That Bind

Friendship is a funny thing. For example, mine with a friend named Bill. That it was improbable has not kept it from becoming my longest and closest - now for almost 50 years. Bill never crossed the threshold of a university door. Instead, he used that time to start what has become a successful fabrication and welding business that builds everything from drill stem pipe fencing to parts for Navy submarines.

My son Wes wears his hair down to the middle of his back, and with his scruffy whiskers, he is a ringer for Kirk Cobain - a name some random citizen called him while I was with him over Thanksgiving.

Bill and Wes are like our country in miniature. Different as night is from day. Different in age, temperament, and of course, politics. Bill is about as conservative as they come. Wes? All in for Bernie, of course.

Yet, somehow, Bill has become not just a mentor of sorts, but someone Wes trusts. Bill cares about my son not just because of me, but from a place of genuine desire to see him succeed in life, at whatever that may look like, and in whatever capacity.

Three years ago, Wes was finishing a difficult year in high school when I called Bill and asked if Wes could work for him part of the summer. Wes had an aptitude for working with his hands, enjoyed the creativity in the act of building, and as part of this, wanted to learn to weld - something I could not teach him.

Bill never hesitated. Somehow, this young man/child later decided to take Ag Mechanics his junior year in high school. I was a little skeptical. Vocational Agriculture and with it the mandatory membership in Future Farmers of America (FFA)? My. Grunge. Son?

Turned out to be a great decision.

After that first year, Wes applied and was accepted into Advanced Ag Mechanics, despite his hair (just kidding). As part of the requirements of that class, he and 8 other students built projects that sold at the annual school FFA dinner and live auction to raise money for their program. Wes built an Aggie maroon colored, octagon shaped picnic table with a Texas star on top. The dimensions were good, the welds were clean, and his project sold as the highest net (after cost) item at auction.

Of course I invited my friend Bill. They are pictured above, standing together, next to a project that would never been built but for Bill and his willingness to take a chance on a petulant but talented 15 year old.

Just the fact Wes is in FFA leaves me still shaking my head, but not in the way it once did. These young people are motivated, eager to work, and to create in their chosen medium. It is evidence to my cynical self that all things are possible. They are pictured in the photo to the left, this remarkable group of talented young people, cutting up the evenings festivities while sitting at Wes' picnic table.

Diverse, engaged, hopeful. Something I needed to witness. Something that teaches me that even in this most divisive of times, people who are a different as night is from day can find common interests, and not just live, but thrive together.

And most of all? Thanks, brother Bill.

Saturday, December 3, 2016

Texas' Intellectual Disability Idiocy - Oral Argument Edition

Intellectual disability (ID) is important to anyone with intimate knowledge or responsibility for the intellectually disabled. Life experiences tend to mold how we view the world, and it has mine. My 12 year old son is ID, so I have more insight than most in the sub-set of lawyers who have tried an Atkins claim to both judge and jury. In other words, I have both standing and an understanding of ID and why it matters.

Moore v. Texas, an ID death penalty case was argued before the Supreme Court of the United States on Tuesday, November 29, 2016. CCA Judge Elsa Alcala - who dissented at the CCA in Moore - tweeted she was sitting next to former New York Governor Elliot Spitzer. I may not have been amongst the luminaries in attendance for oral argument, but I was there in spirit. The audio of the argument, with written transcript can be found here.

I came away with three major impressions discussed below as they were fleshed out by questions from the Court. First is Justice Kennedy, the swing vote. He was straight to the point on the Briseno factors central to a decision in the case:
JUSTICE KENNEDY: Are you saying that the Briseno factors capture all individuals with intellectual disability?
KELLER: The Briseno factors -- there could be other circumstances or other facts in the record that would bear on the adaptive deficits prong, and that's why the CCA said these are discretionary. These are different ways of phrasing how you do the conceptual, social, and practical --
JUTICE KENNEDY: But the theme is -- of -- of the -- the Petitioner's brief, that the Briseno factors are intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform medical consensus.
KELLER: And the CCA has never said that the purpose of these factors is to screen out individuals and deny them relief.
KENNEDY: But isn't that the effect? 
KELLER: No. Van Alstyne granted relief by looking at the Briseno factors.The four cases I just mentioned, these are cited at page 422. 
KENNEDY: Well, of course, General, there are going to be cases in which the Briseno factors will show disabled, but that's not the question. The question is can they be an exhaustive list. 
KELLER: The Briseno factors are not an exhaustive list, and the CCA has never treated them like that.
The argument the Briseno factors are discretionary? Just baloney. My evidence? Ask a criminal District Court Judge in Texas. Ask them should they decide the Briseno factors should be excluded as part of their Atkins claim determination, whether they think the CCA would treat them as discretionary in the way Keller represents. Heck, just ask the habeas trial judge in Moore - who the CCA decided was wrong - how that went for him.

Keller just flat out prevaricated on Kennedy's main question - whether Briseno carves out a sub-set of the otherwise ID population in order to make them eligible for the death penalty. The answer is yes, it does. The more fundamental issue is whether this is constitutionally acceptable. This mantle was taken up minutes later by Justice Breyer. The critical exchange started when Justice Ginsberg asked Keller why Texas tracks the current consensus clinical definition for statutory ID classification for public school special services and juvenile offenders but not in death penalty cases.
KELLER: [But] as the DSM-5 itself noted, there is an imperfect fit between a determination of -- a legal determination of culpability for Eighth Amendment purposes and a medical diagnosis. I think that this case does present that issue. And since you have those different purposes, it is valid for a State to have a different definition of when someone is morally culpable under the Eighth Amendment versus when someone should be able to get social-services benefit.
Keller's answer here draws an intellectually consistent distinction between the legal purposes served by different definitional descriptions of ID. Thus, the definition for ID for educational support at school for my son does not automatically mean the same definition is required to assess ID in a brutally committed capital crime. The real question is whether this is constitutionally defensible. This went to the heart of the legal issue for Justice Breyer:
JUSTICE BREYER: Well, that's the point. That's exactly the point...That the whole point of Briseno is really to answer the question that you said -- probably should say, no, it isn't really there -- it's to help determine which persons suffering borderline cases of mental disability ought to be executed, or should not be because they are less morally culpable...And then the question is, is it what the purpose of Atkins and the other case Hall was, was it to give each State the right to decide in borderline cases whom or whom not to execute in light of their feelings about capital punishment? I thought it had a different purpose -- unusual in the law -- but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled. That's a real issue.  But I think that this case does present that issue.
KELLER: And what Atkins and Hall said was there's a critical role for the States.
And while States don't have unfettered discretion, they do have some discretion.
Keller is attempting here to thread the legal needle. He cannot say that Texas basically blows off clinical standards in favor of their own set of non-clinical adaptive behaviors that make it less likely that a capital murderer with borderline ID will avoid the death penalty. What he can, and did, argue is that Texas hews to the constitutional requirements that the death penalty ID exclusion decision be "informed by the medical community's diagnostic framework" - whatever the heck that means.

 As oral arguments illustrated, it is a difficult needle to thread.

Finally, an even more fundamental question was asked by Justice Breyer in  his questions earlier to Clifford Sloan, Moore's lawyer.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that the law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases.
SLOAN: Yes, Your Honor. 
JUSTICE BREYER: My suspicion is that there is no such thing, but that's why I asked the question. I want to be sure. [And] if you want my true motive, I don't think there is a way to apply this kind of standard uniformly across the country, and therefore, there will be disparities, and uncertainties, and different people treated alike, and -- and people who are alike treated differently.
Translation? This whole ID exclusion from the death penalty conundrum illustrates the arbitrariness of the death penalty. A Constitutionally based, categorical exemption of the ID from the death penalty should to be uniform. Why should a hypothetically identical defendant committing the identical capital crime be determined to be ID and therefore constitutionally exempt from the death penalty in California, but not in Texas? Bringing the example closer to home, why exempt this capital defendant if the crime was committed in Clayton, New Mexico but not exempt them if the crime was committed across the Texas state line in Dalhart?

Bobby Moore likely has the votes to win. If so, how far will the majority opinion go? Conventional wisdom seems to look for Justice Kennedy to write a watered down majority opinion. He wrote for the majority in Hall v, Florida, which dealt with similar issues. Perhaps as the swing vote in both Hall, and likely here, Justice Kennedy - along with the rest of the wing of the Supreme Court voting with him - has grown weary of the states like Texas and Florida thumbing their collective noses at SCOTUS death penalty restrictions and will go further. I would love for Justice Kagan, who was very engaged in oral arguments, to write, but this is wishful thinking of my part. I believe Justice Breyer will write separately and riff off his Glossip dissent regarding arbitrariness and the death penalty, except in Moore it will be as a concurrence.

Friday, November 25, 2016

Time to Consider....

Below are figures how Brazos County's split criminal prosecution offices - District Attorney prosecuting felonies, the County Attorney prosecuting misdemeanors - compare to counties with a single prosecution office, typically the District Attorney.

Lubbock County and Hays County have been used for comparison. Both have large public universities present in their community and are comparable in population. The financial figures are from each county's budget for fiscal year (FY) 2017. Also included are figures from the Office of Court Administration on filed cases for the calendar year (CY) 2015. These are included to give some idea about the number of new misdemeanor and felony filings each office was responsible for during an identical period of time. Population estimates for each county are from census estimates from July 1, 2015.
Est. population                                                                              215,037

New felony indictments CY 2015                                                     2,229
New misdemeanor filings  CY 2015                                                 3,878                                           Total new filings CY 2015                                                               6,107                                        

County Attorney Office FY 2017                                              $3,179,875
District Attorney Office FY 2017                                              $3,612,335
TOTAL                                                                                     $6,792,210  

Est. population                                                                               299,453

New felony indictments CY 2015                                                      3,688
New misdemeanor filings CY 2015                                                   4,037
Total new filings CY 2015                                                                  7,725

District Attorney budget FY 2017                                             $6,513,233

Est. population                                                                                194,739

New felony indictments CY 2015                                                           909
New misdemeanor filings CY 2015                                                     3,885
Total new filings CY 2015                                                                    4,794

District Attorney budget FY 2017                                                $3,986,030

Lubbock County has 28% more in population than Brazos County with around 1600 more new criminal filings during 2015, but has budgeted $278,000 less than Brazos County for the office prosecuting the filings there in FY 2017. Hays County has 10% less in population than Brazos County, filed about 1300 fewer criminal cases and budgeted $2.8M less for the single office prosecuting criminal cases there than Brazos County did for the two offices doing the work here in FY 2017.

 What I am saying is this: it may be time to discuss consolidating criminal prosecutions in Brazos County into a single office. Not to do so makes less fiscal sense with every passing year.                                            

Saturday, November 12, 2016

It's Alive! It's Ah-live!!

The title of this post was uttered by the irreplaceable Gene Wilder in the 1974 Mel Brooks classic, Young Frankenstein. It is meant as dark humor on the Death Penalty in the United States. When we awoke on Tuesday November 8, 20016 there was reason to believe the Death Penalty was on it's own death gurney. By midnight, the Death Penalty was not only off that gurney, but ready for a metaphorical marathon run.

To understand why, start with the liberal utopia of California.

California has not executed anyone in more than 10 years. There are 741 people on California's death row, nearly three times the 254 in Texas. Dueling propositions Prop 62 and Prop 66 were on the California ballot on Tuesday, November 8, 2016. Prop 62 proposed to replace the Death Penalty with Life Without Possibility of Parole (LWOP). Prop 66, in opposition to Prop 62, proposed to speed up executions by designating trial courts to hear petitions challenging death row convictions, limiting successive petitions and expanding the pool of lawyers who could take on death penalty appeals

What better chance could there be for abolitionists to underscore their narrative that a growing consensus against the Death Penalty exists in this country? Had not recent polling showed national support for the Death Penalty at the lowest level since the 1970s? What better venue than California to translate these polling numbers to popular referendum that this growing consensus exists to end the Death Penalty? 

Ah, but a funny thing happened on the way to Herr Frankenstein's castle.

  Prop 62 lost badly, mustering a meager 46% of "yes" votes to eliminate the California Death Penalty, while Prop 66% hung on to pass with a 50.9 "yes" vote. Prop 66 will likely wreak chaos on state and federal habeas petitions in that befuddled state. Sorting out the fallout is for later. It is enough to write that Californians have spoken rather decisively: They favor the continued option of the Death Penalty.

Next up, Nebraska. Last year, their unicameral state legislature took the Death Penalty off the books as a punishment. The reason? All the fiscal and moral reasons Death Penalty abolitionists trumpet - costs of prosecution, length of appeal, and error rates among those given the ultimate penal penalty. There was also the added value argument that eliminating the Death Penalty through an elected legislature was democratic evidence of this growing consensus.

Unfortunately, there was such a popular outcry over the legislation that a referendum was placed on the Nebraska ballot to repeal the legislative action. And, alas, Igor, November 8, 2016 was not a good night for the bleeding hearts in the heart-land. Over  61% of Nebraskans voted to re-instate the Death Penalty. That folks is a abolitionist butt kicking.

So much for a popular consensus against the Death Penalty.

Finally, of course, is President-elect Trump. He will soon be nominating a Justice to the Supreme Court of the United States (SCOTUS). That appointment will not tip the current ideological balance on SCOTUS - but Justices Ruth Bader Ginsberg (83 years old) and Anthony Kennedy (80 years old) are the two oldest members of SCOTUS. If President-elect Trump replaces either, or both, SCOTUS will be conservative in ways not seen since before Franklin Roosevelt was President.

This means  the machinery of death will not only continue to engage, but a SCOTUS more focused on federalism and individual State's rights will allow States to operate that machinery with much, much less federal judicial intervention.

For example the Death Penalty case Moore v. Texas currently set for oral argument on November 29, 2016. Moore challenges the way Texas determines if capital defendants have Intellectually Disability (ID) for purposes of existing constitutional exclusion from the Death Penalty. Texas has defined ID in such a way that a capital defendant may be clinically ID, but not too ID for Texas to sentence them to death.

My sense is Texas will be called to heel by SCOTUS in Moore. However, this SCOTUS leash will get much, much longer if President-elect Trump and a GOP Senate replace Ginsburg and/or Kennedy. A state-rights oriented SCOTUS would look at the State legal chicanery at work circumventing ID exclusion from the Death Penalty in Moore and collectively shrug their shoulders.

Translation? A Constitutional right with neither remedy nor enforcement.

And the Rule of Law? A Frankenstein. 

Thursday, November 10, 2016

The Election

This blog is in the main a criminal justice blog, and the 2016 election will impact Texas criminal justice in ways large and small. So, for what it is worth, here are shattershot thoughts from local to national.

My local (Brazos County) races were unremarkable. There were no contested races, so I will comment on the closest races to my home that resonate.

I grew up in Houston, so I watched the Harris County DA and judicial races there with interest. Houston may not have the hipster Texas outlier swag of Austin, but it is more diverse, and in ways just as politcally liberal. It was no surprise then that Kim Ogg, a Democrat beat Devon Anderson, the incumbent Republican in the DA race. This outcome was expected - Anderson had made several political missteps in the last year. Ogg is qualified for the office she will take over in January. Expect expanded pre-trial diversion programs, a decision to either not prosecute - or reduce to misdemeanor level - "trace cases" - cases where only a trace amount of drugs (cocaine, etc) are found, and a scaling back of Capital Murder prosecutions.

There were also heavy losses amongst the Harris County Republican heavy judiciary. Murray Newman wrote about the damage done to the Harris County trial court judiciary as a result. Among the incumbent GOP judges who lost was Judge Stacey Bond. I serve with Judge Bond as a member of the Second Judicial Region Capital Murder Appointment Committee. She is intelligent, engaging, and a committed member of this important committee. I never practiced in front of her, but by all accounts Judge Bond was an excellent judge. She should not have been shown the door by a partisan electorate.

At the State level, Larry Meyers, the incumbent Court of Criminal Appeals (CCA) judge who chose to run as a Democrat in his re-election bid, lost to his Republican opponent, former Harris County District Judge Mary Lou Keel. It wasn't close. Scott Walker beat Betsy Johnson to replace the soon-to-be-sorely-missed Judge Cheryl Johnson on the CCA. Hard as it is to envision, expect an even more government-centric CCA.

Which brings me to the national elections. With President Trump and a Republican Senate, the Supreme Court will now add a 9th justice. That new Justice may or may not be in the mold of former Justice Antonin Scalia. Justice Scalia had a cohesive, predictable and consistent view of the Constitution. Say what you will, liberals, about Justice Scalia, but his view of the Constitution included expanded 6th Amendment confrontation clause protections for citizens. He was the leading intellectual force behind this almost revolutionary, revisionist interpretation of the confrontation clause. There is no guarantee his vision will continue with the new appointment.

Sunday, October 30, 2016


 Defined as an "idea or suggestion wildly unreasonable, illogical, or inappropriate," absurd used in a sentence aptly describes the alternatives to replace Judge Cheryl Johnson on the Texas Court of Criminal Appeals (CCA), Place 5.

A story from Peggy Fikac at the San Antonio Express-News gives the best insight I have read this cycle (thanks for the link, Grits for Breakfast) as it pertains to the CCA. The larger picture painted by the story is the seemingly endless debate on partisan election of judges to the courts of last resort in Texas, and whether the CCA and the Supreme Court of Texas should be merged. Our current situation is placed in stark relief by contrasting Judge Johnson's qualifications against the glimpse Ms. Fikac and The Express-News give into the two candidates vying to replace her.

First, the bio from the CCA website for Judge Johnson:
Judge Cheryl Johnson was elected to the Texas Court of Criminal Appeals on November 3, 1998.
Judge Johnson was born September 30, 1946. She received her high school diploma from Whetstone High School, Columbus, Ohio, in 1964. She earned her B.S. in Chemistry from Ohio State University, Columbus, Ohio, in 1968, her M.S. in Inorganic Crystallography from the University of Illinois, Urbana, Illinois, in 1970 and her J.D. with high distinction from The John Marshall Law School, Chicago, Illinois, in 1983. From 1983 to 1984, she clerked for Judge Sam Johnson of the United States Court of Appeals for the Fifth Circuit. She was in private solo practice in Austin, Texas, from 1984 until 1998.
Judge Johnson is board-certified as a specialist in criminal law and is licensed by the State of Texas, United States Court of Appeals for the Seventh Circuit and the United States District Court for the Western District of Texas.
Judge Johnson is currently a member of the State Bar of Texas and the College of the State Bar of Texas. She was formerly a member of the Texas Criminal Defense Attorneys Association and the Austin Criminal Defense Attorneys Association, where she served on the Board of Directors and as Treasurer from 1994 to 1997. She also served as Director of the Texas Association of Attorneys Board Certified in Criminal Law from 1996 to 1997. She has been actively involved in the community, serving on the Community Justice Council's Committee on Offenders with Mental Impairments, as a volunteer attorney for Volunteer Legal Services of Central Texas, and as a volunteer for Literacy Austin.
Judge Johnson is a member of the Berkeley United Methodist Church. She and her husband, Lt. Greg W. Lasley, Austin Police Department (retired), reside in Austin, Texas. 
Here is information from the Express-News story on the two candidates. First is the GOP primary winner, Scott ("No, I am not the Wisconsin governor") Walker:
Defense lawyer Scott Walker says sharing a name with Wisconsin’s nationally known governor helped his bid for the Texas Court of Criminal Appeals, but it was God’s guidance that pushed him over the line to secure the Republican nomination.
If elected, he will get his first judicial experience as a member of the Texas high court that has power over life and death in criminal cases.
'I believe strongly that God led me to run for this office. He has been behind me. I prayed about the election daily,' Walker said in an interview with the San Antonio Express-News. 'I really feel that I was unbelievably blessed in this election, and God has just done what he planned to do all along.'
Let me quickly say I do not begrudge anyone seeking spiritual guidance. It does cause pause to think about the source of legal decision making if Walker replaces Judge Johnson. So much so that I fervently pray we never have to confront our own Judge Roy Moore, the now suspended Alabama Supreme Court Chief Justice.

Yet Walker is the better alternative to the Democratic standard bearer, Betsy Johnson, whose seemingly sole qualification to replace Judge Cheryl Johnson is that she shares her last name.
[Betsy] Johnson also has no judicial experience — it’s not required for a seat on either of the state’s highest courts — and she was removed more than five years ago from Bexar County’s list of lawyers who can represent indigent defendants in felony cases. 
According to the presiding judge at the time, Johnson didn’t want to represent clients if they wanted to go to trial instead of entering a plea. 
As a result, Walker has reaped general-election endorsements from a number of newspapers. The Dallas Morning News called a vote for Johnson 'reckless' and said it has warmed to Walker’s background and approach.
Then I read in the Express-News story the comments of Judge Sid Harle, who had been by far the most qualified of the original candidates to run for Judge Johnson's post. Absurd was the only word that seemed to apply.
State District Judge Sid Harle of Bexar County — who lost a bid for the GOP nod for the Place 5 seat [to Walker]  — said he met Johnson after she was dropped from the appointment list for indigent defendants facing felony charges in 2011.
He said other criminal court judges pressed for the action. Since he was the presiding judge, she came to his office to dispute it.
'I hear this clomping outside my door and she comes storming into my office in, of course, combat boots,' Harle said.
He said he advised Johnson to work as second chair without pay in a couple of trials to prove to the judges she could try a case, but she refused with an expletive.
Johnson, who’s described as partial to unconventional attire such as the combat boots noted by Harle, couldn’t be reached for this report. 
I could be wrong about absurd being the only applicable word to describe this race. Perhaps another adjective often bandied about in an up ballot race this election year also would apply.


Tuesday, October 11, 2016

The Elephant in Our Echo Chamber

Much of what is written in this blog relates to the criminal justice system I live and work in daily. The other system I live in daily is that of my youngest child, Zane. He is 12 years old, non-verbal with cognitive and physical limitations. One of his legs is significantly shorter than the other, causing gait and fall issues. This is compounded by both seizures and the autistic compulsion to contort himself into awkward positions. He is also symptomatic of scoliosis.

I may be a lawyer, but I also wear the hat of small business owner. I have one full time employee and 2 part time employees. I am the sole source of medical insurance for Zane, my dependents and my full time employee. My medical insurer is Blue Cross Blue Shield of Texas (BCBS) and has been for 18 years.

Since Zane's birth in 2003, BCBS has hiked my insurance premium every year - often the maximum allowable under my plan. I will not bore with why I am effectively tied to BCBS, but I am.

Yet I am lucky. I have health insurance. This does not obscure the larger problem of which I write. This past Sunday the Houston Chronicle ran a story by Jenny Deam (warning: some links may be behind a pay wall). The lede to the story:
As Texas' largest insurer [BCBS] eliminated hundreds of thousands of coverage plans for some of the state's sickest patients and asked for double-digit rate increases last year, its Chicago-based nonprofit parent company rewarded 10 top executives with a combined $48 million in bonuses.
This post is not, necessarily, an attempt to bash executives with the BCBS parent company, Health Care Services Corporation (HCSC). There is more from the story by Ms. Deam that leads to my point further down.
When 2016 arrived, Blue Cross and Blue Shield of Texas, HCSC's second-largest division, raised rates 20 percent and eliminated 367,000 plans, including 88,000 in Houston, that gave in-network access to many of the state's top-tier hospitals and specialists. The company said the benefit had become 'unsustainable.' 
Now, with just weeks to go before enrollment opens for 2017, HCSC's five Blue Cross and Blue Shield companies have asked state regulators for another round of rate increases, some as high as 82 percent, for ACA [Affordable Care Act] individual plans.
HCSC is a non-profit corporation.

We have a health care affordability crisis in the United States. It is the elephant in our societal room. This is a public policy issue that must be argued about on the merits or it, along with other policy issues percolating without discussion or real resolution, will result in our driving ourselves off a societal cliff.

That's right. Affordable health care. In an presidential election year in which personalities are at the fore, the silence of debate - and policy proposals - is deafening. In the 2 presidential debates thus far held, health care has been asked about once with no substantive policy discussions about what can realistically threaten all but the most affluent with possible bankruptcy.

I count my blessings. Others are not as fortunate. From another story by Ms. Deam, dated June, 2016 in the Chronicle:
The boy and his dad sit in the glow of the nursery lamp, their shadows wide as they rock together in the big chair. Bedtime is coming. But first there is the machine. 
A switch is flipped, and the medical contraption roars to life with an insistent whine. It looks like a Shop-Vac whose ribbed hose snaps into a special vest slipped over footie pajamas. The power of the machine makes every inch of 11-month-old Jack Faught shake in the hope of loosening mucus in his airways.
I can relate to these folks and their daily experience.
Since last spring, first-time parents Austin and Kyra Faught have stumbled, fallen and risen again after learning their child has cystic fibrosis, a lifelong disease that damages the lungs and pancreas. Left untreated, it could kill their son. If poorly treated, his life could be shortened. Their vision of parenthood forever changed, they threw themselves into battle against his sickness. 
Here is their problem:
Three weeks ago, a new fight landed at their doorstep, one that came with just as many tears and sleepless nights, waged not with medicine but phone calls and fax machines. It was with their insurance company as they begged to let Jack stay at Texas Children's Hospital, home to Houston's only accredited cystic fibrosis center and the team of specialists who were helping to keep him alive. 
Their story is part of a larger one being played out across Houston and the nation as the insurance industry reacts to its changing landscape by moving customers into narrower plans. At a time when millions of lower-income Americans are enjoying insurance coverage, some for the first time, an untold number of middle-class families are discovering that the kind of health care they want and need is slipping from their grasp. 
On the final day of 2015, tens of thousands of Blue Cross Blue Shield of Texas health insurance customers, including the Faughts, saw previous plans expire. Those with serious illnesses had been fretting for weeks over what such a change would mean, especially as word seeped out that the city's top hospitals would no longer be covered. 
How about those who have special needs children and unable to afford health insurance? Sorry, they are SOL. From a September story in the  Dallas Morning News, with a link to a longer story in the Austin American-Statesman.
Texas can proceed with millions of dollars in cuts toward the state's Medicaid program that provides therapy to disabled children. The Texas Supreme Court announced Friday that it declined to review a lower court ruling that would have allowed the cuts to move forward, the Austin American-Statesman first reported.  
Last year, the [Texas] Legislature approved $350 million in Medicaid cuts, mostly toward therapy providers for disabled children. Opponents of the cuts warned that they would disrupt care for tens of thousands of disabled children, especially in rural areas of Texas.
I am not banging on the Supreme Court of Texas for their decision. That recourse to the courts was sought exposes the problem. The problem is at root one of the state legislature's making. This is a policy issue to be fought at either the state of federal level. That is part of the debate we ought to be having - should health care coverage even be a state level issue.

My father has been a practicing obstetrician in the Houston area from more than 50 years. He sometimes says he has delivered half of Houston's population since 1964 - and he is only half joking. He sees the problems from the health care provider standpoint as it has worsened over those years. I see it from the end user standpoint. He and I disagree remarkably about the policy solution, but we both understand it is crippling regardless of whether it is the consumer or the provider. We must engage.

And thank you Jenny Deam for doggedly persisting in your reporting. Journalists like Ms. Deam and the Chronicle are grappling with reduced resources and the ability to report on important issues such as this. It is another problem we as a community must confront.

Another elephant in our echo chamber.

Monday, October 10, 2016

UPDATED WITH SCHEDULED ORAL ARGUMENT Texas' Intellectual Disability Idiocy - Part III

UPDATED 10/22/2016: SCOTUS released the remainder of November and December oral argument schedule following their weekly Friday conference on October 22, 2016. Moore v. Texas has been scheduled for oral argument on Tuesday, November 29, 2016. It is the only case scheduled for argument that day.

ORIGINAL POST: This is the third in a series of posts on Moore v. Texas, currently pending before the United States Supreme Court (SCOTUS). The case presents a legal challenge to the Texas death penalty scheme - how Texas defines and analyzes what are called Atkins claims. Atkins claim proceedings determine whether an otherwise death penalty eligible defendant is intellectually disabled (ID) and therefore ineligible for the ultimate state punishment.

The legal issue before SCOTUS is the use of factors named after the case in which they first appeared, Ex parte Briseno. Moore and his supporters in SCOTUS (amici), the Association of Psychiatric Association (APA), and the American Association of Intellectual and Developmental Disabilities (AAIDD), argue these Briseno factors, and, more generally, the Texas Court of Criminal Appeals (CCA) approach in reviewing Atkins claims, violate SCOTUS's exclusion of the ID from the death penalty. In a nutshell, Moore, the AAIDD and the APA argue the CCA has so disregarded clinical definitions of ID that Texas has violated the prohibition of excluding the ID from the death penalty.

Most of what appears in this post requires some understanding about the clinical criteria for ID and a working knowledge of the primary legal issues in Moore. I would encourage a review of the first two posts here (Part I), and here (Part II). The legal importance is not just the immediate case. If SCOTUS finds Moore's arguments correct it could mean almost fifteen years of Atkins claim litigation in Texas will have to be redone.

Moore's Reply Brief (Reply Brief) to the State of Texas Merit's Brief (State's Brief) was filed on October 6, 2016. The Reply Brief hammers on three issues: First, Moore argues the Briseno factors, contrary to the State's assertions, are not optional in Texas; second, that the Briseno factors, and by extension, the CCA, improperly weigh a defendant's adaptive deficits against adaptive strengths in review of a trial court's ID determination; and third, that medical science does not require a strict causation relationship between intellectual deficits and adaptive behavior deficits. In other words, Moore, the APA and the AAIDD argue there can be more than one cause (called co-morbidity) to the adaptive deficits found to exist in an individual.

In my second post, I attempted to analyze the State's Brief, but deferred a discussion of the fact intensive evidentiary record cited until the Reply Brief was filed. Moore opted for a more concise discussion of the evidentiary record than the State Brief. Nonetheless, it was effective:
At age 13, Moore still lacked a basic understanding of the days of the week, the seasons of the year, and telling time. He spent his days at school often drawing pictures because he was unable to read, write, or keep up with lessons. As the trial court concluded—applying the medical community’s current diagnostic framework—Moore has significantly subaverage general intellectual functioning (as reflected in his numerous IQ test scores under 75, including one relied upon by the CCA); significant and related limitations in adaptive functioning (as evidenced by, inter alia, his abysmal school records and test scores; the fact that he failed first grade and received only social promotions every year thereafter; his withdrawn social behavior; his limited communication skills; and his score of 2.5 standard deviations below the mean on the State expert’s adaptive-behavior test); and all of these characteristics manifested during childhood. It was only by rejecting the medical community’s diagnostic framework, and instead analyzing [Moore's] intellectual-disability claim under its fundamentally flawed Briseno framework—in which the low end of the IQ range was erroneously dismissed, purported strengths were given primacy, the non-clinical Briseno factors were 'weigh[ed] heavily' and an insurmountable and clinically unsound causation requirement was imposed—that the CCA was able to conclude otherwise.
The Reply Brief's final broadside before concluding:
In sum, the CCA reviews Atkins claims to ensure relief is granted only to those individuals whom it perceives as having 'that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.' [citing Briseno] Its distorted (and often arbitrary) approach to analyzing claims of intellectual disability is irreconcilable with the medical community’s diagnostic framework. No other State prohibits consideration of the current diagnostic framework or interprets the three-prong definition of intellectual disability in a similar manner—nor does Texas itself in any context other than the death penalty. 
The briefing in this case is now finished and the case is ready to be set for oral argument. I expect that to be scheduled in spring, 2017.

Wednesday, October 5, 2016


10/11/2016 UPDATE: Oral Arguments were held on October 11, 2016 in Pena-Rodriguez v, Colorado. A transcript of the argument can be found here. Amy Howe from SCOTUSblog summarized the argument, and can be read here. Audio from the argument will be available Friday October 14, 2016 after the weekly SCOTUS conference. It can be listened to online here.

I could not help but smile a couple of times reading Howe's blog post and comparing it against the transcript. For example:
Some justices also appeared skeptical of the argument, made by both Colorado and the federal government, that attorneys can guard against racial bias infecting juror deliberations by asking potential jurors about it during the process of selecting the jury. Sotomayor, for example, suggested that the argument assumes that jurors would be truthful about their racial biases, while Ginsburg observed that many lawyers might not want to ask about racial biases because they don’t want to be responsible for putting the issue into jurors’ minds. When [Colorado Solicitor General] Yarger tried to reassure the court that things don’t actually work that way, Roberts countered, “How do you know that?” One of the problems here, Roberts indicated, is that asking about racial bias when screening potential jurors might alert other jurors who are biased that they should not reveal their biases.
"How do you know that?" Chief Justice Roberts asked the Colorado Solicitor General. "Based on my extensive experience picking juries" replied no Solicitor General, ever.

I only jest, sort of.

The truth is except for members of racial supremacy groups, jury panel members will not disclose racial bias in front of a room of strangers during jury selection. More likely, this kind of panel member has rationalized their racial bias, to have it later exposed during a heated deliberation when facts and jurors are exhausted and racial stereotyping rears its ugly head to fill the void.

If this happens, it is an affront to the administration of justice. Exposing race based deliberations and jury verdicts must be elevated over otherwise valid policy arguments shielding jury deliberations. Based on the arguments I believe both the swing votes of Justices Breyer and Kennedy are going with the liberal wing. If so, this will change post verdict practice in Texas.

ORIGINAL POST: Today, October 5, 2016, the Supreme Court of the United States hears oral arguments in Buck v. Davis, a death penalty case that has received much media attention. The media hook in Buck is the injection of race during his trial. Nevertheless, those waiting for extended oral arguments about the United States Constitution and race in criminal jury trials may be disappointed. The threshold legal issue in Buck actually turns on a rather technical procedural rule.

Return, if you will, to SCOTUS on Tuesday, October 11, 2016 for oral arguments about race, criminal jury trials and the Constitution. The case is Pena-Rodriguez v. Colorado and has some real world application to what happens in criminal courtrooms around the country.

Pena-Rodriguez was accused of what amounts to felony sexual assault after allegedly groping two teenage girls at a Colorado race track. At trial Pena-Rodriguez argued misidentification and presented an alibi defense. After a contentious deliberation, the jury sent a note to the trial judge that they were deadlocked. The judge sent a response with an instruction that in Texas is called an "Allen instruction," or, more descriptively, a "dynamite charge." Colorado must have a very similar instruction. The instruction is meant to light a fire under a jury, and it did. The jury eventually returned a verdict convicting Pena-Rodriguez on misdemeanor charges related to the allegations, but acquitted him of the felony charge.

Pena-Rodriguez was not satisfied with the felony acquittal and the misdemeanor convictions. His lawyers contacted jurors after trial. They found two jurors who said another jury member - "Juror H.C." - told the jury during deliberations that, from his experience in law enforcement, Pena-Rodriguez must be guilty “because he’s Mexican and Mexican men take whatever they want.” They told about four other racist statements, including one in which H.C. said the alibi witness, also Latino, was an “illegal,” who must be lying. Testimony showed this witness to be a lawful immigrant.

Pena-Rodriguez's filed a motion for new trial arguing Juror H.C.'s comments constituted juror misconduct. This motion was denied, and the Supreme Court of Colorado agreed. The reason? Like Texas (and most jurisdictions) Colorado has a rule that bars anything related to actual jury deliberations from use in post convictions proceedings. In other words, even if Juror H.C. said the awful, racist things attributed to him, it could not be be used to establish juror misconduct.

This rule barring evidence of juror misconduct is based on policy reasons. Jury verdicts need finality, and jurors should be protected from potential harassment from lawyers scouring about for something to complain about after trial. Jurors should also be able to take comfort during deliberations and after verdict from the fear of having to testify about their deliberations in open court. It promotes open and frank deliberations.

Pena-Rodriguez's counter argument is pretty simple: These policy reasons must yield to the Sixth Amendment of the Constitution promising every criminal defendant an impartial trial. The overt, racist statements attributed to Juror H.C. go to the heart of a criminal jury's sworn responsibility (every Texas criminal juror promises to "[A] true verdict render according to the law and the evidence, so help [them] God"). Juror H.C.'s statements go to the very essence of a juror's promise to decide a criminal defendant's fate based upon these two things.

SCOTUS has been pretty much immune from finding Constitutionally dimensioned exceptions to this rule rendering inadmissible statements made during jury deliberations. In the 1980's in an appeal from Florida (where else?) SCOTUS decided the rule barred post conviction evidence of jury misconduct concerning drug and alcohol parties during trial that led to juror hangover and sleeping during the taking of evidence. This was not enough to overcome the policy reasons behind the rule of inadmissibility. SCOTUS held that juror bias is best rooted out during the jury selection process. This argument has obvious shortcomings in real world criminal practice - especially in a racial bias context.

In another more recent case involving juror misconduct SCOTUS wrote “There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged.” If Pena-Rodriguez is that case, it could impact post conviction practice significantly - especially in death penalty or life with out possibility of parole settings.

So for those of you waiting for sweeping arguments about race, criminal trials and the Constitution? See you next week.

Tuesday, September 27, 2016

UPDATED WITH CORRECTION: If The State Wins, It Loses: John Thuesen Edition

UPDATED WITH CORRECTION: I have tried in the almost two years this blog has been active to be accurate. When I am not, it requires correction. It has been brought to my attention that the CCA raised the issue of what I referred to as the "unrecusal" in my original blog post on their own motion. To the extent the original post contends the Brazos County DA's office laid behind the log on the issue, they did not.

ORIGINAL POST: On September 21, 2016 the Court of Criminal Appeals (CCA) remanded the latest Brazos County Death Penalty post conviction fiasco, Ex parte John Thuesen for additional fact findings. Based on my reading of the CCA order, no matter how the current issue plays out, the result is a longer, more expensive process that if the State of Texas wins, it loses.

Thuesen was convicted and sentenced to die back in 2010 for the brutal killing of a woman and her brother in their College Station home. On post conviction state habeas appeal (post conviction proceedings) the State Office of Capital Writs (OCW) pressed Ineffective Assistance of Counsel (IAC) claims against Thuesen's trial counsel. These claims centered on alleged failure to properly develop and present Post Traumatic Stress Disorder (PTSD) mitigation evidence related to Thuesen's military service at the punishment stage of his trial.

After finding an evidentiary hearing on the IAC claims was necessary, the Trial Judge took a voluntary recusal. Read the above linked order if curious about why. The Presiding Judge of the Second Administrative Judicial Region (Administrative Judge) then assigned a Visiting Judge to the case. The Trial Judge later changed his mind, deciding to "un-recuse" himself. The State of Texas, after initially opposing the un-recusal, reversed field, sending the following email to all interested parties, including the Administrative Judge:
The State of Texas no longer has any objections relating to [Trial Judge] presiding
over the John Thuesen writ. Based on further research and contact with a
number of experts in the area of federal writs, the statements and assurances
made by the Office of Capital Writs in the telephone hearing yesterday,
March 17, 2014, are sufficient to alleviate our concerns about their motives
for having you preside. With those issues resolved, our original desire to
have you preside can now be realized without any apprehension of future
legal ramifications.
The problem? According to the State, the Administrative Judge never took action to vacate the appointment of the Visiting Judge. Of course the State never said a word about this until the trial judge made findings on the post conviction hearing siding with Thuesen. Then the State said "never mind" and claimed error about the Trial Judge un-recusing himself despite agreeing to allow him to continue to preside and not bringing up this issue with either the Trial Judge or Administrative Judge.

Now, after more than a year with the case, the CCA has decided kick the can back down the appellate ladder with the following observations and instructions:
The record before us includes no written order signed by [Administrative Judge], no
letter order issued by [the Administrative Judge] and placed among the papers of the cause, and further no oral order announced by [Administrative Judge] on the record in open court, which purports to remove [Visiting Judge] and reinstate [Trial Judge]. Therefore, we now order [Administrative Judge] to conduct a review of the filings, records, and transcripts of the proceedings in this habeas case to locate any record of an order rendered by [Administrative Judge] removing [Visiting Judge] and reinstating [Trial Judge], if any such order exists.
Translation? The CCA is playing for time. Lots and lots of time.

What is the endgame for the State of Texas? Assume they "win" and the CCA ultimately upholds their legal position? What then? Most likely, the post conviction proceedings will be remanded back to the trial court for a new evidentiary proceeding on the original grounds of IAC the OCW advanced. If that happens, the OCW will likely withdraw from representing Thuesen because it failed to have the Administrative Judge sign the un-recusal order - and the prejudice to Thuesen is obvious. They will likely not want to further add to potential IAC claims against them by continuing to represent Thuesen.

If so, new post conviction lawyers will need to be appointed. These new lawyers will need time to get up to speed, and decide if an amended post conviction state habeas writ alleging IAC claims against the OCW should be asserted at this stage of proceedings. Given the tenuous status of the Death Penalty in this country, they will be in no hurry. The Trial Judge also may throw up his hands and recuse himself, this time for good - just to avoid the appearance of impropriety. Either way it will likely further proceedings for, literally, years. Oh yeah, and the taxpayer pays additional freight if a private lawyer is appointed because the OCW can no longer represent Thuesen.

Additionally, even if the State wins on the merits and the CCA, after a new evidentiary hearing, decides trial counsel was not IAC, yet another issue is added to the future federal post conviction proceedings. More than six years have elapsed since Thuesen was sentenced to die. The best case is probably another decade before the first round of state and federal post conviction proceedings are exhausted.

This could have been avoided had the State brought up what it now says was error before the evidentiary hearing on the OCW's post conviction appeal. Like when they agreed to let the Trial Judge continue to preside over the post conviction proceedings. The State's strategy also throws two sitting District Judges under the bus - a Trial Judge they appear before daily and the Presiding Judge for the largest judicial region in Texas.

Like I said, even if the State wins, they lose.

Saturday, September 24, 2016

Death, Plus Four

Four years often is a lifetime, and with us it could have been. In the universe of possible life experiences, standing next to a person being publicly sentenced to death cannot be a large sampling. Even smaller, then, is embracing the same person for the first time four years later, and knowing in that embrace the legal sentence of death will never be carried out.

Four years before that embrace I awkwardly said goodbye. What do you say when minutes before society tells one of their number they are unfit to continue living? Do you apologize because your advocacy was not good enough? That even after years of sifting through the records and talking to the people that define a life, you came up short? Try and explain how you just could not stop the gears of state sponsored death from engaging?

Immersion in the details of a life is like jumping down a rabbit hole into some shared Wonderland. In the end it binds people like chewing gum to August asphalt. That bond is forged over years of shared work and discoveries large and small, and in my case, in small steps. It happens in the voice of a ninety year old man re-living in a slow drawl fifty years of teaching those he called educable mentally retarded. The success. The failures. The frustration. These small things bind you because not only do you learn about the best and worst of them, but also yourself.

Yet the victim also lived in that immersion. Life taken is as important as a life worth saving. So it was that many months before that public judgement of death and years before that embrace I stood in a row crop field in a far away state, eyes closed forcing myself into the horror of consciousness disappearing into a terrifying spasm of violence. I felt it because bracing terror lived in that field. Terror as real as that I tried to imagine.

We have the wrong conversation about the death penalty. Yes it is flawed public policy. Yes it has wrongfully condemned the innocent and continues to disproportionately impact communities of color. Yet even states like California with direct ballot initiatives are having difficulty taking it off their books. In the abstract it seems a fair trade. Like a elegant but flawed algebraic formula, the death penalty seems to balance both sides of a symbol for equal. Such thinking will continue until we engage on the most fundamental level on the death penalty: That as a community we are worse off because we kill. Until this is embraced by a majority of those who live among our civilized society, we are doomed right along with it.

Tuesday, September 13, 2016

UPDATED WITH RESULTS: Hypocrisy About Marijuana - Arizona Edition

UPDATE NOVEMBER 12, 2016: Voters in Arizona rejected Prop 205 by 52-48% margin. Although legalization or medicinal use ballot measures passed in four other states, Arizona did not follow the legalization trend.

ORIGINAL POST: The lede from The Intercept story by Lee Fang tells the story:
Pharmaceutical executives who recently made a major donation to an anti-marijuana legalization campaign claimed they were doing so out of concern for the safety of children — but their investor filings reveal that pot poses a direct threat to their plans to cash in on a synthetic cannabis product they have developed.
Arizona has Prop 205 on the November ballot to legalize possession and consumption of marijuana for those 21 years of age and older. Polling done on August 6, 2016 showed approval of the measure up 10%. With this polling in the public domain, on August 31, 2016 the pharmaceutical company Insys gave $500,000 to a group called "Arizonans for Responsible Drug Policy" which opposes approval of Prop 205. By so doing Insys became their single largest contributor.

Not coincidentally, Insys manufactures the Subsys, a delivery system for the drug fentanyl, marketed to physicians as cancer pain reliever. Fentanyl is an synthetic opioid analgesic that is similar to morphine but is 50 to 100 times more potent, according to the National Institute of Drug Abuse. Fentanyl is the painkiller on which Prince overdosed.

All of this information has been widely reported.

The story The Intercept and Lee Fang broke is more interesting. It turns out Insys has another product in their developmental pipeline:
Insys is currently developing a product called the Dronabinol Oral Solution, a drug that uses a synthetic version of tetrahydrocannabinol (THC) to alleviate chemotherapy-caused nausea and vomiting. In an early filing related to the dronabinol drug, assessing market concerns and competition, Insys filed a disclosure statement with the Securities and Exchange Commission stating plainly that legal marijuana is a direct threat to their product line:  
'Legalization of marijuana or non-synthetic cannabinoids in the United States could significantly limit the commercial success of any dronabinol product candidate. … If marijuana or non-synthetic cannabinoids were legalized in the United States, the market for dronabinol product sales would likely be significantly reduced and our ability to generate revenue and our business prospects would be materially adversely affected.'
The truth is Insys wants to defeat Prop 205 for competitive reasons. The whole charade is rich with dark irony. Big Pharma is now funding anti-marijuana campaigns to market competing drugs with the same active ingredient in marijuana - THC, or in fentayl's case, opium. What Big Pharma wants is to continue a virtual monopoly, charging prices with impunity rather than compete in a regulated market. This lays bare the fallacy that marijuana is somehow more dangerous than widely prescribed drugs.

In Texas, as I have written before, here, here and here, arrest and criminal prosecution of possession of a small amount of marijuana can result in life altering consequences. De-criminalization, or simply using laws currently on the Texas books, could change this. Big Pharama recognizes the challenge to this emerging market and is overtly challenging de-criminalization for money reasons, not public health reasons.

Are you paying attention Texas?