Sunday, March 27, 2016

An Easter Story 2016

Last year I wrote An Easter Story. This year, I write again for Easter. It is an important day for Christians - actually, THE most important day. Right? To have life after death, there must be death. For Jesus, human death resulted from secular government order, a death sentence. It matters not if a reader of the canonical gospels believes what is written there is inerrant, allegorical, or fictional. They each tell of a capital trial and death penalty.

The version from Mark, Chapter 15, verses 1-15 (New International Version):
1. Very early in the morning, the chief priests, with the elders, the teachers of the law and the whole Sanhedrin, made their plans. So they bound Jesus, led him away and handed him over to Pilate. 2 “Are you the king of the Jews?” asked Pilate. “You have said so,” Jesus replied. 3 The chief priests accused him of many things.  4  So again Pilate asked him, “Aren’t you going to answer? See how many things they are accusing you of.” 5 But Jesus still made no reply, and Pilate was amazed. 6  Now it was the custom at the festival to release a prisoner whom the people requested. 7 A man called Barabbas was in prison with the insurrectionists who had committed murder in the uprising. 8 The crowd came up and asked Pilate to do for them what he usually did. 9 “Do you want me to release to you the king of the Jews?” asked Pilate, 10 knowing it was out of self-interest that the chief priests had handed Jesus over to him. 11 But the chief priests stirred up the crowd to have Pilate release Barabbas instead. 12 “What shall I do, then, with the one you call the king of the Jews?” Pilate asked them. 13 “Crucify him!” they shouted. 14 “Why? What crime has he committed?” asked Pilate. But they shouted all the louder, “Crucify him!”15 Wanting to satisfy the crowd, Pilate released Barabbas to them. He had Jesus flogged, and handed him over to be crucified.
According to John Mark, the government makes only a sedition accusation: "Are you King of the Jews?" In response, Jesus parrots it back using the only four words he speaks in his trial, "You have said so." Not exactly a confession. In fact, Jesus remains mute to a bevy of non-secular accusation, despite entreaties by the government to respond, "Aren't you going to answer? See how many things [religious authority] are accusing you of."

Yet there is the public pressure on the government for the death penalty. In the teeth of attempted government clemency, public pressure for the death penalty only becomes greater. Ironically, this public outcry for a death sentence has been the rationalization for two millennia of religious persecution and even more death.

Life after death. Mercy. Redemption no matter how far or unfair the fall.

Happy Easter.

Wednesday, March 23, 2016

Oklahoma is Lit Up in SCOTUS

The Supreme Court of the United States (SCOTUS) has denied leave to the states of Nebraska and Oklahoma to file a complaint against sister state Colorado for passing legislation legalizing and regulating the sale of marijuana within it's borders. SCOTUS would be exercising it's original jurisdiction had it taken the case - it has such jurisdiction to resolve disputes between the different states.

The SCOTUS decision does not impact my small corner of Texas, except so far as it provides increased cover to our state legislature to decriminalize ganja possession. I happen to think such legislation a no brainer, but it is not for me to decide. I can, however, point to the hypocrisy, particularly of Oklahoma, for expending money and time in pressing the complaint.

From the motion for leave filed by Oklahoma and Nebraska:
In passing and enforcing [legalization of marijuana], the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems. (emphasis added).
 Oklahoma indeed has a problem with stress placed on their criminal justice system, but it is not from importation of marijuana from Colorado. Instead it is from methamphetamine transported and sold within their own borders. Oklahoma is consistently at or near the top for meth labs, illustrated by this chart, albeit a bit dated, showing Tulsa county OK as the county with the most meth labs (979) in the USA. Meth is a crisis throughout the midwest.

The denial of leave to file was not without much consideration and dissent. The motion for leave was re-listed for conference consideration 4 times. Justice Thomas, joined by Justice Alito dissented from the denial for leave to file. Their logic was that although treated as discretionary, the exercise of original jurisdiction as worded in the U.S. Constitution is mandatory. Moreover, these two felt even if discretionary, in light of federal legislation on the books forbidding possession, growing, and transportation of the evil weed across state lines, original jurisdiction was proper.

Their points are well taken, and underscore the wrongheadedness of the federal legislation.

Tuesday, March 22, 2016

Suffering From Gifts

John Elder Robinson suffers from Asperger’s syndrome (AS). Suffers is the key word here, as it connotes misery. It is more than an existential question - it is a question those who love anyone, whether suffering from AS or not, must confront.

I have written before about Robinson. Robinson has a new book, recently reviewed by Jennifer Senior in the New York Times. He is brother to Augusten Burroughs, bestselling author of "Running With Scissors" and "Dry." Robinson is a bestselling author in his own right, having written, "Look me in the Eye."

Robinson is a savant of the "Rain Man" type, having unique gifts:
From an early age, it was clear that [Robinson] had been wired with extra fibers for appreciating music. He could easily hear the difference between one kind of Fender bass and another. He could recognize which of 100 speakers in a sound system was groaning in distress. He could take any musical gizmo and, as Nigel Tufnel might say, make it go to 11. 
"Switched On, A Story of Brain Change and Emotional Awakening" is Robinson's book, with a "Flowers for Algernon" type story. The book is about Robinson's journey through a 2008 Beth Israel Deaconess Medical Center study using stimulation to certain parts of the brain attempting to activate neuro-pathways. The desired goal? To increase emotional "intelligence" in those who by definition have deficits in engaging in the subtleties of emotion.

The change was dramatic, and in a twist to Algernon, some it long lasting:
The transformations he undergoes throughout the book are astonishing — as foreign and overwhelming as if he woke up one morning with the visual range of a bee or the auditory prowess of a bat.
                                                  *    *    *    *    *    *
Most of the effects fade over time, as the doctors had warned Mr. Robison they would. (The doctors, truth be told, had zero expectation of any lasting effects.) But to this day, Mr. Robison moves more comfortably among strangers. He relates better to the customers at his car repair shop.
The price paid for this deeper emotional intelligence? Steep.
'I had created a fantasy that seeing into people would be sweetness and love,' he writes. 'Now I knew the truth: most of the emotions floating around in space are not positive. When you look into a crowd with real emotional insight you’ll see lust, greed, rage, anxiety, and what for a lack of a better word I call ‘tension’ — with only the occasional flash of love or happiness.'
Neuro-diversity is a still a new idea. Perhaps because I have a non-verbal child on the autism spectrum, perhaps because Robinson is around my age (58), I appreciate his insight more. The things we love, we lose. The tighter we hold, the more expensive the emotional price. Is it worth paying?
But [Robinson] is also torn. He did not come of age when 'neurodiversity' was part of our vocabulary of difference. He did not come of age when 'Asperger’s' was part of our vocabulary at all. He received his autism diagnosis at 40, and he has many memories of being bullied, losing jobs and mishandling social situations because of his inability to read others. 
The reflection from Robinson's book is more than his image shone back. It is instead the image of anyone struggling to love another who suffers. Norman Maclean writes elegantly about it in "A River Runs Through It":
For it is true we can seldom help those closest to us. Either we don't know what part of ourselves to give or, more often than not, the part we have to give is not wanted. And so it is those we live with and should know who elude us. But we can still love them - we can love completely without complete understanding.
Craig Elder Robinson is a gift, no matter from what he suffers.

Sunday, March 20, 2016

The 37% Solution in Brazos County

The Office of Court Administration (OCA) has a useful website allowing access to various county by county court statistics. Last year I broke the Brazos county misdemeanor statistics down. This year the statistics are similar. According to the OCA, in a total of 3872 new misdemeanor cases were filed during calendar year 2015 in Brazos county. Of these filings, 800 were Possession of Marijuana, and 632 were for Driving While License Invalid. Translated, this means 37% of Brazos county court at law filings were for these 2 categories of cases. Put another way, almost 4 out of every 10 misdemeanors filed in Brazos county courts at law were for either POM or DWLI.

Statewide, the percentage is 20% for the same two criminal offenses.

Brazos County is therefore filing 17% more POM and DWLI's than the statewide average.


The Brazos County Attorney ran unopposed this election cycle, so there is no uproar about the filing decisions the office makes. However, if a claim is made a new statutory county court is needed because of docket overload in the existing 2 county courts at law, these statistics need to be part of the discussion. Resources could be more efficiently and effectively spent to achieve the same goal. Being smarter on (illusory) crime means being smarter with resources.

Along the same lines, should the legislature decriminalizes these two category of offenses in the next few years - and there is reason to think this will happen - suddenly 40% of the Brazos county misdemeanor docket will evaporate.

Monday, March 14, 2016

Minimization of Blame and the Duke LAX Fiasco

Fantastic Lies, an extended treatment of the Duke Lacrosse (LAX) rape allegation, debuted Friday, March 11, 2016 at the South by Southwest (SXSW) festival in Austin. It aired on ESPN last night, Sunday, March 13, 2016. The film was recently reviewed by Christina Cauterucci at Slate. Her review, and point of view on the case itself demonstrate the minimization which provided cover for the false accusation, and the eerily similar accusation later made at the University of Virginia (UVA).

Cauteruccci does not attempt to mask her distain for the Duke Lacrosse players:
Even so, it’s a bizarre experience to watch a documentary that expects the viewer to root for a bunch of accused rapists.
                                                        *   *   *   *   *
But the underdogs who eke out a well-deserved win in this sports flick are actually a bunch of wealthy white guys who ended up with multimillion-dollar settlements from Duke and jobs in investment banking.
Cauterucci must have forgotten these men suffered the modern equivalent of being publicly hanged, drawn, and quartered before a live audience. They were abandoned by their school, their criminal justice system and a judgmental public unwilling to give them any sort of benefit of doubt.

That they were white athletes enrolled at a exclusive university is what MADE the story newsworthy. They deserved every penny they leveraged from a university that could not be bothered with any semblance of due process in shunning them like lepers in a pell mell expulsion from Duke.

Additionally, Cauterncci cannot bring herself to point a finger of blame at the person, more so than Nifong, who deserves it most: The accuser, Crystal Mangum. Instead Cauterncci writes Mangum "still maintains she was assaulted." hyperlinking to another story dated March 10, 2016 by Jessica Luther in Vocativ entitled "'I'm Broken': The Duke Lacrosse Rape Accuser 10 years Later.

In that piece, Luther writes:
Mangum also doesn’t believe she is to blame for the second degree murder of her boyfriend, Reginald Daye, for which she was convicted in 2013. The state, she said, has 'not [been] sympathetic to my experience of violence and the things that I’ve been through.'
That is possible given her past relationship with the law. It’s also possible that she’s in prison for defending herself against an abuser—a phenomenon that disproportionately affects women of color. It’s also possible that the jury simply believed the evidence against her was worthy of a conviction. 
If Mangum has taught us nothing else about the judicial system, she has taught us how murky it can be.
The criminal justice system CAN be murky. These three paragraphs, however, are breathtaking bunk. There IS murkiness inhabiting the criminal justice system, but this is not an example of it. Instead, this case is stark: Magnum lied. Nifong abused power. The media rushed to judgment.

Neither are Luther, the documentary, or Cauterncci willing to unleash their collective fury at the most culpable person in the entire sorry affair: Mangum. Instead, writers like Cauterncci are complicit in minimizing Mangum's blameworthiness by wallowing in red herrings:
One [non-accused Duke Lacrosse player] did write an email less than an hour after the alleged attack that said, at the next party with strippers, “I plan on killing the bitches as soon as the[y] walk in and proceding to cut their skin off while cumming in my duke issue spandex.” Nifong and his enablers did the three indicted players a grave injustice, but it’s hard to muster a full 90 minutes of righteous anger on their behalf.
The email of which she writes has nothing to do with Magnums false accusation. Nifong did the three men accused a grave injustice. Mangum did a greater one. She knew it was false. She accused innocents of raping in an attempt to cover up her own sorted behavior And yes, Ms. Cauterncci, I can muster righteous anger for anyone publicly drug through the sewerage of being wrongly accused of rape.

Cauternc cannot help but quote directly from Luther's piece, which essentially argues the case has resulted in the tar and feathering of sexual violence victims:
Today, someone need only say the word 'Duke' in a discussion about sexual violence and for all listening it invokes the specter of a false accuser who cries rape and ruins the lives of innocent men. The case is mentioned during sexual assault trials by defense attorneys whenever they can manage to work it in; a mere mention of 'Duke Lacrosse,' even if ultimately objected and sustained, plants a seed of doubt in the jury’s mind about the victim’s credibility. 
Magnum's accusation was not about "sexual violence." It was instead about false accusation. More important, any good criminal defense lawyer will use the Duke Lacrosse case for reasons having nothing to do with sexual assault. I use it, for example, to illustrate to jury panels how the Presumption of Innocence is easy in the abstract, but much more difficult to follow in practice.

Cauterncci's story ends ironically, without realization that her ilk's minimization of Magnum's misdeeds is just the kind of thing that lead to the erroneous Rolling Stone story "A Rape on Campus" by Sabrina Erdely, concerning a false accusation of a gang rape at UVA a decade later.
Instead, the case should be a reminder of the danger of hanging all hopes for race, gender, and class restitution on a perfect story that might not hold up. “Every person with every agenda wanted it to be true,” says the mother of indicted player Reade Seligmann in the film. Thanks to the bungled misdeeds of a media-happy district attorney with an eye on his own reelection campaign, they got no catharsis—they got scammed.
Instead, false accusations of rape will happen again in no small part due to the minimization illustrated by Cauterncci and Luther. It will happen again in a context that will illustrate not  the murkiness of the criminal justice system, but the murkiness of university disciplinary due process.

Tuesday, March 8, 2016

Rick Perry Just Did Criminal Defendants a Big Favor

Former Governor Rick Perry received an early birthday present week before last from the Texas Court of Criminal Appeals (CCA). The CCA gifted Governor Perry by effectively getting rid of the criminal case against him in the pretrial stage. This is virtually unheard of in the context which it occurred. Regardless of how you feel about he man Molly Ivins dubbed "Governor Goodhair," there are nuggets to be mined from the fractured opinions issued from the CCA.

This post focuses on the largest of those nuggets - the potential expansion of pre-trial appeal rights for criminal defendants with "as applied" constitutional attacks on their indictments.

First a little background.

A special prosecutor managed to coax a 2 count criminal indictment from a Travis County grand jury against Perry. Count 1 was for Abuse of Official Capacity, Count 2 was for Coercion of a Public Servant. Both counts arose from Perry attempts to defund the Travis County D.A.'s statewide Public Integrity Unit jurisdiction. Perry, among other attacks on the indictment, filed a pretrial writ of habeas corpus (HC) attacking the constitutionality (under separation of powers theory) of the Abuse of Official Capacity statute as it applied to him.

Eventually the trial court denied the HC, and despite some misgivings about the prosecution, the Austin Court of Appeals (COA) affirmed.

the COA's reasoning? Paraphrasing, the COA said: Even if you ARE a former Governor, our law says you cannot attack an indictment before trial by alleging it is unconstitutional as applied to you. We cannot change this longstanding interpretation of the Great Writ. Come back after trial when we can better assess with a complete evidentiary record your "as applied to me" constitutional attack on this admittedly sketchy prosecution.

The CCA disagreed.

In reversing the denial of the pretrial HC, the CCA, in my opinion, changed the law and left the door ajar for greater pre-trial HC appeals for criminal defendants. The ability to attack, pretrial, the formal charging instrument is huge. The issue boils down to one key point: Cognizability analysis, or, stated differently, the ability to take a pre-trial HC in the first place.

Cognizability was the only part of the Perry opinion upon which only a plurality of the CCA passed judgment. There was a 3/3/2 split. The plurality breakdown was as follows: 3 (Keller/Alcala/Yeary [lead opinion]); 3 (Newell/Keasler/Hervey [concurring in judgment]); 2 (Meyer/Johnson [dissenting]).

Importantly, Judge Richardson did not participate.

Judge Alcala wrote an important concurring opinion. More on this, it's importance, and Judge Alcala's possible tactical thinking later.

First Judge Keller's main opinion. Presiding Judge Keller has, in the past, been tolerant of interlocutory appeals, at least on the State side. Though in conservative corners this would bear the dreaded "judicial activism" label, most everyone was willing to give her a pass, in my opinion, because it has generally benefited the State. This time, however, it cuts to the benefit of a criminal defendant, albeit a GOP, conservative, ex-Governor.

Whatever. The fact is, in this context, Governor Perry was in the criminal dock.

Presiding Judge Keller set the table effectively on the "cognizabability" hurtle any pre-Perry criminal defendant desirous of a pretrial decision on a claim that, as applied to them, the criminal law upon which they are charged is unconstitutional.
Although we have said that as-applied challenges are not cognizable before trial, we allow certain types of claims to be raised by pretrial habeas because the rights underlying those claims would be effectively undermined if not vindicated before trial. Within this category of rights that  would be effectively undermined if not vindicated pretrial, we have, so far, recognized the constitutional protections involving double jeopardy and bail. Facial constitutional challenges, however, are cognizable on pretrial habeas regardless of whether the particular constitutional right at issue would be effectively undermined if not vindicated prior to trial. When we say that as-applied challenges are not cognizable pretrial, what we mean is that, unlike with facial challenges, the unconstitutionality of a statute as applied is not, in the abstract, a basis for invoking the pretrial writ. But, as will be discussed further below, certain types of as-applied claims may be raised by pretrial habeas because the particular constitutional right at issue in the as-applied challenge is the type that would be effectively undermined if not vindicated prior to trial. (emphasis in the original)(citations omitted).
Presiding Judge Keller then finds the issue of separation of powers is just that kind of constitutional issue that would be "effectively undermined if not vindicated prior to trial." You can read the reasons for yourself. The important thing is she found cogniziability existed.

Enter now, center stage, Judge Alcala's concurrence. It provided a guide and invitation to both practitioner and courts of appeal:
Given that our decisions in this area have been less than clear in providing a workable framework for determining the cognizability of matters in pretrial habeas corpus, the Court’s splintered resolution of the cognizability question in this case does little to clarify matters. I nonetheless support the approach taken by the lead opinion and would urge this Court to adopt that approach going forward as the governing framework for analyzing pretrial cognizability questions. (citations omitted)
                                                                *    *    *    *
More broadly, the lead opinion seeks to clarify that, in assessing whether an as-applied challenge is cognizable on pretrial habeas, courts should not engage in a subjective evaluation of whether review at that stage would be better or more efficient but rather must conduct an objective legal inquiry into whether pretrial review is necessary in order to protect “the applicant’s substantive rights,” or, stated differently, whether “the nature of the constitutional right at issue entitles [the defendant] to raise [his] claims by pretrial habeas corpus.” By indicating that it is the nature of the constitutional right at stake that drives the pretrial-cognizability inquiry, this principle-based approach adheres to the underlying purpose of the writ of habeas corpus. (citations omitted.)
If you are criminal defense attorney, this language is exciting. The appellate door is now, if not opened, not locked shut. We in the defense bar need to look for opportunities to argue what is "as applied" sauce for Governor Perry, is sauce for every criminal defendant within the context of pretrial HC. Are you paying attention Capital Defense bar?

The judicial activism of the lead opinion and the concurring opinions rankled Judge Meyers and Judge Johnson. First Judge Meyers' dissent, the most "liberal" of the CCA judges, sounding the clarion call of judicial restraint:
After reading the majority’s opinion, it seems clear to me that it has decided to employ any means necessary in order to vacate the two felony counts against Governor Rick Perry.The majority opinion has repealed more statutes and made more new law than Governor Perry did in the last session of the legislature when he tried to muscle out the elected Travis County District Attorney.
Judge Johnson's dissent was even more peevish:
 In no other appeal I have read during the seventeen years that I have served on this Court has appellant been called anything other than “appellant.” The constant references to “Governor Perry” could well be seen by the public as an inference that appellant’s position in life entitles him to special privileges and special treatment by this Court that others might be denied.
At least Judge Meyers signed off on his dissent with the obligatory "I respectfully dissent." Judge Johnson did not so do. She just signed off simply "I dissent." For those not familiar with the subtleties of appellate courts, this can be the judicial equivalent of extending a middle finger.

The CCA's current dynamics are important. Judge Johnson is in her last term. She is not running for re-election. Judge Meyers switched to the Democratic party in 2013 and ran unsuccessfully for the Texas Supreme Court. He will be on the ballot in the general election in November as an incumbent for his current seat on the CCA, but has faint chance given his party affiliation.

Neither dissenting Judge, therefore, has reason to think long term. They can afford to stand their principled ground. Judge Alcala is thinking long game. The votes were present (Keller, Newell, Keasler, Hervey) for reversing. By signing off on Judge Keller's lead opinion, she could write the concurrence she wrote, provide a road map for criminal defense lawyers and courts of appeals on the issue, while giving cover to Judges Meyer and Johnson to write their dissents.

Judge Alcala is a force to be reckoned with.