Monday, May 30, 2016

The Last Full Measure

Memorial Day symbolized many things growing up. It was the end of the school year, and the traditional beginning of summer. It really took a long time - too long - for me to fully appreciate of what Memorial Day really meant.

I have never lost a relative or close friend in service to the county. In the early 1950's my closest uncle missed the Korean War, at least in part because he spoke french - albeit the Cajun kind. It was enough, however, that instead of deployment to the Korean Peninsula, he was sent to Germany. While stationed there, when not repairing vehicles in the motor pool, he was shuttling officers to France and translating in his provincial french.

My father did his military service as an officer in the Army Medical Corp stationed in Fort Polk, Louisiana in the early 1960's. His closest brush with combat came during the Cuban Missile Crisis in October 1962, when I was 3 years old. To this day my mother recalls it vividly.

I have a nephew who will be a junior at the Air Force Academy this coming fall. He has a 6 year commitment to the Air Force when he graduates in 2018. He will be a credit to the service.

In 1970 the church my family attended gave members a list of servicemen who were serving in Vietnam. The church asked Christmas cards be sent. I picked a name out at random, addressed it and mailed the Christmas greeting to that far off place. It was a simple card. To my surprise, the serviceman wrote back, thanking me for the card and illustrating in the margins a drawing of a soldier that would have made Bill Mauldin proud. I have thought about that letter over the years, and, of course, the serviceman who wrote it. I imagine him writing and drawing that letter to me all those years ago. I see him sometimes with pen in hand, kick back while on leave in a Saigon sidewalk cafe. Other times, I see him in my minds eye scratching away while "in country," hunkered down in a rice paddy and rain pelting down.

I do not know what happened to him.

To the men and women, their families who gave so much, I try and remember today what Lincoln said more than a century ago: "[F]rom these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion"

Sunday, May 29, 2016

Tilting at Illusory Cultural Windmills: Ken Paxton Edition

I would like to think that if my taxpayer money was being spent on culture litigation by some atheist liberal, I would voice misgivings. Thus, I sort of shook my head this week when I read Texas Attorney General Ken Paxton came to the aid of tiny Harrold Independent School District's new bathroom policy. My source was a Texas Tribune story by Morgan Smith that Paxton's march to join the culture wars was compelled by that school district's decision to protect it's students from the federal government:
'Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy that puts the safety of their students first,' [Paxton] said in a press conference. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of the Obama administration, which has maintained it will punish anyone who doesn’t comply with their orders.'
Ah, but the The Trib added this little jewel about the Privy Policy and my head exploded:
[Paxton] didn't say his office asked the district to pass the policy.
Nor did [Paxton] say what The Texas Tribune has now learned: that his staff had approached another North Texas school district about pursuing the policy — and the lawsuit — 10 days earlier. 
First, that Texas' top lawyer solicited several school districts to pass a policy for the purpose of filing a lawsuit would make the most brazen ambulance chasing lawyer blush. Well, on second thought, perhaps not. We are a shameless lot after all. Seriously, though, is there a true legal controversy when the lawyer bringing the lawsuit was responsible for creating the basis for which it was brought in the first place?

A little on the new center of the Federal Government Usurpation War and whose Potty Policy cost of defense is now subject to the tax paying public of Texas. Harrold is in far North Texas, in Wilbarger County, a few miles north (off Hwy 287) of Wichita Falls. Harrold has a population of 188 people. According to an recent Associated Press story, K-12 grade census at Harrold ISD is 100 students and 4 students made up the 2016 graduating class.

The Harrold ISD Water Closet Commandment can be read in toto here. According to the AP story, Harrold ISD Superintendent David Thweat saw the danger necessitating the policy as follows
Kindergarteners and high school students in Harrold share 10 bathrooms in a single brick schoolhouse that is shorter than the football field, where the Harrold Hornets play six-man football because there are not enough players for 11. A few times a day, a train rumbles past the schoolhouse. Superintendent David Thweatt says 'hobos' sometimes jump off and wander toward campus. Once, he said, a drifter holed up in a school bus and left a smell that took days to air out.
It's those sorts of strangers, Thweatt says, who could take advantage of bathroom rights for students who are transgender. Even the mere word made him fidget Wednesday while sitting in the teacher's lounge, where Thweatt is used to visiting with reporters. 
Hold the Phone. Did Thweatt really says the policy is to protect "[the] bathroom rights for students who are transgender?" Is that a misprint? If Thweatt was quoted accurtately, then let me get this straight: When Paxton said the lawsuit was necessary because 'Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy that puts the safety of their students first..." he was speaking about the safety of transgender students at the Harrold school? What? So this lawsuit is about federal usurpation of a local school board decision designed to protect the transgender student population of a farming and ranching community of 188 people?

 For the Love of Pete.

Reading about Harrold made me think of Larry McMurtry, the author who grew up in Archer City, a 30 minute drive from Harrold. In particular I thought of McMurtry's The Last Picture Show, McMurtry's tale told from the point of view of two high school seniors set in 1950's Thalia, his stand in for his dusty hometown. I found this useful summary of one of the sub-plots of the novel, soft pedaled in the movie version of the same name:
Coach Popper secretly has his eye on the quarterback, Bobby Logan, and becomes enraged when Bobby starts spending too much time in the company of a male teacher. The coach spreads a rumor that the teacher is gay, and the school board immediately fires him.
Yep, there is potential danger of predatory behavior in North Texas schools. Just no evidence of the kind Harrold ISD sees in their neck of the Texas prairie. Here is a money quote in the Trib story from a Wichita Falls school board member following that board's decision to take a pass on Paxton's Solicitous Proceeding:
'I feel like in this situation we’ve been put between a rock and a hard place by both the federal and our state government where we are the ones who would be the sacrificial lambs effectively in this fight,' said [Wichita Falls] board member Elizabeth Yeager. 'I think that would be completely a waste of time and a distraction from our school business of educating students.'

Sunday, May 22, 2016

The Civil Justice System's Missing Heart

Although this blog is primarily about criminal justice in Texas, I have also touched on civil justice issues. I read a Texas Tribune story this week entitled High Court Rules for Hospital in Missing Heart Case written by Edgar Walters. After reading, I thought to myself our civil justice system has become the Cowardly Lion of Wizard of Oz fame. All roar and no substance.

My father is a physician, an obstetrician who has practiced medicine in the Houston area for more than 50 years. I have tried medical malpractice cases to juries and was board certified in personal injury trial law in Texas for 15 years (it lapsed in 2015). I have lived thorough an age watching cases such as the infamous McDonald's coffee spill case taint a willing public ready to believe most every personal injury suit is a game of lawsuit lottery. This fervor culminated in Texas effectively making claims for medical negligence cost prohibitive as a result of legislation known as the Texas Medical Liability Act (TMLA).

The TMLA imposed caps on damages, and, most significantly for an unfortunate woman named Linda Carswell, strict limitations on periods in which to file a lawsuit seeking damages caused by hospital negligence. It has resulted in many more injustices than perpetrated on Linda Carswell and her dead husband, Jerry. Linda's case had just the dash of macabre necessary to the draw interest of traditional and social media and, yes, bloggers like me.

According to the Tribune, here are the basic facts:
The case traces back to the morning of Jan. 22, 2004, when Jerry Carswell, admitted to [Christus St. Catherine Hospital in Katy, Texas] with kidney stones, was found dead in his hospital bed. Linda Carswell wondered if his death was due to a narcotic the hospital had administered. Carswell has said she asked for an independent autopsy, but her husband's autopsy was performed by a separate hospital under the same ownership as Christus St. Catherine Hospital — a fact she said she did not know at the time. That autopsy, which was inconclusive, did not include a toxicology test, which Carswell said could have shed light on whether the narcotic had killed her husband.
Then things got REALLY weird:
Further complicating matters, the examiner who performed the autopsy also allegedly removed the dead man’s heart without Carswell’s consent. The hospital fought not to release the organ, saying it could be important evidence that would show Carswell's husband died of a heart attack.
After an appeals court ordered the hospital to release the heart to Carswell, a separate forensic biologist said it contained no human DNA — either because of the way it was preserved, or because there was a 'real possibility that the heart submitted was not human,' according to court documents.
A trial court jury sided with Carswell, who says she was misled by Christus Health about the autopsy’s independence and scope, and awarded her a rare $2 million fraud judgment against the health care provider.
In short, Jerry Carswell may have been negligently killed by an accidental overdose administered by staff at a hospital where he had been admitted. A clinical autopsy to try and determine cause of death - performed by a sister hospital - was either negligently performed, or was rigged to hide evidence that Carswell was negligently overdosed. A jury decided the autopsy was fraudulently represented to Liinda, but the hospital, as is often the case, was bailed out by an appellate court. In this case, The Supreme Court of Texas.

Said another way, the hospitals got away with it. This may have been a proper result under the law, but for pity sakes, if this is a proper result, Texas civil justice has become The Kingdom of Cowardly Lions.

Saturday, May 21, 2016

In Praise of Layla, Jim Gordon and the Speechless

When I first met her, I had no idea Pattie Boyd would share so many important moments of my life. Well, to be fair, she and Jim Gordon.

Layla, you've got me on my knees.
Layla, I'm begging, darling please.
Layla, darling won't you ease my worried mind.

I listened to those lyrics and Eric Clapton's unmistakable guitar riff on a FM radio while in a car in the early 1970's. Once smitten with her, I fell hard. I bought the album with the distinctive cover art shortly thereafter. To be sure, at the time I did not know or care much about the backstory involving Pattie, Jim Gordon or the band whose moniker was Derek and the Dominos. I just really liked the song - and from the jump I was solidly in the camp favoring the piano coda.

In furtive, episodic details the backstory of Pattie Boyd and her alter ego, Layla, unfolded to me over the years. I read about the drug fueled sessions in Miami that led to the greatest rock love song of all time. The piano coda and co-writer status, I discovered, was credited to Jim Gordon, a noted session drummer of that time, who manned the piano while Duane Allman and Clapton hammered away at their guitars. Dispute has erupted about who actually wrote the coda, but Gordon remains credited.

Clapton (and Gordon) won a Grammy award in 1993 when Clapton released the acoustic version of Layla. The piano coda was not part of that version, and Clapton nary mentioned a word about Gordon when accepting the Grammy. By that time, Gordon was in a California prison - something I already knew.

I had randomly picked up a Rolling Stone (RS) magazine years before Clapton stood on that stage, and blundered upon a story, "When the Voices Took Over" by Barry Rehfeld about Jim Gordon. It turned out Jim not only had credit for co-writing the song that had become my favorite, but had also taken a hammer and knife to his mother in a schizophrenic psychotic break in 1983, and was serving a life sentence for her murder.

I remember thinking someone who had co-written one of the greatest rock songs in history would be out of prison sooner rather than later.

 I was way, way wrong.

In between reading that RS story and Clapton's acceptance speech, I had another memorable encounter with Layla. On November 8, 1985 I was in yet another car, this time with Randy Howry, a lawyer who 30 years later would run for President of same State Bar of Texas that had just sworn us in as licensed lawyers. We were with another, also now insanely successful lawyer, Morris Weiss, when those Clapton guitar riffs erupted on Randy's car radio. I began singing and Morris jumped in, providing backup vocals and air guitar riffs of his own. Morris, as it turned out, was a fan too. I found we who love Layla are kind of a geekish fraternity. We swapped Layla trivia whilst Randy chauffeured us around downtown Austin.

It was a great day.

I tried to give you consolation
When your old man had let you down.
Like a fool, I fell in love with you,
Turned my whole world upside down.

I have tried to keep track of Jim over the years. His clouded mind dovetails into the mental illness so often intersecting with the clients I represent. When I sit and speak to someone hearing or seeing voices, and look into eyes that I cannot understand, I think of Jim and the demons shouting behind those eyes. RS did another story on Jim in May, 2013 when Jim was denied parole. He will be up again in 2018. As I wrote earlier, I was way, way wrong.

Let's make the best of the situation
Before I finally go insane.
Please don't say we'll never find a way
And tell me all my love's in vain.

Then, yesterday, some 40 years after my first time, I was in yet another car, this time with my autistic, non-verbal son in the back seat. My Apple music shuffle had the good fortune of finding Layla on my playlist. I smiled to myself and cranked up the volume just a little louder. My little man took notice. Suddenly, deliberately, from the back seat I heard clapping, and during Gordon's methodical piano key strikes, he cackled in time. I pulled over into a parking lot and re-played the guitar and piano riffs so familiar to me. For a second time my son had the same reaction - the same clapping, and identical cackle during the piano coda.

Layla, you've got me on my knees.
Layla, I'm begging, darling please.
Layla, darling won't you ease my worried mind.

Damn, that boy has some kind of good taste.

Friday, May 13, 2016

Meaningful Appellate Review?

I have used the Texas Office of Court Administration's (OCA) statistics several times in my blog. I used their statistics to break down the misdemeanor filings in my home, Brazos County for 2014 and 2015, concluding we are way above the state average in filing misdemeanor Possession of Marijuana and Driving While License Invalid cases.

 I have recently looked at a bigger canvas: The statewide number of criminal cases on which appeal was taken to a Texas court of appeal (COA) and later resulted in a reversal with judgment rendered or reversal with a remand for further proceedings in the trial court appealed from.

A few notes on the statistics, before getting to the results. The OCA does not break down the appeals based on who is appealing. In other words the statistics are blind as to whether the appellant (appealing party) was the State of Texas or a criminal defendant. There are some limited situations the State can appeal - for example, after losing a pre-trial suppression motion at the trial court level. There are others - extraordinary relief such as writs of mandamus. Nevertheless, these probably make up a small percentage of appeals. The vast majority of appeals are criminal defendants appealing convictions and/or punishments in Texas criminal trial courts.

For purposes of the results I have counted appellate cases either reversed and rendered or reversed and remanded back to the trial court for any reason. Thus although a case may have been affirmed in part, reversed in part, yet but not remanded, I did not count it toward the totals shown below. For comparison I used the OCA's statistics for fiscal years 2010 and 2015.

2015:  Total Criminal Cases Disposed:                                                                        5581
           Total Criminal Cases Reversed and Rendered:                                                    39
           Total Criminal Cases Reversed and Remanded:                                                171
           Total Criminal Cases Affirmed in Part, Reversed in Part and Remanded:            23
           Total Criminal Cases Affirmed in Part, Reversed in Part and Rendered:               3

2010:  Total Criminal Cases Disposed:                                                                          6179
           Total Criminal Cases Reversed and Remanded:                                                  149
           Total Criminal Cases Reversed and Rendered:                                                      25
           Total Criminal Cases Affirmed in Part, Reversed in Part and Remanded:              23
           Total Criminal Cases Affirmed in Part, Reversed in Part and Rendered:                 3

Translated, this means in FY 2015 COA's in this state reversed trial courts 4.2% of the time in criminal cases. This, however, is an improvement over the 3.2% reversal rate in FY 2010.

Crunching this data means that in only about 4 in 100 cases are courts of appeal in Texas finding error in the trial court sufficient to turn the case around. More generally it means that if lawyers in the Texas criminal trial court trenches are pressed on a trial strategy decision which may risk waiving trial court error, they may want to take the risk. This would be the conclusion given the bleakness of COA appeal reversal rates. This would be even more true in non-constitutional error situations.

I realize these statistics confirm what other, more sophisticated writers have long been saying. When a meager 4.2% of appealable criminal trial court decisions are reversed and rendered or remanded by Texas Courts of Appeal, there is real danger to the concept of meaningful appellate review.

Thursday, May 12, 2016

Alexander Hamilton! Redux!

For the record, I was a Alexander Hamilton fan before the hit musical Hamilton became a pop cultural phenomenon. When it was leaked in June, 2015 the Treasury Department was intending to replace Hamilton's image on the $10 bill, I blogged here about the decision being a colossal mistake. Fortunately, that mistake has been apparently rectified.

The musical Hamilton opened on Broadway in August 2015. Sometime in the fall of that year I listened to the cast album from the musical and fell hard. Hamilton has garnered much media ink since it's opening, centered mainly upon the diverse cast, the musical's relevancy to the immigration issues debated today, and it's power to make American history meaningful to our most precious resource, students and children.

That road runs both ways, however. Hamilton managed to introduce a middle aged man to the power and beauty of hip-hop. It turns out an old dog can sometimes be taught some new tricks. 

It has become part of Hamilton lore how Lin Manuel-Miranda, the face, force and the actor in the titular role came to conceive the idea of Hamilton. Miranda read the Ron Chernow's biography about Hamilton, they later met, with Chernow becoming a willing, if skeptical, historical advisor to the fledgling musical. In a recent, wonderful story about the love of language that imbues the musical, Ben Zimmer of Slate writes about Chernow's initial misgivings:
While Chernow did not initially appreciate how the idiom of hip-hop could be a vehicle for Hamilton’s story, Miranda set about educating him as he had done for [Stephen} Sondheim. Chernow learned two things right away. First, 'with hip-hop, you can pack an enormous amount of information into the lyrics,' he said. And second, hip-hop’s reliance on rhyme, both rhymed endings and internal rhymes, allows for all manner of wordplay to delight audiences. Chernow realized that what Miranda was constructing was no less than a return to the verse dramas of an earlier age, when people would 'sit all evening listening to rhymed couplets and quatrains,' immersed in the pleasure of language.
Chernow gives some really good examples. Here is one: 
Chernow was struck immediately by the heightened language in the first stanza introducing Hamilton’s story: 'by providence, impoverished, in squalor.' And then the second stanza takes a turn for the colloquial, with the 'ten-dollar founding father without a father, who got a lot farther by working a lot harder.' 'It’s delightful how the language keeps shifting back and forth,' Chernow remarked.
The potential to reach young students was recognized immediately by the powers that be:
The plan for student matinees was hatched before Hamilton moved to Broadway, soon after it opened [off Broadway] in early 2015. At one show, Chernow, who attended many performances, spotted Lesley Herrmann, executive director of the Gilder Lehrman Institute of American History. When he asked what she thought, Herrmann exulted that 'this is the greatest opportunity in our lifetime to interest schoolchildren in American history, and we have to take advantage of it,' Chernow recalled.
Hamilton won the 2016 Pulitzer Prize for Drama. The show has won a Grammy award and the Tony awards in June should be renamed "The Hamilton Award Show." It is also teaching old dogs like me.