Sunday, June 26, 2016

The Greatest Texas Rodeo Cowboy

I squeezed in between two indifferent cowboys. The one to the right was older and shot me a glance of slight annoyance for taking up space he wanted to occupy. Yet to my everlasting appreciation, he begrudgingly yielded some the precious space as I sidled up, grabbed a fence crossbar and climbed up. We must have looked like a line of hens perched atop that fence. Wrangler jeans, hats and roping boots hooked by the heel on the fence rung below the top of the fence surrounding the roping box.

It was fall 1987 and I was in San Angelo, Texas. I was a newly minted lawyer, but not about to let anyone there know. I was with my oldest friend, Billy Wayne, working that October weekend for a guy who sold roping equipment out of a trailer at the San Angelo Roping Fiesta. My boss that weekend had been nice enough to let me work a variety of events for him while I was in law school, and the chance to go to San Angelo and watch the match steer roping at the Fiesta pitting Joe Beaver and Phil Lyne against one another was something I was not missing.

I had admired Phil Lyne since watching a documentary called "The Great American Cowboy." It was sometime in the mid 1970's when, as a somewhat rudderless teenager, I watched that movie on a muggy Houston evening at drive in theater called the Thunderbird whilst sitting in a folding chair on the back of a pick up truck. Beer had also been involved. It really changed my life.

I will not bore with what happened over the course of the next decade after watching that movie, but it included work, some luck and good horses. By the time I graduated from law school, I was roping calves regularly in competition. I had, however, never seen Phil Lyne compete as he was then long retired from competing regularly in Professional Rodeo Cowboy Association (PRCA) events.

That changed in San Angelo.

The San Angelo Roping Fiesta is legendary amongst roping enthusiasts. Literally thousands showed up not only for the invitational calf roping, but to watch the match roping between Lyne and Beaver. I had worked selling ropes during the invitational calf roping but made it clear I wanted to watch the match, not that anyone would be browsing for ropes while Beaver and Lyne faced off. It was the first time I had watched a steer roping, also known by the more accurate moniker "steer tripping."

Steer roping derives its name from the necessities of ranch work. When alone with larger cattle roaming free range it was, and is still, necessary to put hands on likely uncooperative cattle. To bring them down, it is necessary to rope horns similar in a way done in team roping, then pitch the rope slack behind the cattle's backside riding off at a 45 degree angle, tripping the cattle to bringing them down. The cowboy then dismounts quickly to get to the grounded cattle to tie their legs with a large piggin' string. The lone cowboy can then tend to the immobilized cattle.

As this description suggests, it is potentially hard on the livestock and as the PRCA has been a large target of animal rights activists, steer roping has been in steady decline. This was subordinated for me. I just wanted to see Phil Lyne in the flesh and watch him rope.

Lyne, as I remember it, had agreed to be a replacement in the match for another cowboy, but I could be mistaken. Beaver was the reigning PRCA calf roping champion, having won the PRCA title as a rookie in 1985. I had seen, even roped against Beaver in open calf roping events. Big as a linebacker and gifted with a rope, Beaver is as good a roper as has ever lived.

Beaver beat Lyne on I what I remember to be ten head, but it did not matter to me. I watched Phil Lyne. After the match I went round back and stood 6 feet away from the man and his horse. About my size, hard as nails - both he and his mount. I remember it like it was yesterday.

I have always tried to bring what roping taught me to my law practice. You have to work. You have to practice in the courtroom the same way you practice in the your office. You must adjust your aim in the on the fly, because sometimes the law, like the cattle, doesn't cooperate.

Thanks, Phil.

Saturday, June 25, 2016

SCOTUS, DWI Blood Testing and Brazos County

The Supreme Court of the United States (SCOTUS) decided two 4th Amendment cases this past week. The first, Utah v. Strieff has received the bulk of press coverage, with much ink being split on Justice Sonia Sotomayor's impassioned dissent. Strieff is important, and the dangers expressed by both Justice Sotomayor and, separately, by Justice Elena Kagan in her more muted but equally effective dissenting opinion are real.

However, it is the other 4th Amendment case, Birchfield v. North Dakota, which may have more wide ranging, practical effect in Texas. For example, I fully expect to see legislation introduced next session seeking to criminalize refusals by DWI arrestees of law enforcement requests (with probable cause) to provide a breath specimens. Birchfield approved of such a scheme, and with SCOTUS's blessing, it makes sense that a legislative push will occur.

If this comes to pass, think of how coercive such a situation will be: Already cuffed and stuffed, an arrestee is told the refusal to provide a breath specimen will possibly be admissible in a later DWI prosecution, their license or privilege to drive will be suspended for a minimum of 180 days, AND they will be charged with ANOTHER misdemeanor offense as a result of their refusal.

Powerful stuff.

Birchfield held blood specimens are another matter. Criminal penalties are verboten for warrantless collection of blood specimens under Birchfield. SCOTUS reasoned because blood testing is more intrusive than breath testing, warrantless collection, including implied consent laws, having criminal penalties for refusal to provide blood specimens violate the 4th Amendment.

Currently, Texas implied consent laws do not (at least according to our courts) carry penal penalties. That is to say, a defendant arrested for DWI who refuses, after proper request, to provide a breath or blood specimen can have their license or privilege to drive subject to suspension are not subject to penal sanction for the refusal.This type of implied consent statutory scheme is beyond the reach of the holding of Birchfield:
Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. (citations omitted).
So what's the problem? Well, Brazos County is almost exclusively a blood testing jurisdiction. In other words, most of the specimens collected under the implied consent laws here are blood specimens. With Birchfield, that may change, but only time will tell.

However, I have written before about DWI arrests in College Station, which because of the college demographic, occur frequently. In College Station, if a DWI arrestee consents to provide a specimen (at least based on my experience) they are allowed to bond out of the city jail on a pre-set $2000-$3000 bond. If the DWI arrestee refuses to provide a (blood) specimen, they are held, and later transported to the Brazos County Jail to await magistration and the setting of bond, which if they provide an out of county address (most college students do) will be total $4000. Moreover, if College Station PD transport get the arrestee to the Brazos County Jail late, the arrestee will have to wait another 24 hours until the magistrate returns for the next morning jail run.

If this type of policy was problematic before Birchfield, it is an even more so now.

Under Birchfield, I believe the consequence of continued detention of an arrestee who refuses DWI blood testing, while releasing a consenting DWI arrestee is penal. Under authority of Birchfield, this category of DWI arrestee now has a legitimate claim the refusal should be suppressed as evidence in a later DWI prosecution. To the extent the refusal also taints probable cause in an affidavit supporting a later search warrant for a blood draw, it could also result in loss of the entirety of the results of the warrant based blood draw.

We shall see.

Sunday, June 19, 2016

Stoikiy Muzhik for Father's Day

This film clip featuring actor (and Oscar winner) Mark Rylance, from Steven Spielberg's "Bridge of Spies" speaks much to me about fatherhood. The scene is set up by the convicted cold war spy Rudolph Hess telling his lawyer about a man his father knew when Hess was young. Within the context of the film, it is meant as a homage to the lawyer, played by Tom Hanks. It has a larger meaning.

Hess begins by saying his father told him "Watch this man." Is this not what children do? Watch? Watch us, and others, for good or for ill, to learn how to live their lives?

God knows, I have fallen many times. I certainly have not managed to live up to the idea here expressed. But, Fatherhood, I think, is about the trying.

Stoikiy muzhik. Stoikiy muzhik.

Thanks, Dad.

Thursday, June 16, 2016

Judge Alcala Strikes AGAIN on TX Death Penalty

A new week, a new broadside from Judge Elsa Alcala against the rest of the Texas Court of Criminal Appeals (CCA). Regulars to this blog may be tiring of her name. Sorry, but she is a lone, unique appellate voice in Texas, most especially in the way Texas metes out the death penalty.

I had other interests in combing yesterday's orders issued by the CCA. However, down the hand down list was Ex parte Murphy, a death penalty case in front of the CCA on a subsequent (3rd) state writ of habeas corpus application. The CCA, in a non-published per curiam decision remanded the case back down to the Bowie County (Texarkana) District Court for an evidentiary hearing on Brady violations.

However the writ application had included another basis for relief the majority did not order be part of the evidentiary hearing to be held on remand: That the Texas death penalty scheme is no longer constitutional based on evolving standards of decency. Judge Alcala concurred in the result, but dissented on the denial of this last basis of relief. She ordered her concurrence and dissent published. This is the first time I can remember a member of the CCA giving solid, well thought out reasons why a full evidentiary record should be made enabling a merits based decision squarely confronting the issue of the constitutionality of the Texas death penalty scheme.

Judge Alcala takes on the whole of that scheme. First, Judge Alcala gives a scathing, yet accurate account of how easily Capital Murder can be indicted in Texas. Her point is that far from the narrow, highly unusual category of offense for which only two punishments are proper, death or life without parole, Capital Murder can be committed in hundreds of different ways in Texas.
The capital-murder statute provides for around one hundred different ways that a person can be convicted of capital murder. The list of ways in which a person may commit capital murder is twice as long when one considers that a defendant may be convicted not only as a principal actor, but also as a party by, for example, aiding or attempting to aid another person to commit the offense. And the list is thrice as long when one considers that a defendant may be convicted of capital murder even if he lacked any intent to commit that offense but was part of a conspiracy to commit a felony under certain circumstances. (citations omitted).
Then Judge Alcala gets specific. Amongst the highlights? First, her position that Murphy presented sufficient evidence to allow a facial constitutional challenge to the Texas scheme:
Applicant argues that the Supreme Court’s previous holdings permitting the death penalty have been contingent on societal acceptance of that punishment, and he asserts that this acceptance has since changed. Presenting recent statistics demonstrating the significant decline in the use of the death penalty in the United States, applicant suggests that it is time for this Court to reconsider whether society still considers this penalty an acceptable form of punishment. I conclude that applicant has presented adequate facts showing recent societal disapproval of the death penalty that require further development in the habeas court.
Judge Alcala then supports this assertion with evidence presented in the writ application. She also makes the the case for an "as applied" constitutional challenge - specific to Murphy. Judge Alacala also argues the record supports remand on the issue of race improperly influencing the death penalty. The coup de grace? Whether solitary confinement for a decade on death row constitutes an 8th Amendment violation.

Judge Alcala ends her her opinion this way:
At this juncture, I do not decide the ultimate merits of applicant’s arguments that the
death penalty is unconstitutional, though it should be evident from my numerous opinions on this subject that, in my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today. Rather than refuse to afford applicant the opportunity to factually develop his complaints as this Court does today, I would instead permit applicant to make an evidentiary record of his assertions and to have the habeas court make findings of fact and conclusions of law. I, therefore, respectfully dissent in part to the Court’s order that refuses to remand applicant’s third claim.
The remaining question is why she chose this case to launch her broadside. Ex parte Murphy is being remanded - it is not a final judgment. Can Murphy appeal the denial of this third ground to the Supreme Court of the United States (SCOTUS) and follow the path she recently blazed in Moore v. Texas? I do not know. However, although Moore was appealed from the CCA to SCOTUS on state habeas review, it was an appeal from a final denial in the state writ proceeding. This is not the case in Ex parte Murphy. Further, even if appealable, SCOTUS would seem disinclined to review a state writ claim piecemeal.

It could be Judge Alcala felt the writ application was so well developed that she had to act. The lawyers representing Murphy, it should be noted are big law firm lawyers from the Washington D.C. office of Hogan/Lovells. Congratulations to them for what must have been a throughly briefed, and equally well supported Art. 11.071 writ application.

What is significant is that a Judge on the State's highest court of criminal appeals is shining a light on fatal deficiencies of a scheme that is supposed to insulate everyone but the worst of the worst from the ultimate penalty.

AND she tweeted about it.

Tuesday, June 7, 2016

The CCA's Tin Ear

Yesterday, the Supreme Court of the United States (SCOTUS) granted certiorari in two Texas death penalty cases. The first, Buck v. Stephens, involves race and the death penalty. It has, and will, receive much publicity because of the racially tinged testimony appearing in the case. However, Moore v. Texas, the other case for which SCOTUS granted certiorari, has greater long term potential for changing existing law.

The death penalty cannot be constitutionally assessed against the intellectually disabled (ID). It is in defining who is ID, and therefore ineligible for the death penalty that has caused trouble. 1 of the 3 clinical diagnostic criteria for ID is that a person must lack the ability to adapt their behavior in a meaningful way to the community around them. These are called, unsurprisingly, "adaptive behaviors."

Texas, for more than 10 years has used it's own adaptive behavior criteria for defining who is and is not ID for eligibility for the death penalty. In determining adaptive behaviors, we have NOT used the clinical criteria, but instead those factors listed in a case decided by the Texas Court of Criminal Appeals (CCA) called Ex parte Briseno. There is no telling how many Texas death penalty ID claims have been determined using the so called Briseno factors, but they are literally hundreds.

The CCA gave scant attention to Moore's claims that Briseno, and indeed, the entirety of the current Texas scheme for assessing ID, is inconsistent with what SCOTUS requires in defining who is ID and ineligible for the death penalty. Judge Elsa Alcala's lone dissent in the CCA set up Monday's SCOTUS cert grant. Like so much lately, Judge Alcala's ear is much more in tune with SCOTUS than those of her brother and sisters on the CCA.

I believe the SCOTUS grant in Moore signals Briseno's eventual demise. If that happens, a spate of new death penalty claims will torrent down alleging previous determinations of ID were improperly decided under Briseno's erroneous factors. This will happen, in part, because the CCA refused to listen to the the people who make diagnosis of ID their life work. It will happen also because the CCA refused to listen to Judge Alcala.