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?

Saturday, September 10, 2016

Texas' Intellectual Disability Idiocy - Part II

This is second in a series of posts related to Moore v. Texas. currently pending before the United States Supreme Court (SCOTUS).

The State of Texas has filed their Merits Brief in Moore. At issue is how Texas defines intellectual disability (ID) for purposes of exclusion from eligibility for the Death Penalty. Such claims are called Atkins claims - named after the case in which the SCOTUS decided this category of Defendant is ineligible for the death penalty.

Moore is significant for many reasons. A decision against the State of Texas would impact prosecutors who increasingly wrestle with doubts about the use of the Death Penalty, and a subtle, but growing number of taxpayers becoming more vocal in their desire to limit Death Penalty prosecutions. Decreased use of the Death Penalty buttresses the argument that a national consensus exists for abolishment under the 8th Amendment as fewer states are utilizing it, and within those states, use is restricted to a handful of counties.

A defeat for the State of Texas in Moore would further this push. Why? If the State of Texas loses, every Texas Death Penalty case with an ID claim decided since 2002 will potentially be found to have been decided under an erroneous legal standard. Evidence of the effect SCOTUS consideration of Moore has already had in Texas can be found in the fact that since the grant of certiorari the Texas Court of Criminal Appeals (CCA) has granted stays for every execution scheduled.

In addition to Moore's Merits Brief, discussed in Part I, of this series, amici Briefs in favor of Moore's position have been filed by the two most important organizations that diagnosis ID and by legal organizations such as the American Bar Association and the American Civil Liberties Union (ACLU), among others.

How the State of Texas argued their Merits Brief in SCOTUS has been therefore highly anticipated. The Brief was filed September 6, 2016. The State's Merits Brief opened aggressively. From the "Summary of Argument":
Neither the Eighth Amendment nor this Court’s decisions in Atkins and Hall [v. Florida] require States to adhere precisely to a particular organization’s clinical definition of intellectual disability. Atkins gave States latitude to develop substantive standards implementing the prohibition on executing persons with intellectual disability. Hall explained that States must consider the views of medical experts so that their Atkins standards are 'informed by the medical community’s diagnostic framework.' But neither case directed States to strictly follow a particular clinical definition of intellectual disability. To the contrary, the Court confirmed in Hall that those definitions 'do not dictate' the Atkins analysis, and '[t]he legal definition of intellectual disability is distinct from a medical diagnosis.' (citations omitted).
Hall v. Florida held the Florida ID Death Penalty scheme unconstitutional because of the use of a strict cutoff of 70 for the first of the three accepted clinical definitions of ID - intellectual functioning. Both the leading authorities on ID, the American Psychological Association (APA) and the American Association for the Intellectual and Developmentally Disabled (AAIDD) incorporate a Standard Error of Measurement (SEM) into intellectual functioning (commonly called IQ) testing. Florida did not, and SCOTUS held in Hall this failure doomed their Atkins claim procedure.

The State of Texas briefing points out that SEM is incorporated as part of Texas' Atkins claims. It is the second ID clinical prong inquiring into whether an individual's adaptive behavior deficits meet certain clinical standards, where the legal issue before SCOTUS exists. The most difficult argument for Texas to overcome is that deviation from clinically accepted standards regarding adaptive behaviors - use of the so called Briseno factors - is logically the same constitutional defect present in Hall. This argument is straightforward: Like Florida's non-constitutional use of a strict cut off in intellectual functioning testing, Texas' standard uses non-medically accepted standards in assessing adaptive behaviors.

Adaptive behaviors standards assess whether an individual has an inability (deficits) to adapt aspects of their behavior - called "domains" clinically - to the community that surrounds them. The strongest argument Moore and the amici make is that the Briseno factors improperly weigh adaptive strengths against adaptive deficits instead of considering deficits alone. This argument hammers that this non-medically accepted standard renders all but the most severely ID eligible for the Death Penalty in Texas, rendering the substantive promise that all ID are ineligible for the Death Penalty meaningless.

Texas's Brief rebuts this argument as follows:
The CCA also correctly noted that Texas’s requirement that adaptive deficits be 'related' to intellectual impairments 'is consistent with the APA’s current position on this issue.' Thus, although the AAIDD 11th definition omits that requirement, the CCA chose to retain it. After noting those definitional consistencies, the CCA relied on both the AAIDD 11th and the DSM-5 to explain specific clinical concepts relating to its analysis of petitioner’s evidence. Having thus 'consider[ed]' various clinical definitions of intellectual disability and “consult[ed]” them where it deemed appropriate, the CCA complied with Hall. The CCA’s informed decision not to go further and adopt either the AAIDD 11th or DSM-5 wholesale as Texas’s legal standard presents no error. (citations omitted).
The State also mined the evidentiary record to make what amounts to a legal sufficiency argument - that the evidence adduced at Moore's evidentiary hearing established Moore did NOT meet even the clinical definitions of ID under either the DSM-5 or the AAIDD 11th. Before going into that detailed fact based argument, I will wait for Moore's Reply Brief to see how it addresses this issue. It is noteworthy, however, that the habeas judge that heard the evidence regurgitated by the State in their Merits Brief decided Moore met the clinical definition of ID.

Finally the State addressed what has made the CCA's decision in Briseno media ready for ridicule. The CCA, unfortunately, referenced John Steinbeck's intellectually compromised Lennie Small in the novel Of Mice and Men in Briseno.
In all events, any assessment of the optional Briseno factors—or Texas’s separate three-part test for intellectual disability—should not be tainted by then strained efforts of petitioner and amicus ACLU to link them to Briseno’s fleeting mention of the character 'Lennie' from the novel Of Mice and Men. That lone literary reference has never been part of Texas’s Atkins standard....[The] “Lennie” comment should be understood for what it actually was: an aside. If redacted, the meaning of the paragraph would be unchanged—the CCA did not want to adopt an Atkins standard without consulting guidance from the Legislature. The remark has nothing to do with the pre-existing definitions of intellectual disability that the CCA endorsed, nor does it inform the optional Briseno evidentiary factors that the court described later in the opinion. (citations omitted).
As strong as I feel about the idiocy of the Briseno factors, the State of Texas is correct here. Although it probably was a bad idea to reference the fictional character, the reference was, in fact, an aside in Briseno. The APA and the AAIDD's amici briefs wisely stay away from the reference, hewing instead to the problems in the science. The same cannot be said of the ACLU's amicus brief. The Briseno factors (which have never been treated as "optional" by trial or appellate courts) are scientifically flawed. Attempting to leverage this unfortunate literary reference only diminishes the intellectual integrity of exposing those flaws.

Tuesday, September 6, 2016

What Bo Knows

There has been much discussion, posting and commenting on Florida State University football player Travis Rudolph's gesture last week of sitting at an empty middle school lunch table with an autistic boy named Bo Paske. It is a great story, mainly because of what Bo's mother, Leah, wrote about it in a Facebook post:
Several times lately I have tried to remember my time in middle school, did I like all my teachers, do I even remember them? Did I have many friends? Did I sit with anyone at lunch? Just how mean were kids really? [I] do remember middle school being scary, and hard. Now that I have a child starting middle school, I have feelings of anxiety for him, and they can be overwhelming if I let them. Sometimes I'm grateful for his autism. That may sound like a terrible thing to say, but in some ways I think, I hope, it shields him. He doesn't seem to notice when people stare at him when he flaps his hands. He doesn't seem to notice that he doesn't get invited to birthday parties anymore. And he doesn't seem to mind if he eats lunch alone. It's one of my daily questions for him. Was there a time today you felt sad? Who did you eat lunch with today? Sometimes the answer is a classmate, but most days it's nobody. Those are the days I feel sad for him, but he doesn't seem to mind. He is a super sweet child, who always has a smile and hug for everyone he meets. A friend of mine sent this beautiful picture to me today and when I saw it with the caption 'Travis Rudolph is eating lunch with your son' I replied 'who is that?' He said 'FSU football player', then I had tears streaming down my face. Travis Rudolph, a wide receiver at Florida State, and several other FSU players visited my sons school today. I'm not sure what exactly made this incredibly kind man share a lunch table with my son, but I'm happy to say that it will not soon be forgotten. This is one day I didn't have to worry if my sweet boy ate lunch alone, because he sat across from someone who is a hero in many eyes. Travis Rudolph thank you so much, you made this momma exceedingly happy, and have made us fans for life! 
As the father of a non-verbal autistic son in middle school, there is much about Leah Paske's Facebook post that is familiar to me. Travis Rudolph's gesture is laudable, but what struck me while reading the story was why Bo was left so alone that Rudolph felt compelled to sit with him in the first place. Bo has been described as a high functioning but that means really nothing without context. Bo's mother refers in her post to hand flapping, a autistic characteristic Bo shares with my son.

My son has been fortunate. He has had the benefit of wonderful special education teachers and assistants for many years. The school district has a program pairing special needs children with "typical" students. This benefits both the special needs student and the mainstreamed student who become their "buddy." My son has never had to eat alone, and is in the hallways constantly interacting with students of every kind. Thank you, College Station ISD.

To my surprise, I have learned not all districts do things this way - which may explain why Bo was alone. A special education teacher who I respect greatly took a position at a nearby school district middle school this year. This teacher found out before classes started that special needs students last year seldom left their classroom. This teacher told me they have to coax the special needs children out of the classroom. The reason? They feel different - even more so than most middle school students for whom this awkward time of life is already a challenge.

What a shame. It does not, and should not be this way.

Bo knows.