Saturday, September 23, 2017

Feed Me! Tech Edition

Yesterday I spoke briefly with Judge Kyle Hawthorne about the progress of the 85th District Court pilot program to go paperless. When Judge Hawthorne says paperless, he means what he says. Absolutely. No. Paper. It is really amazing stuff. I do not want to try and speak for him or his vision, but I think he advocates a cloud based model in which, using a application like Adobe's Sign and Fill, a defendant could, for example, sign off on plea papers on a tablet and have those documents immediately uploaded to the Court or District Attorney's office.

Pretty heady stuff, and it is to Judge Hawthorne's credit he has taken the lead on this endeavor. Many in the legal community (me) need to be taken kicking and screaming into the future. Nevertheless, I am not so old that I can't be taught some new tricks.

Brazos County has a Law Library on the Fourth Floor of the Courthouse, thanks to the good offices of Earl Gray. It has an assortment of digital and hard copy resources, including the Southwestern Reporter Series, 2nd and 3rd editions.

I sometimes like going to the law library when it is empty and sit among the books. Computer based legal research has leveled the playing field for small practitioners, but I miss the books. For example, the old hardbound Southwest Reporter would often add an "In Memoriam" in the front a volume - pictured above is an example - and a complimentary edition was presented to the family of the individual remembered. I read those memorials sometimes, paying some small tribute to an individual I did not know and their contribution to the Leviathan known as The Law.

It is yet another thing lost to the sometimes Little Shop of Horrors called technology. Like Audrey, it always seem to be saying, "Feed me!"

Tuesday, September 5, 2017

A Broken Faith

There is a young person I know, smart, ambitious, and devoted to their family. This person, a friend of my son, is also an undocumented immigrant. They navigated the Deferred Action for Childhood Arrival (DACA) application process, which included not just application, but multiple trips to Houston, fingerprinting and disclosure of an assortment of information that now identifies them for possible deportation from the only real country they have ever known.

They were brought by their parents from another country at 7 years of age, having no say so in the decision. They started public schools, earned good grades, and graduated. In the ensuing years, this person's parents worked in a variety of jobs, doing work others would not do. It has been a life lived in the shadows, a life lived in fear of coming to the attention of any kind of government authority. The family had another child, born about 5 years after arrival in this community, and who is, by birth, an American citizen. Unfortunately this American citizen's older sibling has no pathway to such status, no matter how hard they work, no matter how successful they are.

I thought that might change with DACA. The young person of which I write wanted to legitimately work. They wanted to legitimately hold a drivers license and social security card. They wanted to legitimately hope for some way to earn a pathway to citizenship with the country to which they in every meaningful way belonged.

So I encouraged DACA when they asked. I told them to have faith in this country, a nation built by immigrants. I told them I was descended from people not so different then they. I told them that although DACA provided no pathway to citizenship, once people in authority saw how positive the program was, how it added to our social, economic and cultural fabric, Congress would finally act. Congress, I said, would cement not only the program but to add a pathway. I said partisan bickering would give way to good public policy.


This young person, who has done everything right, now joins 800,000 others living in that State known as Fear. These young men and women who trusted us, trusted me, when I said "Come out of the shadows, it is the right thing to do" have been betrayed. Spare me the Separation of Powers argument. The last bastion of banality is the theoretical. What we have done at the human, practical level is to break faith with young people who want nothing more than to trust in America, and to return that faith by making her great not by word, but by deed.

Tuesday, August 22, 2017

The Paperless Chase

     FADE IN


Opening credits roll as students gradually enter into a tiered classroom. The focal point of the room is a raised dais at the center with a simple desk. When all the students are seated, a graphic appears:
The Academic Year Begins

Mr Hart? Please give us the facts of Hawkins v. McGee. (Pausing to look around the room) I do have your name right? You are "Mr. Hart"?

Yes, sir, I am Hart. I’m afraid I cannot do that.

Mr. Hart, you must have known the first day assignment are posted on the digital portal available on the law school social network? For pity sakes, the man who invented the social network did so while a student at this institution.

No, sir. I went to the bulletin boards at Langdell Hall, but there was nothing there. No paper posting the first day assignments for Contracts.

Paper!? Did you say Paper, Mr. Hart! 
Stand up so you can fill the room with your intelligence. So, you ASSUMED today’s assignment would be on paper and posted on bulletin boards at Langdell Hall?

Yes, sir. I mean isn’t that the way it’s always been done? Isn't the law about continuity, and a resistance to sudden change?  What is the law without paper?      

The Law is now paperless, Mr. Hart. Digital!
     (looking more closely)
Where is your laptop, Mr. Hart?

I don’t have a laptop, sir.

No laptop!? You cannot hope to succeed here, in this place, without a digital footprint. You cannot succeed as A LAWYER with paper ANY LONGER, Mr. Hart. Court filings are now paperless. How do you not understand?

What about privacy, sir?

Privacy? What privacy? These are public filings, Mr. Hart. 

Data brokers, sir. Data brokers who mine online digital public data, turn around and charge end users for access. Even if a person is later exonerated and able to expunge criminal records, brokers with pre-existing access could undermine the whole purpose of the expungment process.

Ah ha! You, Mr. Hart are what we in THE LAW call a bleeding heart. A Snowflake! You must be some kind of budding criminal defense lawyer. This is Contracts, not Criminal Law. Spell it with me, C-0-N-T-R-A-C-T-S. Mr. Hart, here is a dime - no, never mind - I forgot no more pay phones - here is a cell phone. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer. 
But Professor Kingsfield, prosecutors have concerns too. Concerns about inadvertent disclosure of sexual assault victims names, educational records and other background information being made accessible digitally on the internet. A great man once wrote, "The internet is not written in pencil, it's written in ink."

Ah, Mark Zuckerberg.

No, sir. Aaron Sorkin.

Ha! Fake news! But it matters not, Mr. Hart. These are not the worry of The Law!! Remember, courthouses used to burn down!

Isn’t that why most courthouses had fireproof vaults back in the day?

That’s why we have computer fire WALLS Mr. Hart! You millennials all know software - you have pre-ordered Madden NFL 18? Who your age hasn't?

No sir. I enjoy paper. And libraries. Hard bound books. It's one reason why I came to law school. 

You must be Antifac, Mr. Hart. What red blooded American male under 25 years of age won't have Madden NFL 18 when it drops? (to the class) You teach yourselves paperless law, but I train your digital minds. You come in here with a skull full of mush; you leave with a mind full of digital lawyer mush.


Saturday, August 19, 2017

A Trip To Eastham

I visited a client at the Eastham prison unit on Friday, August 18, 2017. The Eastham unit has a Lovelady, Texas address, but it is a long way from anywhere. The cell blocks sit on almost 13 thousand acres, and are located around three quarters of mile from the farm to market road needed to get to the entrance to the unit.

My client was convicted more than 30 years ago. Eastham is not air conditioned, and I mentioned that fact and the heat advisory issued for the day to him. His response? He  told me he did not notice much because when he was last in the free world “air conditioning was still a luxury.”

As I drove back to the office, I thought more about what he said to me. I thought not just about air conditioning as a luxury, but how the world has changed in those more than 30 years, and how it will change in 30 more. I thought about my 13 year old son – who I have written about before – and the world that will need to find some accommodation for him in those years. I thought about how the systems surrounding The Law have changed, and how Eastham seems rooted in a past I hardly recognize.

A past hardly recognized and a future I fear, not just for my non-verbal son, but for the profession that has made up much of my adult life. This morning I read a piece from Bryan Washington in the Paris Review Daily titled Exit Strategy: A Letter from Belize with the subtitle You Can’t Escape Your Problems at Home. It was the more interesting because Washington grew up, like me, in Houston, and still lives part time there. The short piece is about his disorientation in the current world and a trip he made in part to escape.

Toward the end Washington wrote:
There’s this quote by Heraclitus I found on my parents’ bookshelf when I was a kid: ‘Geography is history.’ He’s been dead for two thousand years and that line will always be true. There are problems, and then there are your problems. Focus on them all and you’ll end up cross-eyed. But the time will end up passing you by either way.
Like my client at Eastham and the lack of air conditioning, time does not really care about problems large or small. Focusing on the things you can change must be the priority. A trip to Eastham will help with that realization.

Thursday, June 1, 2017

Jett Rink, Cowboy, and Liquor By the Drink

Cletus "Cowboy" Davis is beginning semi-retirement today, leaving the building he has shared with me and his son, Kyle, for the last dozen years or so after moving to Bryan from Houston. A man with as great a name as Cletus, and a nickname of "Cowboy" has stories to tell.

So he does. Cowboy is a living, breathing history book.

I write about only one. It involves Jett Rink. 

Yep, THAT Jett Rink. 

For the uninitiated, Jett Rink is a iconic, fictional Texan. He was a character in Edna Ferber's bestselling 1952 novel "Giant."  In 1955 it was made into a big budget, legendary movie starring the trio of Rock Hudson, Elizabeth Taylor and, of course, James Dean in the role of Jett Rink. It was James Dean's last film before he died in his beloved Porsche Spyder along a California highway. It only added to the legend. Heck, there are kids my sons age named Jett. 

Ferber's hell raising, rebel, wildcatting character of Jett Rink was based on Houston oilman Glenn McCarthy. This is where Cowboy enters, stage right.

In the early 1970s Texas did not allow liquor to be sold by the drink. That means you could not walk into a bar in Texas and order a mixed drink unless it was in a private member bar. Most Texans brought their own bottles of liquor to non-private clubs and there purchased what were called "set ups," ice and mixers like water and cola.

Among the many things Cowboy Davis has done for Texas is to serve as a member of the Texas House of Representatives. His district was the upscale Memorial section of Houston. In the early 1970's he carried liquor by the drink legislation in the Texas House. This did not sit well with folks who had significant investment is private clubs. For goodness sakes, who would pay to join a private club if liquor by the drink could be sold anywhere?

At the time, McCarthy, who build the iconic Shamrock Hotel near the area now occupied by the Houston Medical Center either owned or had a significant investment in the Petroleum Club of Houston. It was the go-to private club of that era located at the top of what was then named the Humble Building in downtown Houston. One night, Cowboy and his wife Betts stepped into the elevator in that building, destined for the club.

Then in stepped McCarthy. 

As Cowboy tells it, McCarthy was already several drinks into the evening. He proceeded to upbraid the then young Texas House member for the legislation, using the confined space to leverage his expletive laced tirade. His alcohol soaked point was the legislation would render clubs like the Petroleum obsolete except for niche customers. Not just anyone can claim a tongue lashing from the likes of McCarthy. 

No matter, the legislation passed, and Texans now have basically never known a time when they could not go into a dance club, bar or venue and not order a mixed drink. You have
Cowboy Davis to thank for that, despite the best efforts of Jett Rink. 

That's Cowboy to the left, on the Texas House floor with Kyle on the opening day of the legislature, sometime circa 1971. A different time, and a different kind of Texas House of Representatives.

And that is just one story. The man is a walking history book. I hope you ask him. He is here, in my town, still practicing law at 87 years of age. A good man. A man of experience and history. A lawyer's lawyer.   

Sunday, April 30, 2017

John Hill, Racehorse and The Best Case Ever

Richard Haynes died late Thursday night, April 27, 2017.

I first remember hearing Racehorse Haynes' name in the early 1970's - from my father. Houston was a much smaller community then, and the local medical community was even smaller. My father is an OB/GYN who back then knew and liked a plastic surgeon named John Hill. Haynes represented Hill when Hill was indicted and tried for murdering his wife, the socialite Joan Robinson Hill. Like Haynes, my father came to fervently believe what killed Joan Hill was toxic shock syndrome and not some cockamamie scheme involving poisoned pastries.

I later got to meet not only Haynes, but the other major player in the Hill legal maelstrom - Ernie Ernst, the Harris County Assistant D.A. who tried the Hill case against Haynes to mistrial. I actually had the opportunity to try a case in front of Ernst, who by then was a District Court judge in Walker County - and while the jury was out we talked at length about the Hill case. I remember Judge Ernst being surprised I knew so much about it - but how could I not?

Both these legal legends are gone now, and we in the legal community are the poorer for it.

Yet the Hill case was not Haynes' best trial work. This quote from a Houston Chronicle story about Haynes' self described biggest case really is all anyone needs to read to understand why the criminal defense bar revered Haynes.
Nope, Haynes said. The best case he ever won was when he represented a poor black man unjustly taking the rap for a white guy who stole some tools from a construction site. After a jury found the defendant not guilty, his client's impoverished family threw a party for Haynes at their Third Ward house, and his children hung up a sign saying, 'God bless lawyer Haynes.' He was one of the most famous lawyers ever to set foot in a Houston courtroom, but he never forgot that sign.
I watched Haynes try a DWI case in Bryan many years ago. Haynes was one of the few lawyers that when they showed up to try a case, the local bar would turn out just to watch. He was that much a legend. I have a signed picture of Haynes hanging in my office, courtesy of local attorney Heath Poole. It is one of my most prized legal possessions.

Thursday, April 20, 2017

UPDATED: "Face of a Killer" - Sorry, Not So Much

UPDATED 4/23/2017: The Eagle has a front page, above-the-fold story on Ms. Freeman's brutal murder in their Sunday (4/23) addition. On the jump page, the story calls the technology the subject of the post below "cutting edge." Let us turn this technology around a bit. What would be the likelihood of a judge granting pre-trial county expense money to cover the cost of this technology to determine whether the resulting DNA composite resembles the arrested client? Probably not good. Putting aside the issue of county money, what if after a Sheriff's Office (S.O.) investigation and arrest, the arrestee self paid for the same technology featured in these stories? What if the resulting composite bears no resemblance to the arrestee? What then would the Brazos County D.A. and S.O. say about the admissibility of this technology in a courtroom, or in front of a grand jury? I bet it would not be "Hey, it's cutting edge technology, it's all good!"

ORIGINAL POST: When I read the breathless headline in the Wednesday print addition of The Bryan/College Station Eagle that is also the title of this post, I shook my head. There staring at me under that banner headline was the DNA based face of the killer of Virginia Freeman in south Brazos County from1981.

 It was like reading a summary of an episode of CSI.

The problem? Well, at this point the science behind the composite of the killer's face has not been proven valid. In fact, it is not so much science than speculation based on unnerving extrapolation. You would not know that from The Eagle story, or the story from our local television station KBTX, or a dozen like it from various news outlets and platforms from New England to Arizona - here, here and here.

It is the message rather than the messenger I have the bone to pick with. Sheriff Chris Kirk is one of the finest lawmen I know. As an investigator he was both intelligent and meticulous. As Brazos County's elected sheriff, he has brought stability to a position that for many years had been dangerously unstable. I think we in this county take that stability for granted, but if you lived during the years of upheaval in that office, you appreciate Sheriff Kirk even more.

So, to the  so-called science. The second of the stories linked involves the 1987 death of Darlene Krashoc at Fort Carson Colorado. Another, reporter, Carol McKinley, took a different angle for her story about Krashoc's death and the use of the same new technology the subject of the Freeman press conference. McKinley actually spoke to qualified people urging caution about the reliability of the science and false expectations faux science brings:
'Phenotyping is not state of art. It’s not the state of anything,' says retired Denver homicide detective Jon Priest. He is concerned that phenotyping gives false hope to victims families who are desperate for answers.
'This is one of those things that is not proven, supportable, nor accepted,' Priest said, adding he’s not against trying new technology. 'The science may get there someday, but it ain’t there now.' 
And this:
'It’s giving the family unrealistic expectations,' says Dr. Richard Spritz, director of Human Medical Genetics and Genomics at the University of Colorado School of Medicine. 'Do I think it’s likely having this technology will get them to a perpetrator? No. Because the reliability of this technology has never been subject to critical tests. The likely reliability is low.'
Ellen Greytak of the company, Parabon Snapshot, whose proprietary technology did the phenotyping for the Sheriff's Department, videoed into the presser on Tuesday. As I wrote above, all very CSI. The price tag for the work was paid by the National Geographic Explorers, who, in exchange for paying for it, was present filming the presser as part of a documentary concerning the investigation. 

The critical question is whether any results other than heightened expectations leading to crashed realities will be realized.  

Greytak, according to McKinley's story, says the technology  "[helps] narrow down suspects… gives law enforcement the ability to eliminate them," Yet the headlines and the emphasis is not elimination, it is putting a face with the the DNA. Greytak's statement about elimination is like saying the reason to buy a self driving car is because of its curb appeal - it is just not the sell. Instead, the sell is the technology to put a face on a killer. The science of DNA has proven it can tell you the killer's race, eye and hair color. But provide a face that resembles the killer then and now? NO.

Forensic science is easy to fall in love with, but is littered with examples of being jilted by junk. DNA, the gold standard, has been rocked by changing standards of comparisons and probabilities on mixtures. Bite marks, blood spatter analysis, shaken baby syndrome, all now are forensically questionable.

I believe the science behind this is no better than alchemy at this point.

Sunday, April 16, 2017

Remembering Clint Greenwood

40 years is a long time, but Clint Greenwood is someone easily remembered. Clint and I graduated from the same Houston high school, Spring Woods, located in the Spring Branch area of west Houston. Clint graduated in 1978, a year after me, but he and my sister, Lynn, were classmates and friends, and some of their friendship rubbed off on me.

Clint was smart, funny and popular. He was a good athlete, played football, and I think we ran track together. My sister's high school class was very bright, and I think Clint graduated in the top 10%. I know he later graduated from Rice University, and that speaks volumes. In his obituary it mentioned Clint graduated South Texas College of Law in 1986, a year after I graduated, but I have no memory of Clint there.

Instead, it is from high school that my memories of him remain. A lean 18 year old in blue jeans, smiling and cracking wise about cars and girls. When some 35 years later I began reading about him in connection with his role in former Harris County D.A. Pat Lykos administration, I remember thinking it ironic that after all the time that had passed since high school, he and I both ended up as lawyers involved in the criminal justice system. I also remember thinking better of the Lykos administration - I still care very much for my old hometown of Houston - because someone as bright a Clint was part of it.

I know nothing of his travails in that position. I know nothing other than the bright energetic young man I knew in high school and the tragedy and senselessness of his death.

Perhaps some good comes from remembering him today, of all days.

Happy Easter.

Wednesday, March 29, 2017

The CCA Is Taken to the Woodshed

The Supreme Court of the United States (SCOTUS) decided Moore v. Texas yesterday, March 28, 2017. Moore tested whether a state, by using their own definitional terms, could take themselves right out of having to follow a SCOTUS mandate. In this situation, it was a SCOTUS decision exempting the Intellectually Disabled (ID) from the Death Penalty.

Since 2002, the Texas Court of Criminal Appeals (CCA) has basically defined ID in a way different than the medical community. In a practical way, this has ensured defendants medically classified as ID were still eligible for the Death Penalty despite the SCOTUS prohibition. Yesterday, the CCA was taken to the woodshed by SCOTUS. The 5-3 opinion can be read here. Amy Howe, of has analysis here.

Many, more qualified commenters have, and will, break down the decision, but here are some takeaways you might not see elsewhere:

1. Ruth Bader Ginsburg wrote the majority opinion, not Anthony Kennedy. This area - ID - has been dominated by the swing vote Kennedy. Justice Kennedy wrote Hall v. Florida, in which SCOTUS smacked down a different definitional end run around the SCOTUS decision exempting ID from the death penalty. However, in both tone and smack down, Moore was the far more aggressive opinion, probably owing to RBG's authorship. The thing of it is Kennedy did not write separately, joining Ginsburg majority opinion. Justice Kennedy may be coming around to RBG and Justice Breyer's way of thinking about the Eighth Amendment being incompatible with Capital Punishment schemes.

2. The CCA did not help it's cause when it decided Petetan v. State on March 8, 2017. Presiding Judge Keller wrote the majority opinion. Petetan was on direct appeal from a death verdict from McClennan County. Citing and relying on the same bad law which was subject of the then pending Moore case in SCOTUS, the CCA upheld the verdict finding sufficient evidence that the defendant was not ID and therefore eligible for the Death Penalty. It was a particularly cheeky move by Keller and her cohorts on the CCA, and Judge Elsa Alcala called them out in her dissent:
I would defer resolution of this appeal until after the Supreme Court decides
Moore v. Texas, in which the issue there, as here, is whether Texas’s legal standard for determining intellectual disability violates the Eighth Amendment’s prohibition against the execution of intellectually disabled people.
Judge Alcala's position would seem to be a reasonable one, right?  Let's not waste time, money and expense deciding a case whose outcome may change based a pending case at a higher pay grade. The CCA instead plowed right ahead, and in an 8-1 decision upheld the verdict of death. SCOTUS pays attention to these things, I promise. RBG gave a judicial shout out to Judge Alcala's dissent in Moore from the CCA  - twice - in her majority opinion. I think it no coincidence Moore was decided less than 3 weeks after Petetan. Sometimes, I cannot figure what is going on inside the CCA chambers. What internal machinations and divisions would lead to the CCA thinking deciding Petetan before Moore was a good idea?

3. Judge Neil Gorsuch would not have made a difference had he been confirmed and voting with the minority of Chief Justice Roberts, and Justices Thomas and Alito. Gorsuch is not a cinch to vote with this wing on this issue. Anthony Kennedy is a mentor, and as I have mentioned, signs are that Kennedy has steadily moved left on the Death Penalty issue. Of course, not to be macabre about it, but the CCA and others of the opinion that categorical exemptions from the Death Penalty are bad idea under the Eighth Amendment may be waiting to see whether Ginsburg, Breyer and Kennedy survive the Trump Presidency.

4. What the heck is Texas going to do with 15 years of ID Death Penalty habeas decisions on the State and Federal level relying on bad law? Will they need to re-litigated? The answer: Probably. This could mean new state and federal habeas claims for literally hundreds of death row inmates.

5. Pennsylvania (I think) and at least one other state use similar work arounds defining ID for exemption for the Death Penalty as Texas. They better be taking a hard look at their current practice in this area.

As a small town, in the trench lawyer, I am pleased that SCOTUS has recognized the illogical and non-scientific approach taken by Texas in this area. It is something I feel like I have been flailing around about for almost a decade. More important, as the father of a conventionally diagnosed ID 13 year old, I am also happy the science won.