Denial thrives in Texas

Remember Cameron Todd Willingham? The Texan executed in 2004 for murdering his 3 kids in a fire that experts now agree should never have been labeled arson? Not only does his prosecutor (now a judge) refuse to acknowledge the possibility that Willingham may have been innocent, but the Governor who signed his death warrant doesn't seem to want to face the realities of the case, either.

The Texas Forensic Science Commission had hired arson expert Craig Beyler to review the case. It was Beyler's report that sparked so much discussion of Willingham's case in August. After that report was released, Gov. Perry referred to Beyler, one of the foremost fire experts in the nation, as a "supposed expert" (his airquotes clearly implied) and steadfastly maintained that he had seen nothing that made him question his decision to sign Willingham's death warrant. Both the former prosecutor and the governor deserve to be mocked more than a little for their total denial of Beyler's findings (which have mirrored the findings of several other top fire experts).

But the Governor has now taken his denial a step further. Today, the Governor abruptly removed three members of the commission. The Governor says there is nothing political or questionable about the removals: their terms were up and it's within his power to appoint new commissioners. This sounds reasonable enough until we realize that the commission was scheduled to review the Willingham report on Friday, a meeting that will now not happen as 1/3 of the commission seats are now open. And it had not been an uncommon practice for the sitting commissioners to have their appointments renewed. So it's pretty hard to ignore the very convenient timing of the Governor's decision not to renew these three appointments on the eve of a meeting that could have ended with the commission declaring that the state, on Gov. Perry's watch, had executed an innocent man.

Gov. Perry, Judge Jackson, it's time to take your heads out of the sand. I'm not asking you to state definitively that you made a mistake in this case. I just want you to acknowledge that it's a possibility. It's going to be very hard for an honest discussion of the death penalty and issues relating to wrongful convictions to go forward until you do. Maybe that's your goal, or maybe you just couldn't live with the guilt of murdering an innocent man. Either way, it's time for you two to man up. If you're so sure the death penalty is a viable punishment, then you should both be a little more willing to address its failures. One way to ensure we get more wrongful convictions is to ignore the lessons we could learn from the wrongful convictions we know about. But we can't get anywhere when people doggedly cling to the notion that they couldn't have made a mistake.

Executing an innocent man would be bad enough, but refusing to accept even the possibility of a mistake is cowardly, reckless, and just plain immoral.

John Couey may be dead, but is his appeal?

John Evander Couey, the man convicted of murdering Jessica "Jessica's Law" Lunsford, died today, a mere two years after he was sentenced to death. Being an appellate attorney, my first thought was, "His direct appeal must still be pending." And, sure enough, a quick check of the Florida Supreme Court's docket shows that the briefs have been filed and oral argument is set for November 3.

In Kansas, that oral argument would proceed as scheduled. A direct appeal here continues even after the defendant dies. Sentencing issues become moot, of course, but the conviction issues remain. As his appointed lawyer, I would be as ethically obligated to zealously advocate for reversal of a dead client's conviction as I would be for a live one.

I might have to do a little research to find out what the rule is in Florida. I suspect that if his appeal does continue, that might raise some hackles. I'm sure it would seem like an awful waste of time, money, and resources to pursue the criminal appeal of a dead man. Personally, though, I love that Kansas recognizes the value in still reviewing those cases. An appeal doesn't require a defendant's presence; it's purely a chance for lawyers and appellate courts to argue over whether the trial was conducted fairly and properly. Those issues don't become irrelevant just because the defendant has died. (By contrast, issues related solely to sentencing or issues raised in post-appeal motions, like habeas corpus motions, are irrelevant because they focus on whether and how the state should hold the defendant.)

If anyone knows the rule in Florida, let me know.

Why not just buy an island and be done with it?

Homeless sex offenders directed to woods

Georgia's tough sex offender law is forcing some who can't find places to live to take up residence in a tent in a wooded area behind a suburban Atlanta office park.

This is nuts. Nine men are now living in the camp in Marietta, GA. Registered sex offenders in the area can't live within 1000 feet of a school, church, park, or other spot where children gather, which means the vast majority of the metro area is off limits. Granted, all but nine of the registered offenders in the city have found places at least a step above this last resort, but I'm sure it wasn't easy for all of them.

One of the men has a wife and a home, but isn't allowed to live there. Which makes perfect sense, because we wouldn't want a man working to reform himself and live a decent life to have the support of family and the stability of a home. The state of Georgia is just setting this guy up to fail because it seems inevitable that if he can't find somewhere with a roof, he's going to sneak into his home on those cold nights.

Driving registered sex offenders into the woods and under bridges seems so pointless to me. The men in this article describe feeling hopeless, like animals. They can't adequately shower or brush their teeth. They can't keep themselves dry or warm. That's not placing offenders in an atmosphere where they are likely to succeed. Is it too Machiavellian of me to wonder whether that's the point of these laws? We can't just incarcerate people forever, so let's set up such onerous restrictions on them that it's virtually impossible for them to comply and then we can keep locking them up for new violations. I really can't think of any other way that society is protected by forcing these men to live like this.

Good news for drinkers

How many times have you read about a drunk driving accident in which the drunk driver was just fine but the other driver didn't make it? It always seems like such a cruel twist of fate that the person most likely responsible for creating the deadly situation survives while someone else has to die. Turns out, there is a medical explanation for this phenomenon. Alcohol may protect the brain from traumatic injury. It's always interesting to me when anecdotal observations like this turn out to be true and to have reasonable explanations.

I think the lesson here is that drunk driving saves lives, just the wrong lives. Obviously, people still shouldn't drive drunk. But maybe getting a little soused before being a passenger on a car trip isn't such a bad idea. And maybe we should re-think open container bans for passengers. We make passengers buckle up, so why not make them drink up? It's for their own protection.

I wonder how MADD will respond?

Trial things that have been annoying me lately

1) Stupid arguments. Usually by prosecutors, sometimes by judges, and on occasion even by defense attorneys (but not this defense attorney, of course). I think we need to establish a new objection basis for trial attorneys. We need to be able to say, "I object to counsel's argument, your honor, on the grounds that it's just plain stupid." Like, for example, the prosecutor in the Todd Willingham case (the innocent but executed arson defendant I've written about before) who argued that Willingham must have killed his kids because he had previously tried to kill his kids by beating his wife when she was pregnant. He further argued that Willingham should be executed because he was clearly a devil worshiper because he had an Iron Maiden poster on his wall. The problem with these stupid arguments is that sometimes the emotional appeal of the arguments can be so strong, it can be hard to recognize the sheer stupidity.

2) "Whereupon a bench conference was held outside the hearing of the court reporter." There is no excuse, absolutely none, for anything that goes on in a courtroom not being recorded. Ever. Even if all parties remember to restate the discussion later on the record, that's really no good substitute for the original discussion which led to the ruling. And sadly, the parties don't always remember to make a record of that discussion later, which then leaves the defendant suffering later when he can't show the appellate court what his actual objection was. Along these same lines, the court reporter should record everything that is said in the courtroom, even the reading of the instructions to the jury, because you just never know when a judge will misspeak or something will happen that does need to be memorialized for an appeal.

Plaxico goes to prison

Does anyone actually feel any safer now that Plaxico Burress is behind bars? He's the NFL wide receiver who plead guilty to a firearms charge after accidentally shooting himself in the leg at a nightclub. He did not have a license to carry a handgun in New York. (But as I understand it, he had legally purchased the gun and did have it properly registered in another state.)

Look, we can debate the wisdom of carrying guns. (I'm personally would never touch one.) We can certainly question whether he was reckless with his. Fortunately, he managed to hurt only himself. And we can discuss the need for proper registration of guns and and certification for their owners (but in a post-Heller world, the defense attorney in me really wants to take on the law Burress was convicted under).

But regardless of any of these issues, I just can't see how the world is better off by putting Burress in prison for two years. He suffered plenty of pain and humiliation by the injury to his leg, didn't he? For a world-class athlete who makes his living by using his legs, there's not much more effective punishment than a little leg damage. What can two years in prison add? That will be two years away from his kids, one of whom hasn't even been born yet. His children will most definitely not benefit from two years without their father. Two years that he won't be able to earn an income, and in his profession, he has a limited earning window. Two years that he'll have to live in a cell, which may be something he'll never be able to shake.

Why do we have such a limited concept of how to respond to rule-breakers? There have to be better ways to deal with people who violate laws. We have a ridiculous percentage of our population behind bars, and they aren't all there for committing violent felonies. For far too long, we have been operating under the "when in doubt, lock 'em up" theory of sentencing. But that theory isn't doing us any good. Our prisons are busting at the seams and costing us hundreds of millions (billions?) of dollars. Imprisonment really ought to be a last resort, not a presumption. Prison just can't be the answer to everything.

Wait for it

Of course when I was a teenager, I watched "Doogie Howser" and loved our little over-achiever. But then we kind of lost track of his portrayer, Neil Patrick Harris, for a while. He grew up and did some Broadway.

He first came back on my radar when he appeared on Celebrity Poker Showdown. He was so charming as he crushed poor Shannon Elizabeth's spirit. And he now filled out a polo shirt better than I ever thought Doogie Howser would.

Then, about 4 years ago, he came back to a half-hour show, "How I Met Your Mother". I loved this show instantly, and did my best to get everyone to watch it. I tried to sell people on it by telling them what a discovery Neil Patrick Harris was. He plays Barney as the most loveable womanizer ever. He's awful and awesome and sweet and cynical and generally the most interesting character on t.v. He made me want to re-watch "Doogie Howser" so I can see if he was this amazingly talented back then. For years now, I've been telling anyone who would listen that Neil Patrick Harris is simply the absolute best thing on television.

This is all to say that if Neil Patrick Harris does not win an Emmy tonight for his legendarily awesome performance as Barney Stinson, I'm gonna go a little Kanye on someone.

UPDATED: Emmy, [tapping foot impatiently] I'd like to have a word with you... I am NOT happy with you right now. (But thank you for the shout-out to Pushing Daisies!)

Fighting crime through health care?

There really are smarter ways to fight crime than really long prison sentences. We all remember our grandmothers telling us an ounce of prevention is worth a pound of cure. I don't know if there is any realm in which that old adage is more true than in crime policy. The best way to reduce crime rates isn't to punish crime or deter crime. The best way is to prevent people from growing up to become criminals.

The interesting headline today on Newsweek's website is "Health Care Reform Can Reduce Crime." The article highlights a program operating in 29 states that assigns nurses to monitor teenage mothers for the first two years of their children's lives. From the article, I'm not exactly sure what support the nurses provide, but I would guess it could cover things like nutrition, basic health questions, and early childhood learning. The program was designed to improve health among the participants, but as a side bonus, the children served by this program were being arrested and convicted a lot less than children who weren't part of the program. I would assume those kids were healthier, too.

Why does a program like this affect crime rates? The article doesn't get into much detail on that point, either. But we do know that things like Head Start and early education can have huge effects on long-term success. Research has also shown that female participants in team sports have lower teen pregnancy rates and higher college matriculation rates. We also know that childhood nutrition is tremendously important. Providing these kinds of supports to children who are "at risk" (is that still the accepted term?) seems like a pretty good idea, then. Isn't it in all of our best interests to prevent children from becoming criminals?

Some congressional Democrats want to take the program national but some conservative groups and leaders oppose it. Sure, 'cause we wouldn't want kids with young, poor, uneducated parents to grow up healthier, more stable, and less likely to end up in prison. (Not to mention helping those young, poor, uneducated parents achieve success as parents.) I personally think anytime we stumble upon some little program like this, that seems to help people stay away from a criminal path, we should run with it. We need to be far more creative and comprehensive in our approaches to fighting crime. And apparently we might want to begin the fight at birth.

The police want to suck your blood

The Constitution doesn't apply to DUI. Those of us in the criminal defense bar have known this for years. They can require you to submit to a Breathalyzer and subject you to consequences if you refuse. They can use that very refusal as evidence of a crime. We find flaws with the breath tests and they just rewrite the laws so the flaws don't matter. There has to be an end. They have to hit some limit. At some point, the general public has to wake up and say, "Well, wait, you can't do THAT."

I would have thought that point would be when police officers start doing blood draws themselves, just out in the field. I would have thought most people would object to that. So far, officers in Idaho and Texas are being trained as part of a federal program. If that pilot program goes well (meaning yields lots of DUI convictions), there will be a push to train officers throughout the country. So we can have police officers pulling out needles on the side of the road. Sounds hygienic. Or I guess maybe they'd at least transport suspects to the nearest station. I'm sure all those police stations will be fully stocked with all the necessary supplies to do this properly and safely once they get their 10 hours of training in. And all without a warrant, because way back in 1966, the U.S. Supreme Court somehow concluded that police could have blood drawn without a warrant. (Not that it would take more than half an hour to call the on-call prosecutor and judges to get a damn warrant.)

Can somebody, anybody, please explain to me how we got from "no unreasonable searches without a warrant" to "police can jam a needle in your arm without a warrant and take your blood?" Because those two phrases don't seem to jibe to me. We the people really need to start objecting to this stuff. Convicting a couple more drunk drivers just isn't worth desecrating the 4th Amendment.

Badly done, Serena

I have never much liked Serena Williams. I always thought she was a little too arrogant, a little too ungracious about her opponents. I've always liked Venus, but Serena has always had an ugly side. But I never really expected to see her physically threaten a line judge the way she did on match point last night. Threatening to stuff a ball down the judge's throat, waving her racket at her. It was pretty nuts. I loved when Serena joined the judge and tournament referee Bryan Earley by the chair and denied saying she would kill the judge, a spectator called out, "Yeah, you did." I would think those spectators who were sitting right behind the judge know exactly what Serena said.

I hope the WTA responds swiftly and strongly. I hope they fine Serena. I hope they default her from the women's doubles final. (Unfortunately, that would also default Venus.) And I hope they suspend her. Baseball would. I know the NBA would issue a fine and I would think a suspension would be likely. The NFL would undoubtedly issue a fine. Because no one involved in a game can physically threaten people like that.

Maybe I'm just mad at Serena for putting such a very sour note on the last weekend of my favorite tennis tournament.

So, Michele Bachmann, are you really going to slit your wrists now? I actually don't wish harm on you, but I really don't like crazed wingnuts who make hyperbolic claims only to spread fear.

Ok, now THAT's what I voted for! The conclusion to that speech was definitely what I was looking for. (Well, I would have preferred single payer, but this is way better than the status quo.)

Now, live up to it. Don't back down on the public option because reform is meaningless without it. Don't get so caught up in the hope of bipartisanship and compromise that you don't get it done. Don't let delay and scare tactics and obstructionism win. Don't let a vocal minority drown out the majority who are demanding real reform. And continue to defend liberalism and empathy as really good things.

We have failed on health care for far too long.

You can't win unless you get in the game

You've got to appreciate a guy who sees what he wants and goes after it, even at great personal risk. Like this guy. He could have sat back and let his opportunity pass him by. He could have said to himself, "That's not mine and it never will be." He could have just walked away from it, giving up on his desire as nothing but a pipe dream, as we all do hundreds of times in our lives. But he didn't. He went for what he wanted, even though it wasn't his and he had no reason to expect it should be. Say what you want about him, but it takes courage to grab for that brass ring.

And, no, I'm not talking about him taking property from this young woman by force. I'm talking about his returning two hours later to ask her out on a date. Not the brightest move, but it was bold. I salute you, sir. And I might even buy you a beer, in 3-5.

Exhibit A

Proof that capitalism kinda sucks:

Walmart's Project Impact: A Move to Crush Competition

Not content to drive thousands of mom and pop shops and 4 of the top 5 toy retailers out of business, Walmart now wants to drive, well, pretty much everyone else out of business. They're not even happy just being the biggest game in town; they want to be the only game in town. And, really, isn't that the theoretical end game of capitalism: to corner the market? Here's hoping antitrust laws kick in at some point so I don't get stuck shopping at Walmart someday.

And we'll all be in a heap of trouble if Walmart ever decides to get into the health insurance business.

The truth about capitalism

Ok, it's time we all acknowledge this fundamental truth: capitalism kinda sucks. Not all the time, not even most of the time. In the small scale, it's great that anyone with an idea, an investor, and lots of hard work can own his/her own business. It's great for encouraging innovation, rewarding hard work and initiative, etc. But pure capitalism, left unchecked, pretty much just screws people.

As James Madison wisely wrote, men are not angels. We have anti-trust laws and banking laws and the SEC for a reason. We outlaw usury. We regulate credit cards. We don't enforce contracts of adhesion. Because, when left unchecked, money and power in a capitalist system tends to congregate among an ever smaller group of people. And then those few with money and power can pretty much run roughshod over the rest of us if they want to, unless we get together as a big collective to stop them. (Well, they could just be nice out of the goodness of their hearts, but I'm not gonna hold my breath on that one.) To prevent people's baser, worst human instincts from running unchecked, we intervene here and there. So that we can protect all of us from getting suckered into padding a capitalist's profit motive.

So maybe just a little socialism here and there, like in how we manage some basic things like education, public safety, and some other general needs, isn't such a bad thing. In fact, maybe it's a good thing to protect us all. And maybe, just maybe, health care is one of those basic, vital, fundamentally important things for the public good that should be protected from the corruption of capitalist profit motives. Is that really such a radical idea?

So why'd you pick my guy, exactly?

In most cases, it's pretty clear who the suspect is. The guy beat up his girlfriend or got caught at the scene of the crime or immediately admitted to everything. In most cases, the real question isn't who was involved, but more what the exact charge should be for what really happened.

But in some cases, figuring out who should be charged with the crime isn't that easy. It's clear that a crime occurred because a woman's purse was stolen or a convenience store was robbed or there's a dead body with a gunshot wound to the back. Who did it, though, isn't all that clear. I have found in a lot of these kinds of cases that there's a leap made in the police investigation that I just can't understand.

I get that the liar, I mean snitch, when asked, swore that my guy was the culprit. But I don't have any clue why the police asked about my guy. There was nothing to link my guy to this particular crime until they asked the snitch and the smart snitch, knowing he would get a deal, said, "Sure, I'll say that's the guy." It drives me crazy, not understanding what led that police officer to tie my guy to this random crime.

In the particular case I'm mentioning here, my guy had a very solid alibi for the entire day and the only "evidence" against him was the word of two snitches who lived in the same jail pod and both hoped to benefit from testifying against my guy. For some unknown reason, the jury chose to disregard the 4 alibi witnesses and convict on the word of the two snitches. Oh, yeah, and I now know who really committed the crime. But one thing that will forever bother me about the case is wondering what led the police detective to take a picture of my guy to the snitch in the first place.

Then there are the cases where there are two or more viable suspects. We suspect that one of the two people in this apartment committed the burglary because the stolen items are found there. And both residents kind of match the general description (black man). Or the DNA of two possible suspects is found at the scene, but only one is ultimately charged with the crime based on that DNA. How do the police decide which one to charge? Sometimes it doesn't make a whole lot of sense, but just leaves me scratching my head.

The standard police or prosecution response might be, "Well, we have enough evidence to make a plausible case against your guy, so you can point out the other suspect to the jury and we'll just let the jury decide." But the problem with that is that juries put a lot of weight on the choice made by the prosecution and police. Don't tell me about the presumption of innocence because juries do not observe it. They just don't. All things being equal, I believe juries assume the police and prosecution had a reason for charging the one they did and that they got it right. So it troubles me when I encounter a case where I can't see any reason for the decision to charge the guy they charged as opposed to another viable suspect.

Public Service Announcement

They can do paternity testing on dead babies. And on the unborn fetuses of dead pregnant women. So if you kill a baby or a pregnant woman in the hopes of destroying the evidence of underage sex, you will fail. They will still get the evidence to prove the underage sex (the severity level of which will vary from state to state, but will almost always be less than premeditated murder). But now, you will also be facing a murder charge. Of the premeditated variety. In some states, if you kill the pregnant woman, you'll face two murder charges.

In other words, you will not improve your chances with the criminal justice system so it's probably best just to take your lumps for the underage sex. You can't get the death penalty for underage sex.