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!)