Where'd you get that key?

The odd story of escaped-and-recaptured death row inmate Charles Victor Thompson has taken another turn.

Citing X-rays conducted before Charles Victor Thompson left their custody, state prison authorities have concluded that the handcuff key Thompson used when he slipped out of the Harris County Jail did not come from death row as Sheriff Tommy Thomas and other county officials claimed.

The Texas Department of Criminal Justice launched an investigation after Thomas said publicly that the key was smuggled from death row in Livingston during Thompson's transfer to the local jail to await court hearings. The investigation concluded X-rays would have detected any hidden contraband on Thompson or in his personal property.

"Our investigation did not determine the key came from Polunsky or any another TDCJ unit," said prison system spokeswoman Michelle Lyons. "Thompson has been adamant with prison investigators he obtained the key from Harris County. He said he simply told Harris County he got it from death row to expedite his transfer."

Based on Thompson's statements to them, sheriff's officials maintain that the key was hidden in the inmate's toothpaste tube among the personal items he brought with him from the Polunsky Unit, where Thompson awaits execution for the 1998 slaying of his former girlfriend, Dennise Hayslip, 39, and her new boyfriend, Darren Keith Cain, 30. Thompson had been in Houston for resentencing — a Harris County jury affirmed the death penalty Oct. 28 — and was waiting to be returned to Livingston.

"At this point, the only person who knows for sure is Mr. Thompson," Lyons said. "And he has told us he did not get the key from TDCJ."

It's certainly possible that Thompson is lying, and it's also certainly possible that TDCJ did a butt-cover instead of a real investigation. All things considered, though, this incident has hardly covered Sheriff Tommy Thomas in glory. Sure is a good thing for him he's not up for reelection until 2008, isn't it?

Yates moving to state mental hospital

Andrea Yates is about to get a change of scenery, which is a result of her conviction being overturned.

Andrea Yates, the Houston mother who drowned her five children in the family's bathtub, will soon move from an East Texas prison to a state mental hospital as she awaits a new capital murder trial.

[...]

Prosecutor Joe Owmby said today that Yates will be moved to the Rusk State Hospital, less than a half-mile away from the Skyview prison, a psychiatric unit where she's been jailed for nearly three years.

[...]

The Harris County Sheriff's Department, which is responsible for transporting Yates to the hospital and to future court appearances, is awaiting court documents before transferring Yates, spokesman Lt. John Martin. He said security concerns prohibited him from saying when Yates would be moved.

Yates' attorney, George Parnham, who has worked for months to get Yates into a state mental hospital, said he visited Yates twice last week to help prepare her for the move. While he wouldn't provide details on those discussions, Parnham said Yates is scared about the transition.

"All parties agree that she was and is mentally ill, and she needs the expert assistance," Parnham said.

Owmby said his office didn't contest the plans to move Yates.

"It's not like they are transferring her to some civilian, private care facility," Owmby said. "That is not what is going on. This is a place we send prisoners."

The 275-bed hospital treats adult patients who cannot be released without a psychiatrist's approval, superintendent Ted Debbs said. The hospital currently treats about 10 patients found innocent of crimes due to insanity, he said.

"Even though we are not a prison, we are a locked facility," Debbs said.

So, um, if this is a "locked facility" where we "send prisoners" and that's all okay by the Harris County District Attorney's office, is there any reason we can't just leave her there and spare us all the cost of a new trial? Let this be, if not the last chapter in this sad story, the last chapter for a long time. Please?

SCOTUS to review insanity defense

The Supreme Court will review whether states must provide for an insanity defense in criminal cases and what their standards for evidence are. Though the suit in question originated in Arizona, it may have an effect on the Andrea Yates case, among others.

Following Texas' law, which is similar to Arizona's, a Harris County jury found Yates to be sane when she drowned her five children in a bathtub in 2001. The jury convicted her of two capital murders in the deaths of three of her children and sentenced her to life in prison.

Yates, who thought she was possessed by Satan, had a history of schizophrenia and postpartum depression and had attempted suicide twice before killing her children, according to testimony.

Her conviction in the deaths of three of the children was thrown out on appeal because of an unrelated issue. She remains in custody as prosecutors prepare to retry her.

"It speaks volumes that the court has decided to hear the (Arizona) case," said George Parnham, Yates' Houston defense attorney. "It's obviously an indicator that our judicial system is beginning to recognize the inadequacy of our laws. The reality of mental illness, particularly involving a person who is operating in a world of psychotic delusion, is beginning to be appreciated by our judges, and eventually will be by our prosecutors."

Alan Curry, a Harris County assistant district attorney who handled the Yates case on appeal, said the Supreme Court case is unlikely to have a direct impact on her case. But he said the high court could give states some guidance on what constitutes insanity and what evidence should be considered.

"I'm all in favor of discussing it and figuring out the right way to do it," Curry said.

He expressed concern that the justices could change the law and make it too broad, allowing people like Yates to go to a mental hospital instead of prison and sparing people like Angel Maturino Resendiz, Texas' serial "railroad killer," whose insanity defense was rejected.

No law and no standard will ever be perfect. It may not be possible to reliably differentiate between the Yateses and the Railroad Killers. The question is where do you choose to err.

I'll take Assistant DA Curry at his word and agree that we should have a discussion about how best to handle mentally ill defendants. If you want to get started, here's a provocative place to begin.

JP convicted of document tampering

Justice of the Peace Betty Brock Bell was convicted on Wednesday of using her dead mother's name to obtain handicapped parking placards.

During a visit to the Harris County Tax Office last year, Bell signed her late mother's name on an application seeking to renew some handicapped parking placards. Bell told the part-time clerk who processed her paperwork that the parking placards were for her mother, even though her mother had been dead for nine months, testimony revealed.

After the transaction, the clerk remembered hearing from someone that Bell's mother was deceased and notified her supervisor of the incident.

That eventually led to Bell's indictment by a Harris County grand jury.

She was later charged with aggravated perjury after she was accused of lying to the grand jury investigating the handicapped-parking application.

In closing arguments Wednesday, Bell's attorneys claimed her prosecution had an underlying motive but did not elaborate. They also said the state's witnesses did not have "clean hands."

"Hasn't she already been punished? She hasn't been on the bench since this happened," Russell told the jury.

Goode countered that no one is above the law and claimed county tax office employees were placed in an awkward situation when Bell lied to them.

Yesterday, she told the jurors this was all part of a sting effort gone wrong.

[Bell] claimed the undercover sting was designed to catch a Harris County Tax Office employee in an act of wrongdoing.

Bell's claims to the Harris County grand jury earlier this year resulted in her being charged with aggravated perjury.

[...]

Bell had appeared before the grand jury earlier this year to give her explanation of how and why she sought to renew her deceased mother's handicapped parking placards. However, she could not provide any tape recordings or evidence to support her claims of conducting an undercover sting, prosecutor Donna Goode said Thursday.

Bell also refused to sign a form that would have allowed her computer to be searched for any evidence of the undercover sting, Goode said.

In the absence of any other evidence, this has the feel of a classic "when you're in a hole, the first thing to do is stop digging" situation to me.

Bell is probably the most controversial jurist in Harris County, going back over a decade. She certainly has her supporters - I have in my inbox a PDF of a letter from the Houston Lawyers Association that pleads for her "long public service record" to be taken into account before sentencing. Can't say how much weight their words will carry, though.

The first story references an admonishment Bell got in 1994 from the State Commission on Judicial Conduct. I think this will take you to a ruling from the 8th Court of Appeals that stemmed from that case, but the site isn't responding to me now so I can't say for sure.

I don't know much about Judge Bell other than what I've read about her, and most of that isn't very flattering. The crime she's now convicted of sounds awfully tawdry to me. I can't say I'll feel sorry for her if she's removed from the bench. I know there's already people preparing to run for her seat. They may have awhile to wait:

A judge is automatically removed from office when convicted of a felony. Once Bell's judgment of conviction becomes final, her office will be vacated, said Seana Willing, executive director of the state Commission on Judicial Conduct. However, that could take weeks or months, she said.

If Bell chooses to appeal her conviction, that judgment will not take effect until she exhausts her appeals, Willing said. However, Bell won't be paid her judge's salary while she appeals her case.

Otherwise, Bell's conviction will take effect after the allotted time to appeal has lapsed, Willing said.

We'll just have to wait and see when that is.

Where's Warren?

I seem to recall that one of the reasons we so desperately needed to Double Secret Illegalize gay marriage in Texas was that if we didn't, we might someday wake up in a society of polygamists. Therefore, I trust that this report of fugitive polygamist cult leader Warren Jeffs being in Texas will bring people like Warren Chisum, Cathie Adams, and Kelly Shackleford back to their bully pulpits to bring pressure on Schleicher County Sheriff David Doran and Attorney General Greg Abbott to help find and catch him. If it's their fear that gay marriage might lead to polygamy, I shudder to think what having polygamists in our midst might lead to. Surely if one considers oneself a protector of traditional marriage, then one must realize that the likes of Warren Jeffs are exactly what it needs protection from. So any minute now, I expect to hear from them as they answer the call to once again stand up for one man and one woman. Any minute now, I just know it.

Tell me again who's in charge here

I admit that I haven't been following the story of escaped-and-recaptured death row inmate Charles Victor Thompson very closely, but I was struck with a thought as I read this front-page story on how "lack of supervision" may have led to his escape. I'll get to that thought in a second, but first, consider this:

A Harris County jailer with a long career in law enforcement and a union lawyer described an atmosphere at the jail in which detention officers routinely leave their posts before the end of their shifts — a factor Thompson may have capitalized on during his brazen escape from the facility at 1200 Baker.

The jailer, who did not want to be named for fear of retaliation, said some jailers play video games and nap while on duty. The jailer also contends that many routinely leave their posts unmanned well before their shifts are up.

"All of these things, I have personally seen," the jailer said.

A department spokesman said policy dictates that jail employees remain on duty until they are relieved, and the same rule applies to supervisors.

"I don't have any direct knowledge of people leaving early. Especially if they haven't been relieved," said Lt. John Martin, a spokesman for the Harris County Sheriff's Office, which operates the jail. "If that is the case, of course, we need to take appropriate administrative action."

[...]

Harris County's four jails are manned by deputies who are fully certified peace officers and unlicensed detention officers, the jailer said. Detention officers serve as rovers or as pod and day-room watchers. Pod watchers are assigned to control centers, or guard stations, and are responsible for monitoring dozens of prisoners at a time.

Rovers move about the jail, responding to emergencies or relieving pod watchers during breaks. Sergeants supervise the rovers and pod watchers.

Sergeants, however, report for work 30 minutes before the detention officers they oversee and leave 30 minutes sooner, the jailer said.

The veteran jailer said some rovers take advantage of the lack of supervision by leaving shortly after their bosses. The jailer suggested that such a lack of supervision, as well as a shortage of deputies around a shift change, may have contributed to the conditions that allowed Thompson to escape.

[...]

Richard Cobb, a Fraternal Order of Police lawyer, said there weren't enough deputies on duty to escort Thompson to see the attorney. He said no one was available to escort Thompson to the booth, so one deputy, on his way out for the day, offered to walk Thompson to the booth.

The jailer who spoke on condition of anonymity said rovers frequently must be reminded to lock the visitor's booth doors after escorting inmates to and from the rooms. The jailer also said pod watchers do not have keys to the interview rooms.

"So, a day-shift deputy relieves him and (the rover) just goes home," said the jailer. "And Thompson's just left in there, and the door's not locked just because nobody bothered to lock it."

After his meeting with the attorney, Thompson remained in the unlocked booth where he changed into civilian clothes and shed his handcuffs.

What I want to know is, why don't the words "Sheriff Tommy Thomas" appear anywhere in this story? Yes, I know that Thomas was recovering from eye surgery when Thompson escaped. He has admitted that "there was negligence on our part", and as this story shows, this wasn't a fluke occurrance of unrepeatable conditions. So how come he's not being asked for a comment? If he was and he delegated that task to a spokesman, why isn't that made clear? The Chron editorialists have made it clear that they hold Thomas responsible for what goes on under his watch. When will his feet be held to the fire for this?

When Thomas does get around to answering questions about this, I hope one of them is whether he thinks the unsafe and overcrowded conditions at Harris County jails was a contributing factor in Thompson's escape. Sure is a good thing for Thomas that he was up for reelection in 2004 and not 2006, wouldn't you say?

Yates trial 2.0

As it appears there will be a new trial for Andrea Yates instead of a plea bargain (for which the Chron editorialized today), this story covers the topics to keep in mind as things proceed.

Harris County prosecutor Alan Curry already has said the state will seek a new trial for Yates.

However, the criminal appeals court's decision last week means she cannot be retried on the same two capital murder charges because the jury did not recommend the death penalty.

Yates was not tried for all five of her childrens' murders, so if Harris County DA Chuck Rosenthal wants to go for the death penalty, they'll have to go with different charges.

Parnham said that a "non-death penalty" jury would be more likely to acquit Yates.

As Jeralyn has noted, there is empirical evidence to back up that assertion. More background on that can be found here.

"Quite frankly, how many respected psychiatrists are going to be taking the witness stand and testifying that this woman was not legally insane on June 20, 2001?" Parnham said. "I can't think of one. ... There is the one that testified (during the first trial), but, of course, we know that in at least one respect he didn't tell the truth."

Parnham was referring to the prosecution's star witness, Dr. Park Dietz, a forensic psychiatrist and consultant for the Law & Order television series. During his testimony, Dietz said that shortly before drowning her children, Yates had watched an episode of that show about a woman who drowned her children, claimed insanity and was found not guilty.

No such episode of the TV show ever existed.

Jurors in the first trial were informed about Dietz's false testimony before sentencing Yates, but the 1st Court of Appeals said the judge erred in not granting Yates a new trial.

The 1st Court of Appeals wrote: "Dr. Dietz was the only mental health expert who testified that appellant knew right from wrong. Therefore, his testimony was critical to establish the State's case. Although the record does not show that Dr. Dietz intentionally lied in his testimony, his false testimony undoubtedly gave greater weight to his opinion."

[...]

Parnham predicted that Dietz will testify in Yates' new trial.

Dietz was the only expert witness to testify that Yates was legally sane at the time of the killings. I have to wonder if they'd be able to find another such expert. You'd think it'd be worth it to them, since the defense ought to be able to do a good job discrediting him. We'll see, I guess.

As I said before, the defense has one major advantage it didn't have last time, and that's two subsequent cases to learn from, each of which featured attorneys who based their cases in part on what they gleaned from the first Yates trial. I'm not a betting man, but I'd say that the odds are more favorable to Yates and Parnham this time around.

Appeals court upholds new trial for Andrea Yates

Even the Texas Court of Criminal Appeals occasionally gets one right.

The Texas Court of Criminal Appeals today upheld a lower court's ruling granting a new trial to Andrea Yates, the Clear Lake-area woman convicted of drowning her children in 2001.

The Austin-based appellate court refused to hear the state's petition for discretionary review after the 1st Texas Court of Appeals ruled in January that testimony from the state's expert witness, -- about a TV episode that never existed -- may have affected the jury's judgment.

"It's good news," said Wendell Odom, one of Yates' attorneys.

Odom said he and fellow attorney George Parnham will now have to meet with prosecutors and state District Judge Belinda Hill to set a new trial date.

"There are all kinds of logistics," Odom said.

Alan Curry, an assistant Harris County district attorney who handled the appeal, was in court this morning and unavailable for comment.

Curry, however, told the Associated Press that said the case would be retried or a plea bargain would be considered. Curry said he is confident that Yates would be convicted again if there is a new trial.

He's probably right about that. The insanity defense in Texas is a very high barrier to overcome. Of course, Andrea Yates' attorneys now have the original case to learn from, which may well make a big difference in the result. And just as a reminder, on the odd chance that our District Attorney will bargain in good faith, there are alternatives to prison for people like Andrea Yates which will keep her off the streets for a long time if not forever while still allowing her serious illness to be properly treated. We'll see what happens.

Tulia arrests expunged

At long last, the final chapter in the Tulia drug bust case has been written.

More than two years after winning pardons from Gov. Rick Perry, a handful of former drug defendants walked out of the Swisher County Courthouse on Tuesday with records wiped clean of their 1999 arrests.

Visiting Judge Ron Chapman quickly expunged the records of 30 former drug defendants, an act that could not be pursued by attorneys until January's conviction of former undercover investigator Tom Coleman on a charge of perjury. Coleman was hired in 1998 to handle a sting in Tulia targeting the community's drug trade. What resulted was 47 arrests - 39 of them on black suspects.

"I anticipate that this should be the last event in this long saga," said Chapman moments after taking the bench.

[...]

Freddie Brookins, Jr, 28, posed for pictures outside the courthouse with the court documents showing the expunction of his pardoned conviction shortly after Chapman's order. On Feb. 18, 2000, Brookins was convicted on a charge of delivery of powder cocaine and sentenced to 20 years in prison.

"It's a lot better now," said Brookins. "Maybe now a lot of us can do a lot better at getting jobs."

Brookins' criminal record related to the Coleman charges disappears forever as part of the expunction.

Swisher County District Attorney Wally Hatch, who in an election defeated the sting's prosecutor, Terry McEachern, sat across from Lubbock attorney Jeff Blackburn and Washington D.C.-based attorney Jennifer Klar during the hearing, which lasted less than 10 minutes.

"The expunction was really a procedural matter to finish up the governor's pardon as far as I'm concerned," said Hatch. "I don't know that we had any grounds to oppose (the expunction)."

Klar argued for the expunctions based on Coleman being discredited, calling him a "devious and nonresponsive witness."

"The convictions were pardoned after they were substantially undermined in this court," said Klar, calling for the expunctions as an end to the process that has lasted more than seven years. "This is the last step for these folks."

[...]

For Klar, the Tulia case was her first after graduating from law school in 2002. She said having to wait through Coleman's trial was difficult but a necessary part of handling the expunctions.

"Otherwise, this whole issue would not have been able to be brought up. The evidence would not have been able to be presented," said Klar, who was present through Coleman's prosecution, often passing notes on to special prosecutor Rod Hobson, a Lubbock defense attorney.

That answers the question that I asked when Governor Perry pardoned the Tulia defendants. Coleman's perjury conviction was the last link in the chain needed to establish that these people were not just wrongfully imprisoned but actually innocent. Coleman's downfall officially obliterated the evidence that was used not just to put the Tulians in jail but to arrest them in the first place. These are no longer people with felony convictions on their criminal record, convictions that were later set aside by the process of appeals and pardons. The record now shows that those convictions never happened. Freddie Brookins and everyone like him are back to being the unblemished citizens they were in 1998. Which is as it should be.

And as long as we're talking about final chapters, Grits tells us that Nate Blakeslee, the Texas Observer reporter who first broke the Tulia story, now has a book about the case, which gets a nice review here. I'm going to need to get myself a copy of that.

Another quality committee from Governor Perry

Grits tells the sad yet predictable tale of what happens when Governor Perry convenes a panel to identify flaws in Texas' criminal justice system and suggest possible reforms "from the initial stage of investigation into a crime to appellate and post-conviction proceedings." I suppose we should all be happy that at least this committe has more than one member on it. Check it out.

McMartin student apologizes

This is fascinating. Remember the McMartin Preschool and the intense national hysteria that followed accusations that the owners and their employees spent the days molesting their young charges? It all eventually fell apart as the extremely shoddy interviewing techniques, coupled with the increasingly bizarre and hard to fathom allegations and ultimate lack of physical evidence led to recantations and vacated convictions, but not before many innocent people had their lives ruined.

Anyway, the LA Times magazine has printed an apology from one of the kids who was supposedly molested to those who were accused of the crimes. It's compelling reading, so go take a look. Thanks to Kevin Drum for the link.

Rep. Kevin Brady arrested for DUI

Speaking of US Rep. Kevin Brady, it looks like he had a bit too much fun at Homecoming Weekend.

U.S. Rep. Kevin Brady, a Republican from The Woodlands, was arrested and charged with driving under the influence Friday night in South Dakota.

Mr. Brady, 50, was pulled over by a state trooper for a problem with the taillights of his vehicle, said Clay County Sheriff Andy Howe.

Sheriff Howe said law enforcement officials were being especially vigilant about driving violations, including manning sobriety checkpoints, because it was homecoming weekend at the University of South Dakota.

"It's like the busiest night of the year here," the sheriff said.

Mr. Brady, who was born in Vermillion, S.D., is a graduate of the University of South Dakota.

The offense is a misdemeanor with a penalty up to a $1,000 fine or year in county jail or both. A typical penalty for a first offense is "generally in the neighborhood of $300 to 400," Sheriff Howe said.

He said authorities were waiting for results from a blood test to determine Mr. Brady's blood-alcohol level at the time of the arrest. In South Dakota, the legal blood-alcohol limit is .08.

Sarah Stephens, a spokesman for Mr. Brady, said the congressman was in East Texas for meetings Monday and could not be reached for comment.

As noted in my previous entry, Brady is wearing a bulletproof vest to those meetings at the request of the Texas Department of Public Safety due to a reported death threat against him. This has probably not been the best week of his life.

Sugar Land Kiddie Roundup ends in dismissals

Remember the Sugar Land Kiddie Roundup, in which a bunch of kids who were attending a parentless party at which alcohol was present but who were not drinking got busted for minor-in-possession by the overzealous SLPD? (See here and here if you need your memory refreshed.) The good news for them is that their charges have been dismissed.

With too many defendants, attorneys and court-watchers to fit in Sugar Land's municipal courtoom, the teens went to trial today in city council chambers, but after a morning of testimony, prosecutors asked that the case be dismissed because it was proving too difficult for police to indentify by face those they arrested.

[...]

Testimony got under way today with Officer Tod Cox describing how he was sent to the home to investigate a loud noise complaint.

Cox said he saw five or six young people standing outside the home and the people fled when they saw the officer approaching him.

After entering the home and seeing there were no adults present, Cox and other officers talked about what action they should take.

"We began issuing citations to everyone who was there," Cox said.

City and police officials have been defending the actions of the officers, saying teen drinking is a serious offense.

"We have all seen the tragic aftermath of underage drinking," said police chief Steve Griffith.

And here we see the tragic aftermath of lazy, overreactive policing. Maybe next time, if it's not too much trouble, you could make an effort to distinguish between lawbreaking and innocent bystanding. Might save you some embarrassment later on.

(By the way, the original story identifies Lisa Womack as the Sugar Land Police Chief. Anyone know what happened to her?)

It's the judges

Meant to post on this earlier but didn't get to it: Scott catches us up on the latest installment in the overcrowded Harris County jails story, which points a finger at the local judiciary for its role in the problem.

[T]wo new studies conclude that a major reason for the renewed crowding is a trend among the county's criminal court judges to circumvent or ignore a provision of the Alberti decision and a state law — both aimed at reducing jail populations.

In one study, requested by the judges, the Colorado-based Justice Management Institute concluded that there may be a "significant" number of low-risk defendants in the county jail simply because they are unable to post bond.

"To the extent that defendants who pose no risk of nonappearance or danger to public safety remain in pretrial detention because of inability to post bond, the county incurs significant and unnecessary cost for the operation of the jail," the institute reported.

The report also states that Harris County judges "under-utilize" Pretrial Services — an agency set up as part of the Alberti decision to gather information for the judges on criminal defendants eligible for free or low-cost bonds. The report also noted that Pretrial Services, operated by the county, is severely underfunded.

State District Judge Caprice Cosper said the study will be on the agenda this week when the judges meet for training and to discuss judicial trends.

"The dialogue we will be having is that this is a world of limited resources," Cosper said. "And we have to make certain that we all understand that, and that we maybe (should) have more communication about how we are utilizing those resources."

As this Chron editorial notes, many judges here are former prosecutors, with a pervasive tuff-on-crime attitude that has led to locking up a lot of people without much consideration of the logic or expense involved. At least they seem to be recognizing the problem now. I'm sure that will be a spirited dialogue they'll be having this week.

So why are our jails overcrowded?

Scott has a three-part answer to the question "Why are Harris County jails so overcrowded?" The main culprit is a lack of common sense in the pursuit of being perceived as "tuff on crime". Read for yourself:

Bail blunders boost bulging Harris jail population

Extra bail conditions: When tough on crime means tough on taxpayers

Should county government subsidize bail bond companies?

Harris County jail overcrowding: Worse than we thought

They just found another 600 inmates in the Harris County jails that were sleeping on the floor. Darned computer glitches.

The Texas Commission on Jail Standards had found the jail in noncompliance last June, estimating that overcrowding had left nearly 1,300 inmates sleeping on mattresses on the floor.

Actually, the number sleeping on mattresses at the time of the report was closer to 1,700 to 1,900, said Terry Julian, executive director of the Texas Commission on Jail Standards.

Julian blamed the discrepancy on a "computer error."

All right, so now we know the scope of the problem. What are we doing about it?

The Harris County Commissioners Court is expected to approve nearly $1.5 million next week for staff to open more space and ease overcrowding in the county jail, county officials told the state regulators.

Sheriff Tommy Thomas said he's asking county commissioners Tuesday for $700,000 to fund jobs for 60 new detention officers through the end of the budget year in March.

He said he's also seeking $750,000 in overtime pay between now and the end of September, although ongoing overtime needs are likely to run into the millions.

With more jailers on hand, the county will be able to open up more space for the burgeoning jail population, which a state official said is growing at a rate of 100 per month.

Doug Adkinson, deputy chief of staff for County Judge Robert Eckels, told Julian that county commissioners are expected to approve the funding.

It represents a first step in attacking the jail's overcrowding. County officials are also working on a more comprehensive long-term plan that they earlier said could cost as much as $8 million. The Commissioners Court is expected to take up longer-term solutions in mid-September.

So far, so good. Long overdue, but at least it's being taken seriously now. I'll keep an eye out for the next updates. Earlier stuff on this story is here.

Harris County Organized Crime and Narcotics Task Force shut down

Via Scott, the Harris County Organized Crime and Narcotics Task Force, which was headed up in Baytown, has been shut down. Given that their accomplishments include mistaking hibiscus plants for pot, I'd say on balance this is a good thing. And, as Scott notes, the Byrne Grant money that had been earmarked for them can now be put to use on drug treatment and probation services.

Sheriff to do something about crowded jails

Some action on the overcrowded jail front: Sheriff Tommy Thomas is going to ask for more monry to get more jailers.

More than half of the 1,300 Harris County Jail inmates sleeping on mattresses on the floor because of crowding will have bunks by early next week, Sheriff Tommy Thomas said Friday.

The remaining 550 prisoners will get beds in the coming months as the sheriff's department begins to rely on overtime and new hires to work in areas of the jail closed because of staffing shortages, Thomas said.

But improved conditions will come at a price. The sheriff's department will ask Commissioners Court at its Aug. 9 meeting for additional funds to pay overtime for jail employees.

In the coming months, the department may ask the court for as much as $8 million to hire more than 150 corrections officers, Chief Deputy Mike Smith, who oversees the jail, told the county's criminal justice committee.

I'll say it one more time: Harris County has more than enough cash reserves (PDF) to afford that.

Swelling inmate populations will plague the county, as well as the state, for years to come, Thomas said.

In the short term, the county will hire more officers and look for ways to reduce the inmate population.

The long-term solution, several officials said, may be to build more jails, including inexpensive, barracks-like facilities in outlying areas.

You want to reduce the inmate population, Scott has a good suggestion for you.

However long it took him to pay attention to the problem, I applaud Sheriff Thomas for taking action. Now make sure what you do isn't just a Band-Aid, and maybe we can avoid this sort of thing in the future.

Harris County jails get some attention

More news on the overcrowded Harris County jails.

Crowding and unsanitary conditions in the Harris County Jail have spurred a group of community leaders, clergy members and civil rights advocates to request a meeting this week with county officials to seek solutions.

"We know it's not supposed to be comfortable for people who are incarcerated, but it is supposed to be humane," Yolanda Smith, executive director of the Houston chapter of the NAACP, said Tuesday.

Smith and other community leaders expect to meet Friday with county criminal justice officials and judges to discuss ways to limit the number of people placed in jail and help probationers stay out.

Yes, well, you might want to talk to Governor Perry about that.

County Judge Robert Eckels said he is aware of the problems and will work with other officials to fix them. Public safety is paramount, he said, and the county will consider streamlining the booking process and the bonding-out system to help move people with misdemeanor arrests through the jail more quickly.

County leaders are scheduled to meet with the state commission Aug. 4 to discuss the problems.

That's all fine as far as it goes, but I doubt that "efficiency" is a sufficient solution. I believe Harris County is going to have to admit that it needs more jailers, at least enough to fully staff the whole system so that the currently idle cells can be used. The money is there, Judge Eckels, and so is the need to spend it. Don't overlook the obvious.

Terry McEachern's law license suspended

Meant to write about this earlier in the week but didn't get to it: Terry McEachern, the Swisher County DA who helped railroad the Tulia defendants, got a very light punishment from the State Bar of Texas for his sins.

An agreement signed in June but not filed until this month concluded that former district attorney Terry McEachern engaged in misconduct during his prosecution of the Tulia drug cases. The agreement suspends McEachern's license to practice law for two years, but the suspension is probated, meaning McEachern will continue to practice as long as he abides by the agreement.

Which is to say, he got off with no punishment at all. Nothing. For doing this:

The State Bar filed a civil petition against McEachern in March 2004 alleging he engaged in misconduct in the prosecution of the cases.

The petition alleged that McEachern knowingly withheld information about Coleman's background and bolstered his key witness' reputation with statements he knew to be false.

McEachern, who denied the allegations in the past, could have faced punishment ranging from censure to disbarment in September, when the case was set to go to trial. McEachern and the State Bar's disciplinary commission were able to reach an agreement, however.

"The commission, I'm sure, felt they were able to reach an adequate agreed judgment with Mr. McEachern that satisfied the needs of protecting the public," said Mark Pinckard, projects director with the bar.

According to the agreement, McEachern will have to obey all laws and rules governing attorney conduct and pay $6,225 in attorneys' fees or his probation will be revoked and the suspension will be activated.

To my mind, this is plea-bargaining a felony down to a parking ticket. I mean, isn't it a given that every attorney in the state has to "obey all laws and rules governing attorney conduct"? How can that be considered part of a sentence? Where is the acknowledgement that he willfully helped send a bunch of innocent people to jail? If this didn't cost him his license, what would have?

Rick Casey spells out what McEachern has admitted to doing, and suggests a more appropriate punishment. I'm sorry, but the State Bar dropped the ball on this one.

County jail update

Here's a good followup story to the earlier piece which described overcrowded conditions in the Harris County jails and the dangers to guards and inmates that have resulted from them. Couple of items worth noting: First, despite the fact that the powers that be have known about this crisis since 2003, they've done exactly nothing about it.

"We've been watching it and looking at it," Budget Officer Dick Raycraft said.

Indeed, rather than help deal with the problem by putting more deputies to work in the jail, county officials in recent years have been diverting officers to patrol duty, Raycraft said.

"It was a collaborative decision by the sheriff and the Commissioners Court," he said.

[...]

[Chief Deputy Mike] Smith said the Sheriff's Office is working on ways to ease the crowding. He said 450 inmates who require less supervision were moved Saturday to lower-level security housing adjacent to the two main jails. That shift will still leave 1,200 to 1,400 inmates sleeping on the floor, Smith said.

[...]

According to Raycraft, Harris County pays $12,000 a year to Charles M. Friel, a professor at Sam Houston State's College of Criminal Justice, to forecast trends in law enforcement each quarter. In a report presented to Commissioners Court in September 2003, Friel predicted that the county jail population "could rise to 8,600 by the end of July 2004, a 12-month increase of 15 percent."

Additionally, while noting that a portion of the backlog consists of prison-ready inmates and parole violators, the report by Friel also pointed to the policies of Harris County's criminal justice system as a large reason for the increase in inmates.

Specifically, he cited the growing numbers of defendants unable to post bail while awaiting trial, as well as nonviolent offenders given jail time instead of alternative sentencing.

In subsequent reports, Friel has continued to warn the county about the expanding jail population.

[...]

After commissioners received Friel's report in 2003, Raycraft said the county would reconvene its Criminal Justice Committee. Made up of representatives from Commissioners Court and each division of the county criminal justice system, the committee was created in response to a jail-crowding lawsuit that kept the county jail under a federal judge's control for 23 years, ending in 1995.

However, almost two years after Friel's report, the committee has yet to meet. Raycraft said a meeting is planned for Friday.

Clearly, the Commissioners' Court has better things on its agenda, like building an unstoppable army of toll roads.

The other item of interest is the cost to fix this.

As for the cost of resolving the problem, Raycraft estimated that if, for example, 150 new guards are needed, it would cost about $7 million.

Smith said Friday that the latest projections he has seen put the number of new jailers needed at almost 300.

Remember, Harris County has $169 million cash reserves this fiscal year, meaning it could fund those 300 extra jailers for over a decade without any new income.

This has the feel to me of a story that's still in the early stages. I'm sure there'll be more in the coming weeks.

I got those county jail conditions blues

Since Scott is off on a well-deserved blog break, I thought I ought to link to this story on conditions in the Harris County jails, since it touches on several issues he's harped on.

Noting that almost 1,300 inmates are sleeping on mattresses on the floors while large sections of the jail sit empty because of a guard shortage, the Texas Commission on Jail Standards has decertified Harris County's lockup for the second year in a row.

While the action does not mean the jail could be closed anytime soon, the commission's executive director says county officials must show they are working to remedy the problem or they may be called onto the carpet.

County officials aren't in the mood for a scolding, however.

Calling the panel "a bunch of arrogant fools," Precinct 3 County Commissioner Steve Radack said Friday that the Texas prison system helped cause the problem by failing to take inmates off the hands of Harris and other counties on schedule.

"The state wants to send a proctologist down here to see what the problem is. And the problem is, (state officials) are the ones that have stacked up the system," Radack said. "If the state of Texas got its prisoners out of our jails and kept them themselves, we wouldn't have all these problems."

But commission Executive Director Terry Julian maintains that the problem lies with Harris County.

"They need to get adequate staff in there so that they spread those inmates out," he said, noting that some inmates sleep next to toilets and there is not enough room in the dining areas for all inmates to eat at tables.

[...]

Harris County is far from alone in being cited by the commission, which oversees 265 county-level detention facilities. Currently, jails in 40 counties are listed as noncompliant, largely because of staffing and safety concerns.

Radack and others maintained, however, that the failing of the state prison system has caused the problem here and in other counties.

"The state's not taking its prisoners," said Sheriff Tommy Thomas. "And that's not just here; it's statewide."

A spokesman for the Texas Department of Criminal Justice denied that.

[...]

State Sen. John Whitmire, D-Houston, expressed concern this week about a possible return to overcrowding in state prisons and county jails.

Whitmire, chairman of the Senate Criminal Justice Committee, noted that TDCJ recently leased space for 300 inmates to deal with its expanding population. He also voiced disappointment about Gov. Rick Perry's recent veto of Whitmire's legislation that would have lowered mandatory probation terms from 10 years to five — a measure that Whitmire said would have reduced the prison population.

[...]

Of the 77,000 offenders who entered prison in fiscal 2004, 11,311 were incarcerated because of parole violations and 24,490 because of probation infractions, prison officials told lawmakers.

The bill that Whitmire refers to is HB2193. Previous coverage from Grits can be found here, here, and here. With the state prison system near 100% capacity and there being no money or desire to build more prisons, TDCJ has little choice but to rent space from county jails, which is inefficient and puts pressure on the counties themselves. Vetoing HB2193, which would have put in place some needed reforms to the probation system, denied any relief to that pressure.

There's still a question to be answered here, though, which is why in the world is there a guard shortage in Harris County?

In January, nearly 500 of the more than 8,000 inmates in the Harris County Jail system were former state prison inmates picked up for such parole violations as missing a meeting, a county jail official has said. On Friday, the system had 9,127 prisoners, records showed.

The Harris County Jail has a total capacity of 9,372 inmates in four downtown facilities. But the county has closed almost 1,600 jail beds, including two floors at its 1200 Baker Street facility, because of a staffing shortage, according to the commission report.

Thomas, the sheriff, conceded that the county doesn't have enough jailers to deal with its prisoner population.

He also acknowledged that he has not asked county commissioners for money to hire more jailers but said he now believes he must.

However, a deputies union official said jailers already are being forced to work overtime.

"We have deputies complaining that they can't get time off," said Sgt. Humberto Barrera, vice president of the Harris County Deputies Organization.

What in the world is Tommy Thomas doing letting nearly 20% of the jail capacity go unused like that? Overcrowding puts jailers in a much more dangerous position. Why hasn't he asked the County Commissioner's Court for more money to hire more jailers? Harris County has a cash reserve (PDF) of over $234 million for fiscal year 2005-06, with nearly $169 million of it unreserved. The County can afford to pay for its responsibilities, if only it's asked to do so. I have no idea what Sheriff Thomas thinks he's doing, but it doesn't look like a good job to me.

Meanwhile Friday, an American Civil Liberties Union official charged that no one is dealing seriously with Harris County's problem.

"Harris County needs to step up and address this issue," said Alison Brock, director of the Prison and Jail Accountability Project for the ACLU of Texas. "People are worried about the situation getting back into crisis mode. But you know what? It's already in crisis mode."

And when the inevitable lawsuits get filed, remember that something could have been done about it but wasn't. What a shame.

Rockets officially dump Calvin Murphy

When last we discussed this story, I thought the omens for a return to the Rockets' broadcast booth by Calvin Murphy were looking decent, but it's not to be.

Calvin Murphy, who took a leave of absence last season as the Rockets' television analyst while facing a criminal trial that ended with his acquittal, will be replaced by former Rockets Clyde Drexler and Matt Bullard on the team's broadcasts next season, the Rockets announced Thursday.

Drexler will work with play-by-play announcer Bill Worrell on home games on FSN Houston and KNWS (Channel 51), succeeding Comets coach Van Chancellor. Bullard will work for a second season as Worrell's broadcast partner on road games.

After a Hall of Fame playing career with the Rockets that began in 1970, Murphy, 57, was a part of Rockets broadcasts from 1989 through March 2004, when he took a leave of absence to deal with his legal challenges. His contract expires Sept. 30 and will not be renewed, said Tad Brown, the team's senior vice president for sales, marketing and broadcasting.

"It's unfortunate that after 35 years that this is the end, but it's all about business," Murphy said. "I had 35 great years with the Rockets, and even the bad years were good.

"I was hoping for a few more years, but I understand."

Murphy was acquitted Dec. 6 by a Harris County jury after two hours of deliberations on charges that he had molested five of his daughters. Testimony included the revelation that Murphy has 14 children by nine women.

Brown, asked if Murphy's legal problems, in the wake of his acquittal, had any impact on the decision not to renew his contract, replied, "Not at all. Change is part of this business. Players change, executives change, broadcasters change. It's the nature of sports."

Jon Heidtke, general manager of FSN Southwest and FSN Houston, which acquired the Rockets' broadcast rights last year, said the network's contract with the team calls for talent decisions to be made by the Rockets in consultation with the network. He said Murphy's legal problems "did not come up in any of our conversations" about next season's telecasts.

I'm a little surprised, but not that much. Mickey Herskowitz reminds us why we shouldn't be.

Not everyone loved his act on TV, and when Les Alexander bought the team virtually his first move was to fire Calvin. The public outcry on Murphy's behalf surprised the new owner, and he quickly rehired him.

That was in 1993. I'd forgotten about it. I'm not saying that Les Alexander jumped at the chance to dump Murphy, but I think it's fair to say that he may not have been terribly inclined to cut him a break.

Personally, I kinda liked Murph's schtick, cornball and self-aggrandizing as it was, but then I grew up on Phil Rizzuto's cornball schtick with Yankee broadcasts. As for his replacements, I've enjoyed Matt Bullard's work with the Comets, and I'll be interested to see how Clyde Drexler does. I'm sorry Calvin Murphy won't get the kind of signoff he'd have wanted, but I'm okay with how things turned out.

ATTN: Reasonable People of Good Faith

If the allegations against these folks are true, they are actually traitors. Now that we have a sterling example by which to compare other acts against, can we please shut up about innocent peace activists and Democrats who mildly-criticize President Bush being "traitors"? Furthermore, can we shut up about Karl Rove, and anyone else who may have done something extremely offensive and possibly illegal being "traitors"? We throw the dirty t-word around these days like it's going out of style.

Thank you for being reasonable and of good faith.

One question about the crime lab problems

I've scanned through the introduction to the Phase I report of the HPD Crime Lab investigaton and will try to read it all the way through soon (we're about to leave town, so don't hold me to the "soon" part) as Kevin has done, and I have a question. For all the bashing that Lee Brown and C.O. "BAMF" Bradford have taken for their role in this debacle, given that the problems cited by investigator Michael Bromwich go back as far as 1987, how much of the blame really belongs to the likes of Kathy Whitmire, Bob Lanier, Betsy Watson, and Sam Nuchia?

For example:

Moreover, and quite problematically, there has been no line supervisor over the Toxicology Section since 1992, and the line supervisor position in the DNA/Serology Section was vacant between August 1996 and December 2002, when DNA analysis at the Crime Lab was suspended.

Bob Lanier was Mayor from 1992 to 1998. Sam Nuchia was Police Chief from 1992 to 1996 (Bradford was named Chief by Lanier in November of '96).

Shockingly, the City and HPD failed to repair the roof leaks that allowed water to pour into the Crime Lab for over six years. The City and HPD were aware of problems with the roof at the 1200 Travis Street HPD headquarters building before the Crime Lab moved into the facility in 1997.

Once again, on Lanier and (partly) Nuchia's watch.

I'm not doing this to deflect blame. It's pretty clear from reading the intro that the worst problems occurred after 1997, and that puts them squarely on Brown and Bradford's shoulders. What I am saying is that those guys didn't inherit a topnotch unit to begin with, and that if there's anything to be gained by pointing a finger at people who are no longer in a position of responsibility, then we ought not to be shy about pointing it at everyone who deserves it.

More on the Sugar Land Kiddie Roundup

The Chron picks up on the Sugar Land Kiddie Roundup story that we read about last week, and the main piece of news is that Sugar Land Mayor David Wallace is on board with the "it's not okay for a minor to be at a party when alcohol is present, even if they're not drinking" school of thought.

A parent, Rene Woodring, said she is fighting the charges because her daughter was not drinking.

"The police came in. They didn't check to see which kids were drinking. They just said everybody is getting a minor in possession" citation, she said.

Woodring went to the house in the 800 block of Sugar Creek shortly after the 10:47 p.m. raid and asked police to give sobriety tests to determine who had been drinking.

"They said, 'No, everybody is getting a ticket and you just have to go to court and we will sort it out there,' " Woodring said Thursday.

Woodring and other parents are also angry because those who received citations were not allowed to take part in extracurricular activities at school.

Sugar Land Mayor David Wallace said despite the view of defense attorneys and some parents, city officials think the officers had legal cause to enter the house and issue citations.

"We take a very strong stance on minors in possession and we take a strong stance on illegal and underage drinking," he said.

Wallace said some of the teens and their parents have filed complaints against police for what they call unprofessional or abusive behavior.

"We are working those and continuing to investigate those" complaints, he said.

Just one question, David: If your son or daughter had been at this party, and swore to you afterwards that he or she had not had anything to drink, would you agree that he or she deserved to be ticketed and to lose extracurricular privileges as a result? Being proximate to a crime is not the same as committing that crime. I don't understand why that point isn't uncontroversial.

The cases come to court on June 30. I'll be very interested to see what the judge thinks.

UPDATE: Here's what Jim Thompson thinks.

This parent sees two different issues there. First, the police behaved irresponsibly by simply issuing citations to all without trying to determine who had been drinking. In this situation I would fight the ticket on the grounds that there was no evidence of guilt.

The other issue, though, would mean loss of privileges. My daughters know they are not to even hang around where alcohol is being consumed and no responsible adults are present to supervise. They know they are not to hang around where drugs are being used, period. (And if there was any doubt, Summer and Bryn, let there be no doubt now.) Breaking these rules would indeed result in loss of privileges. Period. End of story.

I agree completely. What punishment, if any, is to be handed out to the kids who were there but sober should be up to the parents, and that's because what they did might have been dumb, but it was not a crime. The police should not have gotten involved with those kids.

The Sugar Land Kiddie Roundup

There's enough grist in this story about an overzealous police raid on a parentally-unsupervised high school party to power about a half-dozen mills. What really dropped my jaw is this:

Static blares and bounces around the room of Gary Franks's first-floor law office. Franks, who represents several of the teens busted at last month's house party, stares at a black-screened monitor and listens intently.

Through a public information request, Franks obtained copies of the video and audio tapes from the night of the police raid. They are mostly useless. But he suffers through them, picking up snippets of conversation amid vast expanses of white noise.

He forwards ahead to a scene in which an officer can be heard ordering the teenagers to go home.

"I don't want anybody driving if they've been drinking," the cop says.

Franks slaps the palm of his hand on his desk. "If!" he exclaims. "If they've been drinking!"

Franks wants to know why the teens were ticketed when the officers didn't even know if they were drinking alcohol. And why, Franks asks, were teens such as Tarantino busted for possessing alcohol and then handed back their car keys and told to drive home?

Sugar Land Police Chief Lisa Womack has publicly defended her officers several times. She says that the large quantities of alcohol found in the house, and the minors' proximity to it, is sufficient evidence to issue the MIP citations.

"It's not okay for a minor to be at a party when alcohol is present, even if they're not drinking," Womack says. "Essentially, if there's enough to go around, it doesn't matter whether or not they had alcohol on their breath."

The defense attorneys dispute this reading of the law, contending that a mere presence of alcohol is not enough. They will build their cases around the meaning of "possession," which is defined in the Texas penal code as having "actual care, custody, control, or management."

"If the police chief doesn't know the law any better than that, then the officers under her must be poorly trained," says Nina Schaefer, an attorney representing one of the students.

If it's really "not okay for a minor to be at a party when alcohol is present, even if they're not drinking", then it seems to me that the police forces in Sugar Land and elsewhere need to step up their enforcement efforts. I'm willing to bet that the vast majority of backyard barbecues that took place across Texas this past Memorial Day weekend featured both beer and minor children. Should they all have been busted? Okay, maybe there's an exception for when the minor's parents are also in attendance, but surely there were plenty of cases where a kid was present without a parent in tow. Where does Chief Womack care to draw the line?

I mean, if you really want to get technical, then the Womackian interpretation of minor-in-possession laws would put every professional sporting event in Texas in jeopardy. I attended Yankee games with just my friends before I turned 18. I'm sure teenagers today go to Astro and Ranger and other games by themselves. If it's really "not okay for a minor to be at a party when alcohol is present, even if they're not drinking", then should Minute Maid Park ban anyone under the age of 21 who doesn't bring a parent or guardian along, or should they just stop selling beer?

I feel pretty confident that the defense will prevail in these cases. Until that happens, though, I think I'd want to check with the local police before cracking open a brewski in Sugar Land. I wouldn't want to put any passing teenagers in danger of getting an MIP citation while I'm taking the pause that refreshes.

Why "CSI: Houston" will never crack the primetime lineup

I've not been following the HPD crime lab scandal as closely as I should - Grits and blogHOUSTON have generally been on top of it, so you can scan their archives or those of the Chron to get up to speed. There's another story today about falisified results, this time in the controlled substances section of the lab, and it's as outrageous as the rest of it has been. Take a moment and take a look.

OK, I'd call that a bad day

I've had my share of bad days, but nothing like what happened to Lair this afternoon. Geez. Glad everything got worked out in the end, dude. I'd say the karma scales should be tipped in your favor for awhile now.

DA appeals Yates decision

I'm not surprised that the Harris County DA's office has asked the Texas Court of Criminal Appeals to overturn the lower court ruling that threw out Andrea Yates' conviction. It would have been a major shock had they not done so, especially given the friendly reception they're likely to get from the CCA. I wish there were more concern about justice and less about the scoreboard, but I can't say that such a thing is unique to Chuck Rosenthal, however little I may think of him. I certainly understand why Ginger is pissed about this, and I know I'll feel as vehemently as she does if the CCA cooks up another cockamamie rationale for excusing anything the prosecution does, but for now I'm choosing to remain optimistic. Maybe this time the system will work as advertised. Stranger things have happened.

Good news and bad news on the crime front

Grits reports that the Harris County drug task force is kaput. This is a good thing, since the main legacy of these things is the Tulia fiasco. It also allows for the money earmarked for the task forces to go to better uses such as drug courts.

Meanwhile, a bill to create regional crime labs for DNA evidence processing is dead for this session amidst finger-pointing between State Rep. Kevin Bailey (D, Houston) and HPD Chief Harold Hurtt.

Earlier in the session, Hurtt, along with the police chiefs of the five other largest cities in Texas, had endorsed the proposal.

But Bailey now says he is not sure whether Hurtt and the city were ever committed to funding the labs.

"That's how their lab problems started to begin with. They didn't want to commit sufficient funds. And to some degree, I think that still exists," Bailey said.

Hurtt acknowledges he was concerned about the issue of turnaround time, given the DPS's current six-month backlog in processing DNA evidence.

"But there was no issue about a guaranteed turnaround," Hurtt said. "We wanted to discuss the issue of turnaround time."

As for the fees, Hurtt pointed out that some smaller law enforcement agencies have their evidence processed by the DPS without charge.

"What we were concerned about was that everybody pay their share," Hurtt said.

But Bailey maintained that Hurtt was more concerned about the costs to the city.

"We were in a situation basically where the city wanted everybody else to pay for the facility," Bailey said.

"I'm not convinced at this point that the city is willing or capable of running a lab on their own," he said.

State Sen. John Whitmire, D-Houston, confirmed that the regional DNA lab bill is dead for this session.

He acknowledged that there was resistance to the legislation from some rural law enforcement agencies but said those agencies may have to find a way to contribute in the future.

"I mean, that's the breaks," said Whitmire, chairman of the Criminal Justice Committee. "They need to come on board and pay the cost of doing this."

I'm a little confused by all that, but never mind. There's a separate bill to create a Forensic Sciences Commission which will have oversight responsibilities and which will presumably recommend the creation of independent crime labs, which will put us back where we started. Maybe next time.

Yates ruling upheld for now

The 1st Texas Court of Appeals has declined to reconsider its ruling to vacate the murder convictions against Andrea Yates.

Assistant District Attorney Alan Curry said he was disappointed by the decision and plans to take the case to the Court of Criminal Appeals, Texas' highest court in criminal cases.

If that court refuses to hear the case, Yates could receive a new trial.

[...]

Curry said prosecutors will retry Yates, if necessary, to keep her in prison.

"And I would fully expect the same result as we received at the first trial," he said.

Maybe, maybe not. I'm sure they won't have Park Dietz testifying for them in a retrial, so there ought not to be any TV-inspired goofups. It continues to be my opinion that what Andrea Yates needs is long-term (possibly lifelong) psychiatric treatment, and that the Harris County DA's office is not serving the best interests of justice by their dogged pursuit of a conviction. There's got to be a plea bargain that can be worked out where Andrea Yates can be both kept off the streets and treated properly. Think about it, guys.

On the market again

I've tried and failed to come up with a snarky-but-not-tasteless way to describe this story, so I'm just going to present it without comment. I'm not sure it needs comment anyway.

Newly divorced Russell Yates said in a newspaper interview that he is ready to move on with life and might like to start another family.

Yates finalized his divorce last month from his wife, Andrea, three years after she was sentenced to life in prison for drowning their children in the bathtub of their Clear Lake home.

"We still care about each other ... (but) I couldn't live that way," Yates, 40, said in an interview in today's editions of The Dallas Morning News.

[...]

"I'm kind of in a phase where ... I'm through, I think, a lot of the healing and at a point where I'm starting to look more to the future," Russell Yates told the newspaper.

Yates, who has a new assignment with NASA as project manager for development of a sensor to detect damage on the space shuttle, talks of earning a master's degree in software engineering.

He's dating, though he declined to give details. He said he might eventually remarry and have more children.

"I have the freedom now," he said. "I'd like to do that someday and possibly have a family again. ... But I'm not 20. I'm 40. So I have to reassess where I'm at, what I have to offer."

[...]

"I've never put a lot of blame on myself," he said. "There's certainly some things I'd do differently (but) the same way I'm able to forgive others I forgive myself for things I may have missed."

Some of Andrea Yates' relatives have also placed blame on Russell Yates, holding him partly responsible for his wife's deterioration. But her brother, Patrick Kennedy, says he wishes Yates well.

"I'm a Christian, and so is Rusty," Kennedy said. "I forgive whatever shortcomings he had towards my sister, and I hope my mom does to."

Like I said, no comment. Via Ginger.

Just say No to drug task forces

Looking for a nice easy-to-understand bullet point list of reason why drug task forces are a bad idea? Grits is the place.

I got those nekkid-pictures-on-my-cellphone blues

Every day in the news there are many stories which require sober reflection, reasoned commentary, and a frank exchange of thoughtful views. This is not one of those stories.

It began as the fairly routine arrest of a drunken-driving suspect on a Houston street.

It quickly evolved into a maze of questions as investigators checked out reports that a Houston police officer had found nude photos of the driver stored in her cellular phone, downloaded them and later showed them around the courthouse.

Patrolman Christopher Green has been reassigned to desk duty pending the outcome of an internal investigation. His partner, George Miller, also has been reassigned while the department looks into reports that he called the DWI suspect's home to ask her out.

"We're sort of waiting to see what's going to happen," said Houston Police Officers' Union attorney Aaron Suder, who represents the officers.

Complicating matters is the fact that the 25-year-old woman, a native of China who is here on a student visa, speaks little English, her attorney says.

Believe it or not, it gets weirder from there. Somewhere, Paris Hilton is empathizing.

Yates divorce finalized

Rusty and Andrea Yates are officially no longer married. Ginger noted this yesterday, and I think her cynical guess as to Rusty's motivation are spot on. If so, I'm sure we'll know soon enough.

Suspect in Lefkow murders commits suicide

The good news is that the police appear to have found the person responsible for the horrible murders of Michael Lefkow and Donna Humphrey, the husband and mother of Judge Joan Lefkow. Apparently, he was a lone nutter with a grudge against a list of people, and he killed himself when pulled over for a routine traffic stop.

Investigators today said a Chicago man who shot himself in the head during a traffic stop Wednesday evening in Wisconsin had a suicide note claiming responsibility for the slayings of U.S. District Judge Joan Lefkow's husband and mother last week.

The note listed people that Bart Ross—whose last known address was in the 4500 block of North Bernard Avenue—thought had mistreated him, including judges. One source called it "basically, a hit list."

Sources also said they recovered a stocking cap and coveralls from Ross' van that could link the man to the sketch of the older of two suspicious individuals that witnesses saw near the judge's Chicago home the day of the slayings.

"It was simply a suspicious vehicle. It turned out there could be much more involved here," West Allis Police Chief Dean Puschnig said at a news conference this morning in the Milwaukee suburb.

Separately, court documents show that in a lawsuit filed in U.S. District Court, Chicago, Ross blamed doctors for a medical procedure allegedly gone awry and lawyers and the courts for failing to give him relief. Lefkow dismissed the suit last September.

The story has quite a bit of detail, and it's pretty convincing. I'm glad that Judge Lefkow and her daughters can now feel a little safer, and I'm very relieved that this was not an organized effort. Link via Orcinus.

Making restitution is for the little people

Yet another example of why the rich are just different.

A Government Accountability Office study released last week is the latest to point to problems with the Justice Department's attempts to ensure criminals pay their penalties.

The latest investigation looked at five cases that resulted in $568 million in penalties and found only about $40 million actually was paid.

Because these are ongoing cases, the report did not identify the offenders or give much detail about the cases. All were either high-ranking officials of companies or operated their own business. They pleaded guilty in each instance.

[...]

All five were wealthy, or appeared to be, before the judgments, the GAO said, but they claimed later they did not have the money to pay full restitution to their victims. Still, several continued living in million-dollar homes, and two took overseas trips while on supervised release, the report said.

Prospects are not good for additional restitution in these cases, the GAO said, in part because so much time passed between their crimes and the judgment — five to 13 years.

The report said the offenders were able to hide their assets before penalties were established, and there is not much incentive to go after them because willfully failing to pay restitution is not a crime in itself.

Emphasis mine. Can anyone explain to me why this is the case? I assume it's an oversight, since there can't possibly be a rationale for it. It's pretty galling however you slice it.

RIP, Michael Lefkow and Donna Humphrey

I heard about the awful, gruesome murders of Michael Lefkow and Donna Humphrey, husband and mother of Judge Joan Lefkow, yesterday, but wasn't really in the right frame of mind to write about it then. Judge Lefkow has been under a death threat from the terrorist Matt Hale and his followers since she ruled against them in a trademark-infringement lawsuit. She and her family had had protection from the US Marshall's office, even after Hale was put in jail for plotting her death, but it was eventually removed after the threats were deemed "not viable".

I want to quote Eric Zorn here, because I think he sums up how I feel about this very well:

We don't yet know why attorney Michael F. Lefkow 64, and Donna Grace Humphrey, 89, were shot multiple times in the family's basement. Among other possibilities, they may have been victims of a wandering sociopath, a startled or murderous home invader or a killer with a grudge against the family unrelated to Judge Lefkow's position.

What we do know is that the ability of judges and other public officials to make decisions without fearing for their lives or, worse, the lives of their loved ones is key to our way of life.

We know that fear is corrupting, corrosive, malignant, metastatic. It's toxic to freedom, the enemy of justice.

We see more than our share of mayhem in this country-random, predatory; purposeful, senseless. But what we don't see, or haven't seen in a long time, are orchestrated hits on key government, law enforcement and business officials of the sort we associate with third-world thugocracies and nations nearly paralyzed by terrorism.

[...]

Why not here? It's just not how we've done things. I'll leave further explanations and analysis to the political scientists, sociologists and psychologists.

But the status quo is fragile. That's why this story feels so terribly ominous.

Any organized, politically motivated attack on a judge or a judge's family is an attack on a core presumption that shapes our daily lives - that major decision makers operate free from the fear of organized intimidation, extortion and bloody revenge.

If that precious presumption shatters, we risk turning into one of those nations where the powerful and famous live in cocoons protected by thick walls, deadbolts, bulletproof glass and armed guards They scurry from place to place, an eye always out for killers and kidnappers.

Political courage is backed by blood and underwritten by terrible risk. Moral bravery is about more than just words.

It's too early to conclude that the presumption suffered a serious crack Monday afternoon in Judge Joan Lefkow's basement.

But it's not too early to hope that it didn't.

I've written before that my dad was a judge for 14 years in New York. In the course of that time, he collected several death threats, inlcuding at least one that was considered "viable" enough to warrant police protection for awhile. Nothing came of them other than the installation of an alarm in the house, which in turn led to more than one comedy-of-errors false alarm due to my family's innate inability to adapt to new technology in a timely manner (I seem to have gotten the recessive genes on that front). That's no surprise, since most of the losers that issues a death threat against a judge couldn't organize a trip to Denny's, let alone a contract hit. But it only takes one, and that's a realization that always nestles in the back of your mind you trade gallows humor quips with your dad about it. Let's just say that there's more than one reason why I'm glad he and my mom retired out West.

My heart goes out to Judge Joan Lefkow, her five daughters, and all the other family and friends of Michael Lefkow and Donna Humphrey. May you someday find peace and security again, and may the person or persons responsible for this vicious and heinous crime be captured and punished swiftly and severely.

One last thing I want to mention, also from Eric Zorn, is that the ruling Judge Lefkow handed down against Hale was forced upon her by an appeals court. She had ruled in his favor but her decision was overturned. Hale focused his hatred on her anyway.

Life without parole

Jeralyn notes that State Sen. Eddie Lucio has once again submitted his bill to allow for a sentence of life without parole in capital cases (it's SB60). Apparently, Governor Perry now supports this, so the third time may be the charm for Lucio's bill. The Brownsville Herald also offers its support.

Ron Mock suspended

Houston's worst defense attorney, Ron Mock, has been suspended for nearly three years by the State Bar.

The 58-year-old former bar owner was placed on probation most recently in February 2004 after state officials found that he had accepted $4,600 to handle a woman's sexual harassment claim but had not told her that he had little experience with such cases. The woman's lawsuit was dismissed after Mock failed to respond to a preliminary motion, records show.

Originally, Mock was to have served one month of active suspension in March 2004, followed by 35 months on probation. The State Bar's board of disciplinary appeals ordered the longer suspension starting in December, however, because he violated his probation terms, which included notifying clients and the courts in which he worked about the disciplinary action, state records show.

[...]

Mock handled 19 capital murder cases between 1986 and 2001, and 16 of his clients ended up on death row. More than 10 have been executed, records show.

He stopped accepting court-appointed capital murder cases in 2001, after a new state law set stricter requirements for indigent capital defense.

"I was tired of the heat, so I got out of the kitchen," Mock said in an interview last year.

Several death row inmates he represented claimed on appeal that Mock did not represent them adequately.

Most recently, Frances Newton of Harris County said Mock met with her several times but never thoroughly discussed with her the case involving the 1987 murders of her husband and two children.

Mock's infamy goes back a long way. He was Gary Graham's attorney, for example. This article describes a case I wasn't familiar with.

Anthony Westley got Mock as his attorney. Westley and an acquaintance, John Dale Henry, were charged in the 1984 robbery of a Houston bait-and-tackle shop. One of them fired the .22-caliber bullet that killed the owner. Then they fled, leaving just one witness, a clerk. Henry went on trial first. The evidence in Henry's trial, including the clerk's testimony, suggested Henry was the robber with the .22-caliber pistol, with Westley carrying a different gun. The prosecutor told jurors that all signs pointed to Henry as the victim's killer. But Henry was not sentenced to death.

Five months later, at Westley's trial, a different prosecutor gave the case a new slant, tailoring the presentation of evidence, and eliciting testimony from the clerk in a way that pointed to Westley as the robber who fired the fatal shot. Westley was sentenced to death. "I did the best I could for him," Mock recalled in an interview.

Except he did not take the basic step of attending Henry's trial or reading a transcript for a preview of the state's case against Westley. Had he done so, a judicial report later concluded, he would have been well-equipped to undermine the spin that Westley's prosecutor put on the crime. That was just one of many mistakes Mock made in the case, according to a 100-page report by a court-appointed special master, Houston lawyer Brian Wice. Wice reviewed the case in minute detail as part of Westley's appeal. He wrote that Mock's preparation for Westley trial was so lax, and his performance in court so inept, that "a breakdown of the adversarial process" occurred.

Rick Casey outlined some of Mock's other sins at the time of Frances Newton's stay of execution. He and Joe Sleeping Beauty Cannon are the poster boys for what's wrong with the death penalty.

Reforming probation

Grits brings the news of HB 575, filed by State Rep. Pat Haggerty (R, El Paso) that would bring some much needed reform to probation. You won't read about it in the papers, so head over to Grits for Breakfast and check it out.

Prosecution appeals Yates order

The Harris County DA office has appealed the order for a new trial for Andrea Yates.

In a motion filed Thursday, prosecutors say the 1st Texas Court of Appeals erred Jan. 6 when it ordered a new trial, citing an expert prosecution witness who gave erroneous testimony about a TV program.

In Yates' March 2002 murder trial, forensic psychiatrist Park Dietz told jurors that she might have patterned the killings after an episode of Law & Order, in which a mother drowned her children and was found not guilty by reason of insanity. It later was found that no such episode existed.

Prosecutors say the remark about the TV show had no bearing on Dietz's assertion that Yates was sane when she killed her five children in June 2001.

Dietz's remark "does not impact in any degree upon the jurors' determination as to whether (she) knew what she was doing was wrong at the time that she committed the offenses," prosecutors said in court papers.

[...]

Citing 23 other cases, prosecutors contend the law cited by the appeals court about false testimony requiring a new trial applies only if the testimony had a direct bearing on the defendant's guilt or innocence.

They said the testimony arguably could have helped Yates' insanity claim. "If (Yates) had watched a Law & Order episode, (her) expert witnesses clearly would have viewed that as just another ingredient to (her) increasingly psychotic thoughts," prosecutors said.

I feel that if the false testimony was enough for Sam Nuchia to order a reversal, it ought to be enough for anyone. That said, never underestimate what kind of "logic" the Court of Criminal Appeals will (eventually) bring to bear. Stay tuned.

Lisa Diaz and Park Dietz

In September of 2003, Plano housewife Lisa Diaz obeyed the voices in her head that ordered her to kill her children. She drowned her two daughters in a bathtub, then stabbed herself repeatedly in an ultimately unsuccessful suicide attempt. In August last year, she was found not guilty by reason of insanity. Read her story in the Houston Press, including how her attorneys learned from those who had defended Deanna Laney, but beware - some of the details are quite gruesome.

There's also a good sidebar story about the recent developments in the Andrea Yates case. Meanwhile, Ginger points to this Newsweek article in which Park Dietz whines and stamps his feet about how it's soooo unfair that his "honest mistake" has caused him soooo much grief. Poor baby.

One thing leads to another

Parole, probation violators add to prison overcrowding

Scarce Texas prison beds are increasingly being used by offenders who have violated a condition of their parole or probation, often for something as minor as missing a meeting or failing to pay a fee.

Parents weigh in on zero tolerance

As Texas lawmakers ponder ways to revamp the law on student discipline both to ensure fairness and keep schools safe, parents are frustrated and worried about the pervasiveness of so-called "zero tolerance" discipline.

Critics say this policy gives school districts the green light to impose strict, uniform penalties for misbehavior without considering extenuating circumstances such as the students' intent to do harm or prior disciplinary records.

Am I the only one who thinks these two problems might be connected somehow?

No room in the pen

Once again I got those overcrowdwd penitentiary blues.

Texas prisons are running out of beds more quickly than expected and may need to lease space in county jails by March. But there is no money in the prison system's budget to pay the jails.

Prison officials confirmed Tuesday that they may need to ask lawmakers for an emergency appropriation to get through fiscal 2005, which ends Aug. 30.

That sound you hear is the so-called budget surplus being kissed goodbye.

Robert Black, a spokesman for Gov. Rick Perry, said the governor asked TDCJ last year to begin identifying potential leased space and to assess whether the Legislature needs to build facilities.

"The governor was aware of this certainly last year," Black said.

Black would not say whether Perry will call for new prison capacity when he gives his State of the State speech Jan. 26.

In 2001, Perry proposed spending $95 million to construct facilities to house 1,000 inmates who need to be segregated from the general prison population and 800 "geriatric" inmates. At the time, his staff said the prison capacity would be needed by 2004-05.

Lawmakers questioned whether the beds were needed and said it was more important to raise pay for prison guards.

Sen. John Whitmire, D-Houston, objected to Perry's proposal at the time and is again questioning whether new prisons are the answer. Whitmire, chairman of the Senate Criminal Justice Committee, discussed prison crowding Tuesday with TDCJ Executive Director Brad Livingston.

Whitmire is concerned that 46 percent of the 77,000 inmates who were sent to prison during fiscal 2004 were there because their parole or probation had been revoked.

"It's just unbelievable. We almost sent as many people to prison for violating probation and parole as we did by sending them directly from court," he said.

"It sounds tough, but it's not smart because we're out of space. And we're going to spend millions of dollars that we don't have for additional capacity that we could be using for drug and alcohol treatment," Whitmire added.

We do seem to have the same approach to prison overcrowding that we do with traffic congestion, don't we? Build more, and when it all fills up again, build more. Scalability? Never heard of it.

Here's a site that has a few ideas for how to handle this problem without building more prisons. Check it out.

Reflections from Tulia

The Rev. Alan Bean files his last dispatch from the Lubbock County courtroom in which Tom Coleman was convicted of perjury. I'll say it again - if this man started a blog, I'd not only read it every day, I'd badger other people to read it until I drove them crazy. Read and enjoy. Grits also provides a one-stop archive of all things Coleman trial-related. May this sordid chapter in our history be buried, but never forgotten.

Looks like probation for Coleman

I don't think this is sufficient.

Tom Coleman was acquitted of testifying falsely in a 2003 hearing that as a sheriff's deputy he never stole gas from county pumps, but he was found guilty of saying that he didn't learn about the theft charge against him until August 1998.

Jurors deliberated his punishment for less than an hour before recommending a seven-year probated prison sentence. The judge can either follow their recommendation or come up with his own sentence. He is expected to rule Tuesday.

Aggravated perjury is a third-degree felony and carries a maximum 10-year sentence and $10,000 fine.

Coleman clamped his eyes shut and dropped his head when the judge said the sentence would be seven years. He started to fight back tears when the judge added that jurors said the prison sentence should be probated.

The Tulia defendants in the courtroom looked up when they heard seven years and shook their heads in disbelief when they heard the sentence would be probated.

John H. Read II, Coleman's defense attorney, said his client should be given probation. He said sending a former police officer to prison could be dangerous.

"He's got a problem if he's sent to prison," Read said, adding probation "is punishment enough."

But prosecutors said he deserved a harsher punishment.

I think Tom Coleman definitely deserves some jail time. Maybe it's inappropriate to shoehorn in punishments for all his other sins into the sentence for lying about when he knew there was a warrant out for his arrest, but the sentencing guidelines allow for prison time, and Lord knows, this guy has shown himself to be more than a one-time offender. I hope the judge considers this very carefully over the weekend.

You may wonder why I'm being so hardassed about this. I'll let Lauri, who addresses the conviction of naked-pyramid fan Charles Graner along with that of Coleman, speak for me here:

I think that many people who normally defend the rights of the accused found themselves siding with the prosecutors. It's because the defendants in both cases were accused of abusing their authority to deny the rights of possibly innocent people, I assume, and the evidence against both was pretty solid.

Yep. Like Lauri, I have very little sympathy for those who abuse power, in whatever fashion they do it.

More, as always, from Grits. The big news is that while Tom Coleman may get off lightly, the counties that help enable what others like him have done may not be so lucky.

Coleman convicted of perjury

Good.

The lone undercover agent in a sting that sent dozens of black people to prison on bogus drug charges in Tulia was convicted today of one of two perjury counts.

Tom Coleman was acquitted of testifying falsely in a 2003 hearing that as a sheriff's deputy he never stole gas from county pumps, but he was found guilty of saying that he didn't learn about the theft charge against him until August 1998.

Jurors were to begin hearing evidence in the penalty phase of the trial later today. Aggravated perjury is a third-degree felony and carries a maximum 10-year sentence and $10,000 fine.

Coleman had no noticeable reaction as the verdict was read, but some Tulia defendants in the courtroom bowed their heads as the verdict was read.

This report is hot off the presses, so I don't have any idea yet why Coleman was acquitted on one of the two counts. Apparently, the case took a strange turn yesterday when one of the prosecutors was called as a witness for the defense.

Dallas attorney John Nation turned out to be the biggest surprise of the day. Defense attorneys for Coleman called Nation as a witness. Attorneys questioned him about a potential conflict of interest since Nation formerly represented the state and Coleman in the 2003 writ of habeas corpus hearing for several Tulia drug defendants. That`s the hearing that Coleman is accused of perjuring himself.

In cross-examination, Nation said he removed himself from the case, "because I was convinced he was committing aggravated perjury and I had an ethical duty to stop there."

The state is expected to pick up with more testimony Friday morning and then the case will go into closing arguments.

The judge granted Nation`s motion to be removed from the case Thursday evening.

The defense called Tom Coleman`s mother to the stand early Thursday morning. She supported defense claims that her son did not steal gas because witnesses say they saw a man in a white hat. Ms. Coleman says her son only wears black cowboy hats.

I include that last bit because for all I know, it was what got Coleman off on the gas-stealing charge. Alan Bean's most recent entry goes into more detail about the defense's case. I hope he can give us one more post to explain the verdicts. The Texas Tech newspaper has some decent coverage from yesterday as well.

Finally, as Grits notes, the last chapter of the Tulia case might be the abolishment of Tulia-style narcotics task forces in Texas. If so, then something good will have come out of all this.

UPDATE: Initial coverage from Grits here and here.

Tulia update: The sheriff needs a lawyer

The prosecution has now rested in the perjury trial of disgraced former undercover cop Tom Coleman, and the first witness for his defense, Swisher County Sheriff Larry Stewart, may be in legal trouble of his own.

"We believe there are significant variations in his testimony, and it's problematic," special prosecutor Rod Hobson said.

District Judge David Gleason met privately with Stewart and announced that Lubbock attorney Chuck Lanehart had been retained to represent the sheriff. Stewart, who was on the witness stand when jurors recessed for lunch, did not return to the stand. But he is expected to return once his attorney has had time to compare Wednesday's testimony with what he has said in some of the Tulia drug trials and at a 2003 hearing about the cases.

Because of a gag order in the Coleman trial, prosecutors could not discuss their reasons for advising Gleason to appoint Stewart an attorney.

[...]

Some of the Tulia defendants and their relatives, who were sitting in the rear of the courtroom, were elated when they heard Hobson tell the judge that Stewart might need an attorney. One woman silently pumped an arm as she realized the significance of Hobson's statements. After court recessed, some former defendants talked with reporters and watched as Coleman's defense team left for the evening.

"We always felt the sheriff had something to do with it, too," said Kareem White, 28, who spent more than three years behind bars before being released.

"I still feel Tom Coleman and [former Swisher County District Attorney] Terry McEachern had more to do with this than Stewart, but they all deserve the blame."

McEachern, who was voted out of office, faces a disciplinary trial that accuses him of lying in court and concealing evidence from defense attorneys that Coleman had an arrest record.

Alan Bean, executive director of Friends of Justice, a group formed to challenge the drug convictions of the 46 defendants in Tulia, said the news about Stewart will likely divide Tulia once again.

"We have always felt that Sheriff Stewart should be held accountable for what he did in these drug investigations, and we hope there will be a full inquiry into his actions," Bean said. "... At the same time, the Tulia establishment is not going to like this one bit. They have always stood behind Sheriff Stewart, and I'm sure they will continue to stand behind him even if this goes forward."

Speaking of the Rev. Bean, he covers Sheriff Stewart's problems here and the wrapup of the prosecution's case here. Will the sheriff be indicted? Stay tuned.

Elsewhere on Grits, there's an action alert for Harris County residents.

As Tom Coleman's perjury trial continues this morning, a few Texans have an opportunity to directly help get rid of our corrupt drug task force system. ACLU is asking Harris County residents to contact their elected officials, urging them to spend federal Byrne grant funding on drug treatment and crime lab improvements instead of the county drug task force.

Click through and check it out.

Yates juror speaks out

One of the jurors for the Andrea Yates case says his decision to convict was affected by Dr. Park Dietz' testimony.

Ron Jones, juror No. 7 on the panel that decided Yates' fate, told state District Judge Belinda Hill in a letter that the controversial testimony from Dietz about a Law & Order television episode convinced him to change his mind from finding Yates to be insane to voting to convict her. The episode never aired.

[...]

Jones' comment came in a letter to Hill after the trial. Jones could not be reached for comment Wednesday.

In a letter to Hill dated April 5, 2002, Jones said he was the only juror not convinced about finding Yates guilty during jury deliberations. At one point, he said, he went to the bathroom for a few minutes to pray "and the understanding came to me."

Jones said he summarized that Yates watched the Law & Order program two weeks before her children's death. At the same time, Yates also had been taken off the antipsychotic drug Haldol.

"I figured if she watched the program, only been off of Haldol that day. Her mind should have been sane," Jones wrote in his letter. "(An) easy way out of her horrible situation, I thought. This I told everyone of why I changed my mind from insane to guilty. That was the preponderance of the evidence that sealed her guilt to me."

I believe that should pretty much close the issue, though I see that some other jurors are not happy with the appellate court.

Another juror wrote to the Houston Chronicle this week, saying Dietz's testimony played no role in determining Yates' fate.

In a letter to the editor, juror No. 5, Kenneth L. Blanchard, said he was disappointed in the appellate court's decision.

"I cannot speak for the other jury members, but I can say definitely that the inaccurate portion of Dr. Park Dietz testimony had no impact on my decision," Blanchard said. "I also recall an informal poll in the jury room prior to our release in which we were asked if the controversial portion of Dr. Dietz's testimony factored into our decision. The opinion of the other jurors appeared consistent with mine that it had no bearing."

Blanchard said despite the rhetoric about the nobleness of jury duty, the appellate court decided to set aside the jury's verdict based on a few statements made during three weeks of testimony.

"I appreciate the opinions and perspectives on both sides of this tragedy and the earnest support of those around Ms. Yates," Blanchard wrote. "Another thing we agreed on was that Andrea Yates was a sick woman. However, the question was simply did she know right from wrong at the time she drowned her children. In our opinion, the evidence independent of Dr. Dietz's misstatements overwhelmingly supported that she did know right from wrong."

Juror Robert Buxton agrees with Blanchard, saying Dietz's testimony did not influence the jury's decision. Buxton said the crime was so horrendous that Yates will "never be sane again."

"It's just another way for her to get another trial the way other people do to use the system," Buxton said. "I'd sure hate to see it."

These people are missing the point. I'm not a lawyer, so those who are lawyers are welcome to correct me on this, but I believe the standard is not whether a juror was actually influenced by the false testimony but whether a reasonable juror could have been influenced by it. Even without Ron Jones' letter to Judge Hill, it should be clear that this standard was met, and so the appellate court made its unanimous ruling. Sharon Kelleresque shenanigans aside, I don't see how the court could have reached any other decision.

Coleman pleads Not Guilty

The perjury trial of disgraced gypsy cop Tom Coleman is underway. He has pleaded "not guilty" to the charges before him.

Tom Coleman is accused of lying under oath during a March 2003 evidentiary hearing about his investigation, which led to the arrests of 46 Tulia residents, 39 of them black.

A jury of seven men and five women was seated Monday, along with one female alternate.

The trial was moved to the 72nd District Court in Lubbock County after Swisher County prosecutors asked for a change of venue.

Coleman's indictments do not directly relate to the drug cases. Rather, he is accused of lying about stealing gasoline from a Cochran County-owned pump for his personal car and about when he learned that he faced a Cochran County theft charge.

On Monday, prosecutors waived a third perjury count in the indictment.

This trial may have some high-powered witness testimony:

The prosecution's witness list includes some high-profile names, including [Governor Rick] Perry and Sen. John Cornyn, who was Texas attorney general at the time of the drug busts. Also on the list is retired state District Judge Ron Chapman, who presided over the March 2003 hearings and called Coleman "the most devious, nonresponsive law-enforcement witness this court has witnessed in 25 years on the bench."

After jury selection, the subpoena for Perry was quashed because a Travis County constable submitted the summons to a general counsel instead of the governor.

Special prosecutor Rod Hobson vowed to reissue the subpoena and threatened to hold the constable in contempt for not serving the governor.

It was believed that Cornyn, whose subpoena was issued Jan. 4, had not been served by late Monday.

According to Alan Bean of Tulia Friends of Justice, other potential witnesses include "public officials from Cochran County, every defense attorney involved in the Tulia drug trials, a laundry list of Tulia defendants, Sheriff Larry Stewart, former District Attorney Terry McEachern, Judges Ed Self and Jack Miller, [and] Lubbock attorney Charlotte Bingham". Bean has another guest post up from the trial, and I may have to drive up to Lubbock and hound him until he agrees to start his own blog. Anyone who can seamlessly use a word like "contumacious" and be in the right place to overhear a quote like the following about Tom Coleman's defense attorney is someone we should all be reading every day: "It's like Gordon Liddy and Johnnie Cochran had a baby and named him John Read." Go forth and check it out.

Why the Andrea Yates case still breaks my heart

Reading this article about how Andrea Yates is (according to her best friend) doing a little better now reminds me why after all this time I still get irrationally pissed off reading articles like this.

[O]ver time, Yates, who home-schooled her children and once agreed with Rusty to move the family into a converted bus, has expressed doubt about whether her husband always supported her.

Her friends and family have maintained he did not.

In a letter written to Bob Holmes in September 2003, Yates wrote: "Maybe sometimes I do wear rose-colored glasses regarding my husband but I have to 'wake up and smell the coffee.'

"I'll ask him what was I like when I was sick? 'Oh, like you usually are, just quieter,' " Yates wrote.

"Little Mary couldn't bear to look at me — she'd cry," the note continued. "I'd hold her outward so she didn't see my face. So heartbreaking and tragic."

After signing the letter, she asked Bob Holmes in a postscript to show Rusty compassion. "He has lost so much," she wrote.

"All the 'factors' that contributed to the tragedy are complex and it wastes energy to assign 'blame' (ultimately I was the one who did it) but Rusty and I have lost our beautiful children," she wrote.

[...]

[She] is interested in the efforts of the Yates Children Memorial Fund for Women's Mental Health Education. The fund was established by the Mental Health Association of Greater Houston. In a letter to Debbie Holmes written shortly after their Christmas weekend visit, Yates expressed a hunger for more information about a statewide symposium the association had in November.

Holmes said that over the past three years, she and her husband have tried to convince Yates that she was severely ill in the months leading up to the children's deaths. She said Yates only vaguely recalls that period and has been wrought with guilt.

"I told her, 'Your speech, your breathing, your hygiene, your walk, your talk, your approach to your kids, everything wasn't normal. There was nothing normal about you,' " Holmes said.

John would raise his hand over his eyes when he would talk to his mother, and Mary often cried in her arms, Holmes recalled.

Those memories make Yates sad to think what her children's lives were like during those months, Holmes said.

But they also have empowered Yates to think about ways she can help prevent similar tragedies for other families.

She and Yates have talked about collaborating on articles about her mental illness, and Yates would like to eventually speak out in favor of better treatment for the mentally ill, Holmes said.

Parnham said Yates has expressed the same desire to him.

"She's beginning to appreciate the fact that her situation could be possibly used as a learning tool for women across the world who suffer from the same kind of mental illnesses," he said.

"All of this is looking at the lives of those five children and realizing that they will forever be wasted unless something good can come out of what happened at 942 Beachcomber on June 20, 2001."

In my more charitable moments, I try not to demonize Rusty Yates for his role in this tragedy. It's not like he hasn't suffered as well - these were his children, too, after all. But the bottom line is that what happened at 942 Beachcomber did not have to happen. Andrea Yates was suffering from a treatable condition. She needed medication, she needed the full support of family and friends, she needed time to herself, and most of all, for the entire time that she was suffering she needed to never be left alone with her children. It's Rusty's fault that she didn't get these things, as he was her primary (and for many things, only) means of support. It was his decision to stop medicating Andrea so she could get pregnant with Mary. I'd bet it was his decision that Andrea homeschool the kids. Andrea may not have known she was falling apart, but if Debbie Holmes knew it, Rusty must have as well. He failed her, and in doing so he failed his children. However much he may have suffered for the consequences of his actions, and however much I may empathize with his suffering, that fact is inescapable. And I'm angry now just typing those words.

I'm glad that Andrea wants to make something good come out of this horror story. Whatever peace she can find she deserves. May she live to make a difference.

Elsewhere, on the legal status of things, Tom points to this overview by South Texas College of Law (that's here in Houston, btw) professor Dru Stevenson. One nit I have to pick with Prof. Stevenson is that Andrea Yates did not have postpartum depression, she had the rarer and much more malevolent condition of postpartum psychosis.

Women experiencing a psychosis are at risk of committing suicide and, in very rare cases, of harming their unborn child or infants. These women need to be hospitalized for their safety and to safeguard their infants.

This is a psychiatric emergency and the woman needs to be hospitalized immediately. Because of her confusion the woman may not have the insight to recognize how ill she is, therefore, the decision for hospitalization will be made by her physician.

But only if her husband lets her see a physician.

UPDATE: The DMN's Steve Blow boils the appeals court's ruling down to a simple question: "How much false testimony is OK?" Via Alan D. Williams.

Tom Coleman's trial begins

The perjury trial of Tom Coleman, the renegade undercover cop whose false testimony led to the wrongful conviction of dozens of citizens from Tulia, Texas, begins today. Guest blogging for the trial at Grits for Breakfast is the Rev. Alan Bean of the Tulia Friends of Justice. He's got two entries up, here and here. He's a natural at this, so I'm hoping he'll come back again. Check it out.

Dietz blames DA for screwup

The plot thickens.

The psychiatrist whose erroneous testimony led an appeals court to overturn Andrea Yates' conviction for drowning her children said Friday that he got the flawed information from Harris County prosecutors.

Park Dietz, of California, said it was "an honest mistake" when he wrongly told jurors that Yates might have been inspired by an episode of the TV series Law & Order. He described an episode about a woman who drowned her children and was found innocent by reason of insanity.

After jurors convicted Yates of capital murder, it was learned that no such episode existed. The 1st Texas Court of Appeals concluded Thursday that Dietz's testimony rendered the trial unfair.

Dietz said Friday that he had been confused because prosecutors told him there was a Law & Order episode with that plot.

"I put that in my notes and must have remembered those notes," he said in an interview on ABC's Good Morning America program.

[...]

Prosecutors have repeatedly said they did not know Dietz's testimony was incorrect until later, after Yates was convicted but before jurors decided her sentence.

Assistant District Attorney Joe Owmby, who tried Yates' capital murder case, said the discussion of the TV show was brief. Owmby told the Associated Press on Friday that, before the trial began, he asked Dietz whether such a Law & Order episode had ever aired and Dietz said he would look into it.

Dietz did not follow up on the conversation and the subject never surfaced again, Owmby said.

"So, in a way, I'm not disputing the question came up because of something we asked him," he said. "But we got no response, and it wasn't important to the development of our case.

"But I think it's a little leap to say we caused this to happen," Owmby said.

I dont know if the question of screwup ownership really matters, but I do know that it's all the more reason why the appeals court was right to throw out the conviction. The prosecution cannot profit from this kind of mistake, however it originates.

The remark about the TV show apparently can be traced back to an e-mail sent to the District Attorney's Office from a Houston-area schoolteacher shortly after Yates' arrest.

The teacher said that, just days before the slayings, she had seen a rerun of an episode from the 1980s legal drama L.A. Law, in which a woman drowned her children and was found innocent by reason of insanity.

After news reports of Yates' arrest, the teacher, who asked not to be identified, e-mailed the District Attorney's Office.

She later received a call from Owmby, said her attorney, Philip Hilder.

Owmby has previously declined to comment on the e-mail. He could not be reached for comment Friday.

I suppose someone needs to ask the obvious question here: Are we sure such an episode of L.A. Law really existed? I don't remember it, but maybe it was from the later seasons when the show really sucked. Here's an episode guide if you've got a little too much time on their hands.

Elsewhere with Park Dietz

Mac notes that despite his screwup in Houston, Park Dietz can still be a force for good.

What now for Andrea Yates?

The updated Chron story on the overturning of Andrea Yates' convictions has some info on what might come next.

The decision means that if prosecutors cannot get Yates' capital murder conviction restored through appeals, they will have to decide whether to put Yates on trial again.

"We are going to ask for a rehearing," Assistant District Attorney Alan Curry said.

[...]

Prosecutors said Thursday that they will ask the 1st Court of Appeals to reconsider its ruling. If that is unsuccessful, they expect to take the case to the Texas Court of Criminal Appeals, the state's highest court.

Prosecutors argued that Dietz's remarks about the TV program were peripheral, compared with other evidence suggesting Yates was guilty and sane at the time of the killings.

If the appeals court's ruling is upheld, the District Attorney's Office will have to decide whether to seek a new trial.

Texas law allows for a new trial if a witness gives false testimony that may have influenced the verdict, legal experts said.

The decision surprised juror Leona Baker, who said Thursday she and the other jurors discounted Dietz's testimony, saying it did not have any weight in their decision to convict Yates.

"We heard (Dietz) talk about the episode of Law & Order, but it was never made clear that she actually watched that particular episode," Baker said.

Dru Stevenson, a criminal law professor at the South Texas College of Law, said the ruling didn't surprise him, adding that the testimony was "prejudicial."

Yates' attorneys said they would represent her again if a new trial is ordered, but Stevenson said that is unlikely.

"If I was a betting man, I would bet they will reach some sort of plea bargain," he said.

Yates' husband, Rusty, who filed for divorce in July, said on CNN's Larry King Live Thursday that he believes prosecutors should not pursue the case.

"I would like to see them drop the charges against her, and I would like to see her go to a state mental hospital until she is stable," he said. "I say safe, stable medically. I'd say it would be a few years.

I'd say it would be more than a few years, and if it's the rest of her life, that's OK. She's a very ill person, and that isn't going to be resolved any time soon.

Yates' mother, Jutta Karin Kennedy reacts to the decision:

"I have mixed emotions," said Kennedy, exhausted after spending the day talking to reporters and answering calls from friends and well-wishers. "If this does any good, I'll be happy. I just don't know."

Kennedy alternated between feelings of vindication — she has said all along that Andrea was not murderous, but mentally ill — and fear of a new trial with the same outcome.

She sighed heavily, not sure if she or her 40-year-old daughter could face that ordeal.

Since Yates has been at Skyview, near Rusk in northeast Texas, her mom has visited several times a month.

"It's a good day when I can go visit," Kennedy said. The other days are harder.

Kennedy said she got the news of the conviction reversal when the anchors for NBC's Today show, Katie Couric and Matt Lauer, called about 7 a.m.

"I was speechless, shaking," she said. "The decision came out of the blue. I wasn't expecting to hear anything for four to six months."

She believes her daughter got the news an hour or two later from a Skyview warden. For now, she can only guess Yates' reaction. "I think she's been hoping for a reduction in her sentence. I just don't know."

One person I'm not feeling a lot of sympathy for is Dr. Park Dietz, whose incorrect testimony was the cause of the reversal.

"In a case like this, you ought to be very, very sure that the testimony you are giving is accurate," said Lucy Puryear, a forensic psychiatrist at Baylor College of Medicine who testified in Yates' defense. "I was incredulous that in a case where someone's life depended on it, that he could give testimony that was wrong, and so egregiously wrong it could have had an influence on the decision of the jury."

[...]

Dietz did not return phone calls for comment. In a prepared statement issued Thursday, he said he made an honest mistake in part because he had not anticipated answering questions about Law & Order.

"My spontaneous recall about particular shows is admittedly imperfect," Dietz said.

One of Puryear's Baylor colleagues, psychiatry professor Victor Scarano, said Dietz's gaffe is hard to understand given his reputation for thoroughness.

"He is usually very careful about what he does," Scarano said. "When we do our work, we usually are very scrupulous that what we have are the facts. We understand that we are going to be vulnerable to cross-examination, so we have to have our ducks in a row. How this happened, I don't know. Unfortunately, it will hurt him."

After the Yates case, Dietz was retained by Tyler prosecutors pursuing a capital murder conviction for Deanna Laney, charged with bludgeoning two of her children to death in 2003. Dietz surprised prosecutors by concluding that Laney, who said she was acting under orders from God, was "a textbook case" of insanity. Laney was found not guilty.

That shows he's not just a gun for hire, supporters say.

"Dietz is to my knowledge just as honest and ethical as he can be," said William Reid, a Texas forensic psychiatrist who, like Dietz, has served as president of the American Academy of Psychiatry and the Law. "He has felt extremely badly about his error. I've talked to him personally about it and heard him speak to others."

Reid said he did not think the mistake ultimately will affect Dietz's credibility or his popularity as a witness.

"It was an accident on his part," Reid said. "He did give an off-the-cuff answer that there had been this episode. The person who took it to the next level and said (Yates) had seen it was the prosecutor."

Finally, Hotshot Casey notes that a reporter who knew Law & Order producer Dick Wolf was in the courtroom when Dietz was testifying. She was the one who verified that he'd erred, after making a call to Wolf. I disagree with Casey's statement that the phantom L&O; episode would never have been figured out had she not been there. You can find L&O; episode guides if you look, and I think sooner or later someone would have checked into it. No question, though, that we wouldn't be where we are now without that bit of serendipity to help.

UPDATE: Missed the Chron editorial calling for a plea bargain. Via Ginger.

Yates conviction overturned

Andrea Yates' conviction has been thrown out by the Texas First Court of Appeals.

The three-member appeals court granted Yates’ motion to have her conviction reversed because the state’s expert psychiatric witness testified that Yates had patterned her actions after a Law & Order television episode that never existed. In ordering a new trial, the appellate court said the trial judge erred in not granting a mistrial once it was learned that testimony of Dr. Park Dietz was false.

Prosecutors plan to appeal the ruling, but Yates' family and attorney were jubilant this morning.

“It’s unbelievable,” defense attorney George Parnham said. “I’m stunned, unbelievably happy.”

[...]

During her 2002 trial in the Houston courtroom of State District Judge Belinda Hill, Yates’ attorneys argued she was unable to discern that difference when she filled up the family’s bathtub and drowned her children one by one, but the Harris County jury deliberated just 3-1/2 hours before convicting her of drowning three of her children. She was not tried in the deaths of her other two children.

Yates' attorneys vowed at the trial's end that they would appeal the case because of the testimony of Dietz, who told the jury he had served as a consultant on an episode of the television drama Law & Order in which a woman drowned her children in the bathtub and was judged insane. He testified the show aired shortly before Yates drowned her own children.

Prosecutors referred to Dietz's testimony in his closing arguments of the trial's guilt or innocence phase, noting that Yates regularly watched the show and that she had alluded to finding "a way out" when Dietz interviewed her in the Harris County Jail after the drownings.

But right after Yates' conviction, defense attorneys discovered no such episode was produced. As a result, both sides agreed to tell jurors who'd moved on to consider Yates' punishment that Dietz had erred in his testimony and to disregard that portion of his account.

Dietz later said he had confused the show with others and wrote a letter to prosecutors, saying, "I do not believe that watching Law & Order played any causal role in Mrs. Yates' drowning of her children."

[...]

Writing for the appeals court, Justice Sam Nuchia agreed the state hadn't knowingly used perjured testimony but expressed concern that the jury could have been prejudiced when weighing Yates' guilt.

"We conclude that there is a reasonable likelihood that Dr. Dietz's false testimony could have affected the judgment of the jury," the court ruled. "We further conclude that Dr. Dietz's false testimony affected the substantial rights of appellant."

That's exactly right. The prosecution cannot be allowed to gain from the error of its expert witness. Honest mistake it may have been, but it still damaged the defense, and in a capital murder trial especially, that's too big a burden. Calling a do-over is the only result that speaks to justice. Maybe this time around, the prosecution will agree that what Andrea Yates needs is treatment, not punishment.

Via Ginger, who sums it all up: "For once, a criminal appeal in Texas has shocked me the right way."

No jail time for a little pot

State Rep. Harold Dutton (D, Houston) has what I think is a smart proposal: Make possession of an ounce or less of marijuana a Class C misdemeanor, punishable by a fine but not prison.

Texas law currently calls for six months in jail for possession of less than two ounces of marijuana, a class B misdemeanor. Dutton's measure would maintain that designation for possession of between one and two ounces of pot, but would cut that to a class C misdemeanor, the equivalent of a traffic ticket, for possession of one ounce or less.

"We've been tough on crime for the last decade or so, and now it's time to be a little bit smart on crime," Dutton told 1200 WOAI news.

Dutton's law would not reduce punishments for possession of largest amounts of marijuana.

"People who have a joint of marijuana should not be facing a class B misdemeanor, which ties up our justice system," Dutton said.

Currently, Texas police can handcuff, book, and jail suspects for as much as a couple of seeds of marijuana on the floorboard of their car or in an ash tray in their home. This bill would enable officers simply to write the suspects a ticket and send them on their way. It would also eliminate the drivers license suspension which currently accompanies a drug possession conviction in Texas.

"the data that we have indicates that sixty to seventy percent of people arrested under current Texas drug laws have one joint or less," Dutton said. "Putting these people in jail doesn't make Texans any safer, and doesn't make any sense.

"We're not going to tie up our courts with this any longer. We'll turn it over to municipal courts and you can pay the fine and go on."

Dutton said his measure does not call for tougher penalties for people with repeated tickets for possession of one ounce of less of marijuana.

He says he wants to 'take the sting out of the law.'

"We need to be smart on Texans pocketbooks, and leave the criminal justice system to more heinous crimes. To give people 180 days in jail for having two seeds of marijuana on their floorboards seems to be a waste of the state's time and money, and a waste of the lives of the people who have to suffer that punishment," he said.

Dutton said his bill is not 'decriminalization' of marijuana, simply a more common sense approach to dealing with the problem.

I couldn't agree more. Grits notes that a similar bill by Dutton in 2003 had bipartisan support, so maybe this bill will, too.

UPDATE: Grits has a clarification on the nature of Dutton's bill from 2003.

What's missing from this story?

Here's a story about an outgoing District Attorney. Can you tell what's missing?

When Terry McEachern goes to court after Jan. 1, he´ll be gazing up from the defense table instead of the prosecution table he´s occupied for nearly 20 years as district attorney for Hale and Swisher counties.

After losing his bid for re-election in November, the 54-year-old career prosecutor and former college football player has been setting up shop in the Skaggs Building, where he´ll focus on family, personal injury and criminal law.

“The juries I´ve worked with have been absolutely fantastic and I´m looking forward to seeing jurors again - this time from the defense side of things,” said McEachern, who grew up on a Swisher County farm and who has garnered a 90 percent conviction rate as prosecutor - three points over the state average.

[...]

Among the things he´s “proud of” during his 19-year tenure as DA, McEachern cited:

•Establishment of the SANE program for sexual assault victims.

•Setting up the second accident reconstruction program in the state, which led to a stiff sentence for a drunk driver in a multi-fatality accident near 24th and Joliet several years ago.

•Serving as a board member for the Texas DA & County Attorney Association.

•Receiving the Department of Public Safety´s Director´s Award in 1995 - the highest civilian honor accorded by the DPS.

•And establishment of the first victim´s assistance program in Hale County.

“But what´s given me the most satisfaction,” he said, “has been seeing some of the people who worked for me rise to positions of higher authority.”

Give up? Terry McEachern was the prosecutor in the Tulia drug bust cases. You know, the ones that featured the lying undercover cop Tom Coleman, for which a specially appointed judge threw out all of the convictions based on Coleman's utter lack of credibility as a witness? Those cases. I can't imagine McEachern would have considered that a highlight of his career, but you'd think his professional obituary would have at least touched on it.

Lauri from Tres Chicas (who has some prior experience with former DA McEachern) caught this, and she has a coda to add. I found her post at Grits for Breakfast.

Feigen on Murphy

The Chron's Jonathan Feigen comes out in favor of Calvin Murphy returning to the broadcast booth next year.

For the Rockets to bring Murphy back will be a tough, perhaps even courageous move. But the jury said he was not guilty. And if anyone can shine past the charges, if anyone's strength of personality and style and exuberance can lead viewers past the scandal and back to the show, it is Murphy.

[...]

There will be others who will struggle to leave the story behind. Some never will. But by bringing Murphy back, the Rockets will not be selling out for a few wins.

They would not be endorsing his lifestyle. They would be standing by a guy — found not guilty — that has been part of the family for more than 30 years.

We punish the guilty, not the accused. To take the Rockets away from Murphy would be stabbing him not in the back but in the heart.

The Rockets can understandably struggle with the decision. But after that, they need to bring him back and plug him in.

If you're into reading tea leaves, this bodes well for Murphy. Me, I'm officially neutral on the question. I'm OK with it if the Rockets bring him back, and I'm OK with it if they don't. And I don't envy them the decision one little bit.

Yates appeal starts

Lawyers for Andrea Yates are arguing before an appeals court that false testimony from a prosecution witness tainted her case and helped wrongfully convict her.

During the trial, [Dr. Park] Dietz, a California psychiatrist and prosecution witness, told defense attorney George Parnham under cross-examination about having consulted on a Law & Order episode in which a woman with postpartum depression drowned her children in a bathtub.

Dietz testified the program in question aired shortly before Yates drowned her children. Yates had told others that she frequently watched the program with her husband, Rusty.

"It could have made a difference. It was the only piece of evidence that gave her a firm, rational plan," McKinney said.

Unfortunately, that episode of Law & Order never existed. The jurors did not learn of this error until the punishment phase of the trial. More background here.

The prosecution maintains that Dietz' testimony about the mythical L&O; episode was a small part of their overall case and they would have gotten the conviction anyway even without it. Maybe so, but it's my opinion that Andrea Yates' defense was hurt by this. It's impossible to play the what-if game, but I don't think the state should be aided by a lie, even if it was an unintentional lie. I believe the right course of action is to order a new trial. I don't have a lot of faith that the 1st Court of Appeals will see it that way, but one can hope.

Murphy fallout

Despite his lightning-quick acquittal, the consensus remains that Calvin Murphy is finished as a public figure.

"We remain committed to re-evaluating his situation at the end of the season regarding his future with the organization and that of the broadcast team," said Tad Brown, Rockets senior vice president of marketing and sales, in a statement issued by the club.

Yet doubt remains in the minds of many.

"I can't see how he can come back to be on TV, to be a public face of the team," said one league executive not with the Rockets.

"No way. Not at all," said another.

[...]

"The Rockets could not put him back in that role even if they wanted to," said [Elvin] Hayes. "That life is over for him. ... It's possible in all of us to say, `I forgive.' But you can't erase the human mind."

The statement from the jurors is favorable but not unequivocal for him.

Three jurors initially wanted to convict Murphy of some of the six counts based on testimony from a single daughter who they thought was more credible than the other four, juror Richard Shields said.

After discussing inconsistencies in her testimony, however, the jurors agreed there was reasonable doubt about the truth of her statements.

"We had to go on (District Judge Michael) McSpadden telling us not to convict if we had a reasonable doubt," said Shields, 48, one of the jurors who initially wanted to convict.

Ellen Burg Holloway, 47, also thought one daughter was more believable than others, but said some of that daughter's testimony was contradicted by her mother's statements.

I don't think that's a strong enough statement of Murphy's innocence to help him. I thought the fast verdict might have indicated that the jurors didn't just find doubt but actively disbelieved that Murphy was guilty, but that apparently isn't the case. Hotshot Casey has no sympathy for Murphy, that's for sure.

I've gone back and forth on the conventional wisdom here, so take my thoughts with the usual grain of salt. Calvin Murphy could come back, but right now it's not looking good for him. I've no doubt the Rockets will keep an ear to the ground (was there any reporting of the reception Murphy got at last night's Rockets game on the TV news?), and for what it's worth, there's a SurveyUSA poll commissioned by KPRC which says 68% of Houstonians agreed with the not-guilty verdict. I'd put odds on the Rockets quietly parting ways with Murphy after the season is over, but you just never know.

UPDATE: Here we go: Murphy gets warm reception at Rockets game.

"Glad to have you back," said one fan as Murphy signed an autograph.

"Get your job back next year, man," said another.

That seemed to be the general consensus as Calvin, dressed in a bright purple suit, waved and blew kisses to the crowd.

"Calvin's probably the best color commentator in the game," said Jason Gound, a Rockets fan. "My wife watches Rocket games mainly because of Calvin and just the personality he brings to the game."

"He's been here for years, I mean everybody loves him," said Sanyika Scott, another fan. "That was just, that was just the past, you know
what I'm saying. It's over now and we can put that behind us."

Just another data point to consider.

Your tax dollars at work

Apply for federal money to pay for an undercover narcotics task force, then when the officer you've hired to rid your county of drugs turns out to be dirty and blows a hole in your budget with the mess he's created, apply for more of the same money to prosecute him for his sins. That's what's going on in Swisher County, home of Tom Coleman and the Tulia drug bust. Scott has the details.

Calvin Murphy acquitted

Wow, that was fast.

Hall of Fame basketball player Calvin Murphy was found not guilty today of charges he molested five of his daughters.

Jurors deliberated just two hours before clearing Murphy on all six counts.

I wasn't even sure that final arguments were going to finish up today, To acquit on all counts in two hours, there must have been some near-unanimousness going into the jury room. I thought it looked better for the prosecution than that.

KHOU, in its report at 6, noted that Murphy will remain on leave from his Rockets' broadcasting gig until after the season, at which point the team will review the situation (read: hold their finger in the air). Conventional wisdom, which I've generally agreed with, is that he's finished. Now I'm less sure. Marv Albert came back from his sex assault case, and he pled it out. Murphy was accused of a more heinous crime, but he got that fast-track acquittal, and I'll bet there will be juror quotes soon about how they just didn't believe the accusers' stories. He may yet commentate again. Stranger things have happened, that's for certain.

Murphy briefly takes the stand

Calvin Murphy testified in his own defense yesterday, but not for long.

Reading verbatim from court documents, defense attorney Rusty Hardin asked Murphy whether he "intentionally and knowingly engaged in sexual contact" with his daughters "by touching the genitals ... with the intent to arouse or gratify your sexual desire."

"Absolutely not," the 56-year-old former TV commentator said, biting his upper lip and appearing to fight back tears. "No, I did not."

Murphy repeated his denial after Hardin read each of the six indictments. Then Hardin ended the testimony abruptly.

"They can have you now. Pass the witness," he said.

The star witness' direct testimony, lasting less than five minutes, came in stark contrast to the rest of the four-week trial, in which minute details of Murphy's family life have been described and debated.

[...]

Prosecutors Lance Long and Paula Storts appeared surprised when state District Judge Michael McSpadden told them to begin their cross-examination just moments after Murphy got on the witness stand.

Long paused for a moment and shuffled papers before beginning to ask Murphy about his unusual family tree, which includes 14 children by nine women.

[...]

After about one hour and 15 minutes, Long ended his cross-examination, making Murphy one of the trial's briefest witnesses.

Curious strategy by Rusty Hardin. I guess their intent is to imply that there's nothing there for Murphy to deny. I suppose the brief cross-examination could also be taken as evidence that the prosecution feels its case speaks pretty well for itself, too. I confess, before this trial I never thought there was much chance of a conviction, but now I'm not so sure. Looks like the jury will get this sometime next week, so we'll know soon enough.

Legal costs for indigent defendants rise

With the passage of the Fair Defense Act in 2001, this should be no surprise.

The cost of providing lawyers for poor defendants in Harris County has risen about 80 percent since the Legislature set new criminal defense standards in 2001.

[...]

For the 12 months ending Sept. 30, indigent defense costs in local felony, misdemeanor and juvenile courts neared $20 million, compared with $11 million three years ago.

[...]

The number of indigent cases in Dallas is falling, but in Harris County it has shot up 75 percent in the past two years, from 42,667 to 74,879. The number of defendants who are indigent rose from 38 percent to 61 percent.

Troy McKinney, who was president of the Harris County Criminal Lawyers Association when the act was implemented, said one reason for the latter increase is that judges are setting higher bonds, causing people to remain in jail longer.

"Five years ago a first-degree felony might have a $20,000 bond," McKinney said. "Today, it may have a bond of $50,000. So the odds of remaining in custody are greater." Defendants in jail "get an appointed lawyer almost automatically."

Yet another cost of Git Tuff On Crime. Maybe a wee bit more judgment here would be helpful, you know?

The question of court-appointed defense attorneys versus a public defender ysstem is something I'd like to see studied in more detail. My opinion is that for a county as big as Harris, a public defender system would make more fiscal sense, but that's just my opinion. I'd like to see someone delve into the data and come up with some decent facts before I commit on that. I'd also like to hear Scott's opinion when his holiday hiatus is over.

Harris County grand juries

As long as we're talking about a judicial system that's bending way over to be nice and accomodating to prosecutors, check out this article from Sunday's Chron regarding the grand jury system in Harris County. Here's the crux of the issue, all tied up in a bow:

A 1940 ruling by the U.S. Supreme Court requires that grand juries— the panels of citizens that decide whether criminal suspects will be indicted — represent "a broad cross-section" of the community.

But 64 years later, law enforcement officers and others with courthouse jobs that make them less likely to sympathize with a defendant are a strong presence on Harris County grand juries. And even though Hispanics make up a third of the county's population, only 9 percent of grand jurors are Hispanic, and most of those jurors are nonvoting alternates.

[...]

The narrow variety of grand jurors came to light in a University of Houston-Downtown study conducted by criminal justice instructor Larry Karson, who reviewed 32 Harris County grand juries impaneled in 2002 and 2003, with further reporting by the Houston Chronicle.

Part of the problem is due to the selection process. Of Texas' five largest counties, only Harris, Travis and Tarrant still choose grand jurors exclusively through commissioners selected by the presiding judge, who often end up being his colleagues or employees, who then turn to their colleagues.

Of the 129 Harris County grand jury commissioners selected in 2002 and 2003, 65 — just more than 50 percent — were in some way linked to the area's legal establishment. The study identified those individuals as judges, attorneys, court employees, bail-bond agents, probation officers and law enforcement officers. One judge even selected three of his court employees as grand jury commissioners.

[...]

"My grand juries, as a rule, have been very diverse, and I work very hard to find people who will serve from different neighborhoods and different socioeconomic backgrounds," said state District Judge Kent Ellis. "I think focusing on the commissioners is the wrong place to look."

A look at Ellis' grand jury commissioner selections, however, reveals that he didn't search very far to find them. In August 2002, Ellis chose two court reporters and an employee of the Harris County District Clerk's Office. One year later, Ellis used two of the same three people as commissioners.

State District Judge Bill Harmon didn't look that far. In November 2002, Harmon chose three employees of his court to serve as grand jury commissioners. He declined to discuss those selections with the Chronicle.

Remember all those comments about how prosecutors could indict a ham sandwich if they wanted to? This is a big part of the reason for that.

Hotshot Casey gives his perspective on being a grand juror as well. Casey notes that some people do escape without being indicted:

Unlike the grand juries reporter Steve McVicker describes in Harris County, ours included nobody from law enforcement. Two, including the foreman selected by the judge, were lawyers whose practices included criminal defense.

Several owned small businesses. A couple were retired civil service workers. Several were spouses of attorneys. The panel was well-balanced ethnically and geographically.

But for nearly all the cases we considered, it wouldn't have mattered if we were all hooded hangmen. We became human rubber stamps.

[...]

On the typical three-hour morning, we dealt with 30 to 40 cases. A suspect was stopped for driving erratically. The officer asked if he had any drugs. He said yes, they're under the seat.

The ex-boyfriend broke down the door and knifed the victim.

The woman was seen stuffing clothing under her jacket and was arrested after she walked to the parking lot.

That's all we would hear: a prosecutor's summary of police reports. Any unopposed lawyer who couldn't tell the story in such a way that you would indict wasn't trying.

On some cases, we would ask questions. Then, toward the end of the morning, the prosecutors and bailiffs would leave the room. One by one the foreman would recap a case, and we would vote to indict.

Toward the end of the first day's list, there was one that seemed questionable. I jokingly suggested that as a matter of human pride we should try to "no bill" (vote not to indict) one case a week.

After that, a fellow panel member would occasionally describe a case as a candidate for the "Rick Casey Award."

We no-billed 12 cases in 11 weeks, 4 percent of those presented. But prosecutors wanted us to no-bill more than half of these. They were cases with some political sensitivity where the district attorney felt the need to be able to blame the decision on the grand jury.

So we were, I confess, one almost mindless step in the conveyer belt of criminal law.

Speculation about why some high-profile defendants get indicted and others don't is nothing new. This is just more wood for the fire.

What to do about the CCA

Scott points to this Texas Monthly article about the state's Court of Criminal Appeals and its head hack, Sharon Keller. They lead off with a discussion of the infamous Roy Criner case, which thrust Judge Keller into the national spotlight.

IT WAS, BY ALL ACCOUNTS, the high court’s low point. A teenage girl named Deanna Ogg had been raped, bludgeoned, and stabbed to death on a late September afternoon in 1986 near the tiny town of New Caney, north of Houston. Roy Criner, a 21-year-old logger, was arrested after three friends said that, within hours of the time of Ogg’s death, Criner had bragged about picking up a hitchhiker, threatening her with a screwdriver, and forcing her to have sex. No other evidence tied him to the crime, but Criner was convicted and given 99 years for aggravated sexual assault. In 1997 newly available DNA tests showed that the sperm found in Ogg was not Criner’s. To be certain, the Montgomery County district attorney did a second test in the state’s lab and got the same results. Criner’s attorneys moved for a new trial, and in January 1998 the trial court agreed he deserved it.

Four months later, the Texas Court of Criminal Appeals, the highest criminal court in the state, went against law, science, and, it seemed, all common sense when it wrote, “The new evidence does not establish innocence,” and overruled the trial court. Sharon Keller, who had been on the CCA only a little more than three years but was rapidly becoming the court’s philosophical leader, cited the incriminating statements to the three friends as “overwhelming, direct evidence” of Criner’s guilt. New evidence ofinnocence, she argued, had to be so clear and convincing that no reasonable jury would have convicted Criner had it known about it. DNA, she said, was not enough. Keller noted that perhaps Criner had worn a condom or failed to ejaculate. There was also testimony, she wrote, that the victim had said that she “loved sex,” so perhaps she had had sex with someone and then met her demise at the hands of the logger. These theories had not been alleged at trial, nor was there evidence that Ogg had had sex with anyone else within 48 hours of her death, and court watchers wondered why an appellate judge was posing alternate theories that the prosecutor could have offered years before at trial. It seemed that Keller and the court really wanted to keep Criner in prison.

In 2000 the PBS show Frontline aired an episode called “The Case for Innocence,” featuring Criner’s story. Keller was interviewed, and she defended the CCA’s opinion and characterized the victim as “a promiscuous girl.” When asked about the possibility that Criner was innocent, Keller said, “I suppose that that is a possibility. But he certainly hasn’t established it.” When asked how a person could establish it, Keller replied, “I don’t know. I don’t know.” She appeared to be lost in her own circular reasoning. All Criner was asking for was a new trial, but that, said Keller, was out of the question. It was the last in-depth interview she would give to the media.

Later that year more DNA tests were done, this time on saliva from a cigarette butt found at the crime scene. The DNA matched that of the sperm, and a month later the DA and the county sheriff joined the trial judge in calling for a pardon for Criner. The state Board of Pardons and Paroles, which almost always denies such requests, voted 18–0 to grant one, and in August Governor George W. Bush, in the heat of a presidential campaign, relented. Roy Criner was freed.

[...]

AN OLD FRIEND OF SHARON KELLER’S remembers hearing about Keller’s comments on Frontline and being dumbfounded: “I didn’t know where that absolute moral conviction came from. She didn’t question herself at all.” The friend reminisced about their youth in the early seventies and said, “She didn’t do anything wilder than anyone else. But I don’t know how she sleeps at night.”

Keep all that in mind the next time you hear someone talk about "moral values".

Scott suggests that the three CCA judges who are up for reelection in 2006, including Keller, are "the weakest statewide Republican targets available to Democats". I don't know if that's necessarily true, and unfortunately the CCA races are about as low profile as any statewide election can be, but there's no question in my mind that the Democrats owe it to us to find some strong candidates for them. Read the article, and you'll see there's no shortage of material with which to attack the integrity and, well, the values of the incumbent judges. I can't say that any of these offices will be easier targets than, say, the Governor's mansion, but they sure as heck are worthy ones.

Calvin Murphy trial begins

We needed another high profile trial in Houston now that the first Enron case has ended, and so just in time the trial of Calvin Murphy has begun.

Calvin Murphy's extensive family tree -- including 14 children he fathered with nine women -- came under close scrutiny today as the beloved local basketball hero went on trial, accused of molesting five daughters more than a decade ago.

Murphy, a 56-year-old retired Houston Rockets player and former TV commentator, sat silently as prosecutors told jurors that he sexually abused the girls between 1988 and 1991, when they ranged in age from 6 to 13.

"These were children who were on the receiving end of their father's divide-and-conquer ploy," Assistant District Attorney Lance Long told jurors in his opening statement.

Murphy is charged with three counts each of indecency with a child and aggravated sexual assault. If convicted, he could face a sentence ranging from probation to life in prison.

His attorneys said the allegations stem from a dispute about money and long-standing tension between the children Murphy had with his ex-wife, Vernetta Murphy, and those born to other women, who were pressured to keep their father's identity a secret.

"This case is not just about money .... This case is about resentment," said defense attorney Andy Drumheller. "This case is about jealousy. This case is about hatred. This case is about revenge on a father who did a disservice to his children by having such an unusual family tree."

[...]

Defense attorney Brian Wice, who is not involved in the case but was one of several lawyers observing the trial, said five separate complaints will make it hard for jurors to reject them all as fabrications.

"What bothers me, from a defense standpoint, is the sheer number of complaints," Wice said. "And there is no nexus between the children. It's not like they all grew up together and were sitting around talking about what Calvin may have done to them."

Maybe so. Personally, I think it will be difficult to get a conviction, and not because of Murphy's fame. This is a classic he-said/she-said case, and while there are multiple complainants against Murphy, the rest of his children are apparently firmly in his corner, and I'd expect them to be key defense witnesses to discredit the prosecution testimony. This is just my opinion, of course. We'll see what happens.

The next Tulia?

I meant to note this before, but got caught up in the elections frenzy and never got around to it. Last month, an anti-drug task force arrested 72 people in Palestine, Texas on various drug-related counts. Note what the now-offline news report says at the end:

If convicted, many of the defendants could face a maximum sentence of life in prison. Other federal defendants face between 40 and 300 years.

Apparently, the justification for that is that all 72 were involved in "distribution". Given that by this calculation of the likely size of the crack market in rural Palestine, those 72 distributors would make up nearly half the entire user base, I think there may be a little stretching going on.

Why am I bringing up a comparison to Tulia here? Well, for one thing, all 72 of the people arrested are black. According to Census figures from 2000, 23.5% of the residents of Anderson County are black. What are the odds that 100% of Anderson County's crack-using and -distributing community are black?

Dave Mann of the Texas Observer asks the same question, and notes how this sort of task-force drug bust works:

All over Texas, federally funded drug task forces, with little oversight from state officials, have employed the same strategy. The task force targets a minority community and sends in an undercover officer or confidential informant armed with public funds to buy drugs. Over the course of a long investigation, the undercover officer befriends a group of addicts. Eventually, the undercover cop asks his addict friends to get drugs for him. When an addict goes to his or her dealer and scores a small amount of drugs for the cop, he or she has stepped into a felony charge of delivery of a controlled substance and, because of harsh sentencing guidelines, could face decades in jail.

[...]

Nearly all of the 56 defendants in state court are charged with delivering less than four grams of crack, according to the county indictments. At least 14 of them have no prior felony convictions, and eight more have had a clean record for at least 10 years. For instance, 43-year-old Ira Mae Gross, who has a clean record in Anderson County, is charged with just one count of delivering between one and four grams of crack to Kimbrew last June, according to her indictment. She now faces a second-degree felony drug dealing charge that could earn her a prison sentence of two to 20 years.

Many other suspects are seemingly longtime addicts. Henry Rhodes, Sr., 56, was convicted of possession of less than four grams of crack in 1995. He has no history of selling drugs, though. He was indicted on three counts of delivering crack to [task force confidential informant Othella] Kimbrew. Then there’s Charles E. Barrett, 45, who has a lone drug possession conviction from 1977. He too is facing one count of felony drug dealing for allegedly delivering less than a gram of crack to Kimbrew on June 22, 2004.

That's certainly being tuff-on-crime. Whether it makes sense or not to send people like Ira Mae Gross to jail for up to 20 years is something I'll leave up to you.

Scott Henson, from whom I got most of this info, has been following this case closely. Check his blog for future updates.

UPDATE: For some reason, that Texas Observer link is broken. It worked earlier today, when I read the article and copied the bits that I quoted. Not sure what happened, but I'll try to find out.

Winning the war on drugs

Scott explains why he's representing a Republican client for the first time in his professional life.

Yesterday, I drove to the Metroplex for a well-attended town hall meeting held by the League of United Latin American Citizens, in Grand Prairie, halfway between Dallas and Fort Worth. There I listened to Ray Allen, the Republican chairman of the Texas House Corrections committee -- which oversees the Texas prison system -- refer to the Drug War with comments like, "Let's put people that we are afraid of in jail, not the ones that we are only mad at."

A life-long pro-life and gun-rights activist, Chairman Allen endorsed with few qualifications the findings of fine, recent study by LULAC, which lays out the case against overincarceation based on pragmatic realism, compassion and human rights. Allen called for increasing the parole-release rate, even after his opponent had called for lowering it, hoping to run to his right as tougher on crime.

My friends Ana Correa of LULAC and ACLU's Ann del Llano opened the event tag-teaming to describe eight "myths" about the criminal justice system -- a critique that basically calls for substantially reducing sentences for non-violent crimes and overhauling the probation and parole systems. The crowd issued audible gasps and cries of "no way" when Ann revealed that Texas has identified 1,941 separate acts we've labeled as felonies, including 'electrocuting fish,' and in some cases, prostitution, graffiti, and stealing cable. One in 11 Texans is a felon, and one in 20 is currently in prison, on probation, or on parole. The Fort Worth Startlegram coverage said the audience appeared "stunned" by the statistics. They were almost equally stunned when their Republican state representative stood up and told the crowd, to closely paraphrase, since I didn't take notes, 'everything these extraordinary women just told you was true.'

Allen said the agenda ACLU and LULAC were proposing had historically been considered "liberal," but that the groups brought him only the best of facts and analysis. He'd come to be convinced of the positions in the report because of his conservative principles, he said, not in spite of them. The cost to the state, the harm to inmates' future prospects and their families, and evidence that incarceration doesn't stop recidivism, but other methods do, were the main reasons he cited.

This isn't just a man bites dog story, Chairman Allen in 2003 actually proposed a bill lowering the lowest level drug possession crimes to a misdemeanor. In the waning days of the session, a nationally touted compromise bill passed that kept the charge at a felony, but required judges to sentence defendants to probation and treatment instead of incarceration on the first offense, a provision that affected 4,000 people this year. Allen told Governing magazine he was able to do it for the same reasons Nixon could go to China -- his hard right positions on other issues make him immune to attacks as soft.

As a matter of full disclosure, I worked on Chairman Allen's re-election campaign professionally this cycle -- my first Republican client ever in more than 60 campaigns -- and I'm also listed as a reader on LULAC's report; in other words, I'm conflicted out the wazoo so take it as you will -- I make no pretense at objectivity.

Still, the admission requires some small explanation for my Democrat friends. In this partisan era, crossing party lines inevitably makes some people mad, plus he and I disagree on a lot of important stuff, starting with choice, not just abortions but schools. I chose to work for Allen precisely because of his leadership on the criminal justice issues described above. His district was targeted by pro-choice groups and Democrats as one of the few competitive seats in North Texas, and he's presently in quite a nasty race. To my way of thinking, though, if Allen loses, the Texas Legislature will still be pro-life, but criminal justice reformers would lose an important Republican friend, and a committee chair to boot. That made it a no-brainer. Yesterday I was proud of Chairman Allen, and it made me feel completely comfortable, perhaps for the first time, about the decision to help his campaign.

Scott's blog is a great resource on crime-related topics, and I take what he says here seriously even though Ray Allen's opponent is someone I support. The main quibble I have with him is that by accepting the "only Nixon could go to China" logic, you essentially concede the crime issue to Republicans. This is something I'm unwilling to do, just as Greg refuses to concede the national defense issue.

There are two ways to run against Republicans on the crime issue without staking out the farther-right position. One is to note that if our criminal justice system is screwed up through the felonization of increasingly minor crimes, wildly out-of-whack sentencing guidelines, unscalable barriers to exonerating the innocent, and so forth, it got that way after thirty years of Republican demagogery and the legislation that resulted from it, which leads to a question: Why should we trust the people who broke the system to fix it?

Second is the notion that our longterm tuff-on-crime mentality has been (among other things) a huge drain on state and county budgets, which is something I've harped on before. Given the budget crunches at all levels of government, it makes sense to me to tie criminal justice reform to fiscal responsibility. Locking up the right people has certainly made a dent in crime, but locking up people indiscriminately is unaffordably expensive in addition to being just plain dumb.

I recognize, as you can see in that last link above, that there are Republicans, even in this state, who are coming around to the idea that there's a point at which being tuff-on-crime is counterproductive. I'm glad to see it, but I'm not convinced that the Ray Allens will ever be the majority in their party. I think wholesale change is going to be necessary to deal with these problems. (Assuming, of course, that the Democrats abandon their me-tooism and figure out a coherent message that makes sense, both of the common and political varieties.) In the meantime, I can't blame Scott for making a pragmatic decision. I just hope that in the near future, he won't be faced with that kind of choice again.

"The Candy Man", 30 years later

Thirty years ago this Halloween, a man living in the Houston suburb of Deer Park murdered his 8-year-old son by spiking a package of Pixy Stix with cyanide. Halloween has never been the same since.

Timothy O'Bryan's name may have faded from popular memory, but 30 years ago this Sunday his death shocked the country and earned the culprit the nickname "The Man Who Killed Halloween."

The 8-year-old Deer Park boy died Oct. 31, 1974, after eating trick-or-treat candy laced with cyanide. Within days, his father, Ronald Clark O'Bryan, stood accused of staging the crime as part of a life insurance scheme.

With his wife testifying for the prosecution, O'Bryan was convicted and sentenced to death. Dubbed the "Candy Man" by fellow prisoners, he was executed by lethal injection in 1984.

[...]

The decades-old idea that depraved strangers are targeting children with tainted Halloween candy, however, is more fiction than fact, says a sociologist who has studied the phenomenon for 20 years. University of Delaware Professor Joel Best said he has yet to find a case in which a stranger deliberately poisoned trick-or-treaters.

"This is a contemporary legend that speaks to our anxiety about kids," Best said. "Most of us don't believe in ghosts and goblins anymore, but we believe in criminals."

Thirty years ago, after Timothy's death, the idea of a madman poisoning children with Halloween candy was all too real.

"We were all shocked that someone would kill their own son, their own flesh and blood, for a lousy ... $40,000 life insurance policy," said former Harris County Assistant District Attorney Mike Hinton, who prosecuted the case.

O'Bryan apparently was willing to go further, passing the poisoned Pixy Stix to at least four other children, including his 5-year-old daughter, Elizabeth. Miraculously, officers were able to retrieve the remaining tampered candy before any other children ingested it.

An 11-year-old boy who was given one of the tainted Pixy Stix was found asleep in bed later than night, cradling the tube of poisoned candy in his arms. He had been unable to pry out the staples O'Bryan had used to reseal the plastic container.

"He didn't have enough strength to get it open," Hinton said. "It just sends shivers down your spine."

[...]

The O'Bryan family had spent Halloween 1974 at a friend's home in Pasadena, where Ronald O'Bryan volunteered to escort the children on their candy-collecting rounds.

He later told police that someone at a darkened home, who only opened the door a crack, had handed him five Pixy Stix — oversized plastic tubes filled with candy powder — for the children in his group.

It was crucial to O'Bryan's plan, detectives said, that only his son eat the tainted treats. Back at the friend's house, investigators said, O'Bryan leaped over a coffee table to prevent his friend's 8-year-old son from eating one of the candies.

After returning to their home in Deer Park, O'Bryan told Timothy he could choose a single piece of candy before bedtime. Prosecutors said he urged his son to try the Pixy Stix.

The boy gulped down a mouthful of the powder, then went to bed after complaining that it tasted bitter. Minutes later, Timothy ran to the bathroom and began vomiting, police said. By the time he got to the hospital, he was dead.

[...]

A few days after Timothy was buried, an insurance agent had called police to report that, unknown to his wife, O'Bryan had taken out policies on his two children shortly before Halloween.

Detectives also learned that O'Bryan, deep in debt, had been boasting to co-workers at Texas State Optical that his financial health soon would undergo a remarkable recovery.

O'Bryan also quizzed one of his customers, a chemist, about poisons. He seemed particularly curious about potassium cyanide and asked where it could be purchased, the customer told police.

Investigators later scoured the family home, where they found O'Bryan's pocketknife with traces of plastic and powdered candy stuck to the blade.

The jury took about an hour to convict O'Bryan and only slightly longer to hand down the death sentence.

Despite his findings, even professor Best admits he was not immune to trick-or-treat fears, though he said he made it a point not to closely examine his own kids' candy hauls.

"I had too much pride in my research," he said. "But I think my wife checked them."

Tiffany has told me that she and her sister weren't allowed to go Trick or Treating for years after that. Thankfully, the tradition has bounced back in Houston, at least if the hordes that show up in my neighborhood are any indication. For what it's worth, we were never really affected by this in New York. Oh, we threw out anything that wasn't wrapped in original packaging, but that was as far as my family's paranoia ever went.

Snopes.com notes other incidents that have kept the Halloween hysteria alive. I say be careful, but have fun anyway.

A boost for the Innocence Network

This story about the Texas Court of Criminal Appeals offering support to the Innocence Network is a very pleasant surprise.

A decision by Texas' highest criminal court to support the struggling Texas Innocence Network may signal a crack in state officials' longtime resistance to innocence claims.

The growing number of exonerations in recent years persuaded the Court of Criminal Appeals to put up $10,000 from an education fund it oversees to finance a Nov. 5 conference in Austin on how to expand the fledgling Innocence Network statewide, said Judge Barbara Hervey. The network currently is based at two universities.

The appeals court has been criticized for what some consider its indifference to innocence claims, most famously when it rejected DNA evidence in the case of Roy Criner.

Criner served 10 years in prison before being pardoned in 2000 after a second DNA test showed he did not commit the rape for which he was convicted.

"The court has been criticized, particularly by the defense bar, as being prosecution-oriented," said law professor Robert Dawson, who heads the Innocence Network branch at the University of Texas at Austin. "That's what makes Judge Hervey's participation so remarkable."

Hervey is the driving force behind the initiative by the appeals court, the state's court of last resort in criminal cases. "My goal is to see Texas lead the way nationwide," she said.

[...]

The effort to bolster the Texas Innocence Network has the backing of all nine judges on the Court of Criminal Appeals, six of whom will attend the Nov. 5 conference, Hervey said.

I'm completely flabbergasted. The Texas Court of Criminal Appeals is almost a misnomer - it's been utterly indifferent to most actual criminal appeals. The Roy Criner case is a particularly egregious example of their bizarre views of jurisprudence, but it's not the only one. This is such a monumental shift that I'm surprised no one felt the ground rumbling beneath them.

Many district attorneys are skeptical or even hostile to the idea of an innocence commission and the work of the Innocence Network because both review their work.

Rob Kepple, director of the Texas District and County Attorneys Association, said he will attend the conference with an open mind.

"If it's done properly and with a set of procedures, I think it's great," Kepple said. "If all it's going to do is be press conferences and bashing people in the system and a way to abolish the death penalty, I think you've got problems."

Harris County District Attorney Chuck Rosenthal, whose office has been plagued by problems at the Houston police crime lab that affected hundreds of cases, was uncertain about attending the gathering. He has clashed with the founding branch of the Innocence Network at the University of Houston but says he does not oppose expanding the network.

"I have never minded people grading my papers," he said.

But he added that the UH Innocence Network has treated his office shabbily.

"I've been upset that they've wanted to handle cases in the media as opposed to the courts," Rosenthal said. "There have been times when they have resorted to ad hominem attacks on people in this office as opposed to legal attacks."

Dow, head of the UH program, said the network has good relations with other district attorneys' offices but Rosenthal's seems "unusually defensive and reluctant to admit fault."

Rosenthal's been saying that "grade my papers" line for awhile now, but I don't think he really means it. I know that Rosenthal is all about being "tuff on crime". Well, I say you can't really be tough on crime unless you're also vigilant about exonerating the innocent. Every wrongly convicted person currently rotting in jail does not just represent a failure of the system, however inadvertent or understandable it may have been. He or she also represents a real criminal who got away with it and is out walking the streets. If that doesn't concern you, then you're not really serious about crime no matter what you may say.

Response to FBI report on Tulia

Last month I noted this article about an FBI investigation into the infamous Tulia drug bust. That investigation concluded there was no racial aspect to what disgraced former undercover agent Tom Coleman did. I had my doubts about the story, but didn't delve into in in any detail.

There's now a comment in that post which points to this Plainview Daily Herald piece which responds to that FBI report. It's pretty persuasive. I'm reprinting it beneath the More link for posterity. Thanks to Scott for bringing it to my attention.

My Turn: Tulian offers different view on TV report, article

DR. ALAN BEAN

Richard Orr´s article in last Sunday´s Herald (“Not so innocent after all” regarding the controversial 1999 drug sting in Tulia) summarized the findings of Todd Bensman, an investigative reporter with the CBS affiliate in Dallas.

Bensman reports that, according to an FBI report mysteriously obtained from an undisclosed source, eight Tulia defendants admitted that they sold drugs to Tom Coleman. The implication is that Governor Perry, had he only known, would never have pardoned the Tulia defendants nor would attorneys for the City of Amarillo have sanctioned a $6 million settlement.

Curiously, no one is asking why eight alleged drug dealers would be willing to damn themselves when it would have been so easy to lie?

The true child of God, King David tells us, “sweareth to his own hurt, and changeth not.” (Psalm 15:1)

Tom Coleman was paid with Byrne Grant money distributed through the federal Department of Justice. Asking the feds to investigate Tulia was like hiring the fox to check into a disturbance down at the henhouse. By the autumn of 2000, the Department of Justice had already ignored two civil rights complaints filed in connection with the Tulia sting. Only when the story hit The New York Times did the feds agree, albeit grudgingly, to launch an investigation.

According to the CBS report, Alberta Williams “boasted” to the FBI officers that she sold Tom Coleman “more drugs than she was prosecuted for.” Ms. Williams was not boasting; she was looking for answers. If Coleman failed to turn in evidence, he was in violation of the law.

A legitimate narcotics agent once told me that getting a crack addict to sell you drugs is “like shooting fish in a barrel.” The desperate desire for drug money eventually converts users into dealers if the narcotics agent keeps begging long enough. Police officers call it, “making a crook”; the technical term is “entrapment.” Either way it´s illegal.

Many weekend users had become full-blown crack-heads by the time Tom Coleman´s money-machine shut down in July of 1999. Coleman spent 18 months and thousands of your tax dollars funding the addictions of indigent Tulia residents. Nice work, if you can get it!

Poor drug dealers smoke tiny “rocks” of crack cocaine that can be purchased on the street for between $5 and $20. Powder cocaine is known as a “rich man´s drug” because it costs well over a hundred dollars to buy a little baggie of powder the size of your thumb. Poor users turn to crack because they can´t afford to buy powder cocaine. You can´t sell what you can´t afford to buy.

Tulia defendants told the FBI that Tom Coleman bought little rocks of crack cocaine then filed powder cases in Amarillo. If they were right, Coleman was tampering with evidence. Defendants swore to their own hurt because it was the only way to implicate Coleman. Admissions of innocence wouldn´t have done the trick.

Economic reality suggests that indigent crack addicts were falsely accused of selling Tom Coleman powder cocaine. But that´s just the beginning.

Tanya Michelle White proved she was in Oklahoma City when Coleman said she was selling him drugs in Tulia.

An aging hog farmer named Joe Moore identified Coleman as “the law” the minute the pony-tailed white man hit the streets. On more than one occasion, Joe ran Coleman off his front porch in front of witnesses.

Defendants like Freddie Brookins Jr., Michelle Williams and Vincent McCray never met Coleman until the day they were arrested.

The sloppy undercover man, by his own admission, misidentified a long list of defendants.

Tulia defendants swore to their own hurt because they knew Tom Coleman had fingered innocent people.

In March of 2003, the Texas Court of Criminal Appeals requested that evidentiary hearings be held in Tulia. Tom Coleman´s credibility collapsed under a heap of strange and conflicting testimony. A long series of credible witnesses testified that Coleman was dishonest, incompetent, corrupt, irrational and racist.

After a week of this testimony, the State of Texas threw in the towel. A month later a Swisher County grand jury filed three counts of aggravated perjury against the Texas Lawman of the Year.

The remarkable honesty of selfless citizens lent integrity and credibility to a long, mystifying struggle. Viewed in the full light of day, the admissions of eight men and women demonstrate that Judge Ron Chapman, attorneys representing the State of Texas, Governor Rick Perry, and the City of Amarillo called it right.

Some would call those who swear to their own hurt foolish or naive. King David calls them children of God. My better angels are inclined to agree.

(An ordained minister, Dr. Alan Bean serves as executive director of Friends of Justice, a Tulia-based criminal justice reform organization.)

What's the rush?

I probably should have already blogged about the Governor's refusal to halt executions while the godawful Houston Crime Lab mess gets cleaned up, but if you've been waiting for me to do so I hope you've already seen what Ginger and Norbizness and Steve Bates have had to say. I'm a reluctant supporter of the death penalty, but I can't say it'd be any great loss if we executed about 90% fewer criminals than we do now. I'm glad to see that today's scheduled killing is temporarily on hold. All I want to ask Governor Perry is "What's the rush?" These guys aren't going anywhere. Given how badly the crime lab here screwed the pooch, I think we owe it to everyone involved to make sure that the evidence still says what we once thought it said for all of the potentially tainted cases before we start up the lethal injection carousel again. Like I said, these guys aren't going anywhere.

UPDATE: Turns out last night's execution went ahead as planned anyway.

It now costs more to be a bad driver in Texas

I've snarked about the many new fees and surcharges imposed by the Lege last year while they crowed about "no new taxes", but this is one new surcharge I fully support.

The hefty surcharges — totaling $67 million since they went into effect a year ago — are aimed at Texans who drive without a license or insurance or while drunk.

The law is expected to raise about $1 billion for trauma care over the first five years and another $1 billion for highways and general revenue funds.

A person fined for driving without a license will have to pay an extra $100 a year for three years. Driving without insurance or with a license that's been revoked will add a surcharge of $250 a year for three years.

A first driving-while-intoxicated conviction will include a surcharge of $1,000 a year for three years — double that for drivers whose blood alcohol was 0.16 or more.

Notices of these new fines are just being mailed out now, due to the late installation of a new computer system to handle it all. Fines for speeding and other moving violations are already higher as a result of this new law.

I'm cool with all of this, and I like where the new revenue is going. There's one small thing that concerns me.

The author, Rep. Dianne Delisi, R-Temple, said she has little sympathy for Texans who will soon receive notices of the expensive surcharges.

"If you look at the folks that are in the system now, I have no sympathy for DWIs. They can howl all they want to."

The get-tough surcharges are patterned after a New Jersey program, in effect for more than 15 years, that has dramatically changed driver behavior, according to Delisi's office.

"They went back and measured since they first had it in place. There was a 24 percent reduction in fatalities. Phenomenal, isn't it?" Delisi said.

She added that Texas has the highest number of alcohol-related traffic fatalities in the United States, but it will take until 2007 or 2008 to see if the financial penalties bring the desired results.

If I'm reading this correctly, then one of the intended and expected results of these new surcharges is a reduction in bad driving behaviors. This is, obviously, a good and desireable thing. One way we ought to be able to tell if it's having the effect we're hoping for is if there is an eventual decline in revenues stemming from these fines. And that's where my concern comes in. I worry that since this new law will at least initially bring in a lot of extra money for hospitals and trauma centers that funding for these services will become dependent on that revenue source. If so, then they'll be in a bind when this law begins to have the effect it's intended to have, namely that reduction in bad driving behavior and the reduction in fines that will accompany it.

It's therefore my hope that we'll keep in mind the primary goal of better road safety, and treat any extra revenues along the way as a temporary condition. As with gambling and sin taxes, we shouldn't count on bad habits to fund government services.

FBI report on Tulia investigation

The Express News reports on an FBI investigation into the Tulia drug busts and which concludes that there's no evidence of racial motives on the part of disgraced undercover agent Tom Coleman, and thus no evidence with which to bring federal civil rights charges against him.

The civil rights investigations centered on a 1999 sting by an Amarillo-based regional drug task force and Tom Coleman, its undercover officer.

Coleman's uncorroborated solo work resulted in the arrests of dozens of Tulia residents, most of them black, and provoked national condemnation as blatantly racist.

The FBI, and later then-Attorney General John Cornyn, responded by launching separate civil rights investigations, the results of which remain tightly guarded.

The records summarizing the FBI's investigative work are contained in a Texas attorney general's file.

KTVT-CBS 11 in Dallas independently obtained the file after the state office, the FBI and the U.S. Department of Justice turned down open records requests.

According to the records, the lead FBI agent who spent nearly three years looking for evidence that Coleman, who is Anglo, was racist and that he fabricated evidence to rid Tulia of blacks, found nothing to support those allegations.

Amarillo-based Special Agent Tim Reid, who led the bureau's civil rights inquiry, told state investigators as they were starting their own probe in late 2002, "It was his opinion that the Tulia arrests were not racially motivated, and Thomas Coleman had not violated any laws."

Reid also concluded that no evidence could be found that Coleman ever tampered with evidence and said he could find no proof of juror misconduct in the original Tulia trials.

[...]

Civil rights activists condemned the FBI and state investigations as faulty and inadequate.

One of them, Tulia resident Gary Gardner, said his own investigation and collection of court records contradict all of the FBI's findings. He blamed investigative shortcomings by the FBI and attorney general for the lack of civil rights-related charges against anyone.

"I did not attack publicly the charade until it became apparent that people like the Rangers and the FBI were not going to do a proper job of investigating and assuring justice was done," Gardner said.

Alan Bean, a minister who founded Friends of Justice in the wake of the Tulia drug sting scandal, said the issue was never about the guilt or innocence of the defendants. At issue was the fundamental validity of legal procedures in which people were imprisoned on the uncorroborated word of a single undercover officer with a checkered past.

Coleman's "allegations against (the Tulia defendants), and any allegations they might have made against him, devolve into a swearing match between a cop and convict. Forced to choose between Coleman and the convict de jure, nine Tulia juries went with Coleman," Bean wrote in an e-mail.

"It is hardly surprising that the Federal Bureau of Investigation or the Texas attorney general's office would also side with Coleman. Forced to choose between Coleman and a convicted felon, and with nothing to go on beside allegations and denials, they were going to side with Coleman."

Reid told state investigators he did find fault with Coleman and his bosses.

A Feb. 27, 2003, memo at the attorney general's office listed six "Problem Areas" in the Tulia sting.

They included that Coleman lacked of qualifications for major undercover work, that his bosses let him return to the operation after a theft charge against him came to light, and that his methods of identifying suspects were flawed.

It's hard for me to believe that there was no racial element at play in the Tulia case, though the story notes that in other cases which featured Coleman there were no similar disparities. I don't doubt that it would be hard to prove a federal civil-rights violation charge, but I feel unsatisfied with what I've read here. It doesn't look to me like there will be anything more to it at this point, though.

Paying attention

What Dwight says. This sort of thing should not happen in a civilized country.

That voodoo that you don't do

I guess you could call this I Got My Mojo Workin' But It Just Don't Work On You:

The head of a multistate drug ring that paid a voodoo priestess for protection from federal agents might want a refund.

John Timothy Cotton, 39, is facing a life sentence after being convicted of drug trafficking. Cotton was accused of leading a Houston-based organization that netted an estimated $43 million over 10 years, dealing crack cocaine in Louisiana, Mississippi, Texas and Kansas.

"This was probably the largest drug-trafficking case prosecuted by this office in several years," said U.S. Attorney Donald Washington.

Most of the drugs came from Colombia and the Dominican Republic, where Cotton shipped at least $500,000 on one occasion in a car stuffed with cash, Washington said. Cotton and other members of the drug ring paid thousands of dollars for voodoo hexes against federal agents and for protection, Washington said.

"They paid what they called a spiritual adviser -- what we would call a voodoo priestess -- large amounts of money for blessings to protect their drug-trafficking business ...," Washington said. "If I were them, I would ask for my money back."

Better hope they kept the receipt. And is it just me, or is anyone else mildly alarmed by the fact that the U.S. Attorney's office has been categorizing voodoo priestesses?

Herbert and Blakeslee

Atrios links to a Bob Herbert column and notes that he doesn't link to Herbert often enough.

Despite my odd reticence to draw attention to his work, Herbert should be in line for every humanitarian award there is for his critical role in bringing attention to the Tulia, TX injustices. Herbert's contribution to the cause of justice in this situation cannot be overstated. One would hope that some of his colleagues would look at his example and begin to understand the power for good they have at their fingertips (cough, Modo, cough).'

And, even writing that... I've not given him enough credit. If once in my life I could claim as an accomplishment what Herbert did with the Tulia case I'd consider it a life worth living.

There's no question that Bob Herbert did a lot to bring the Tulia injustices to the world's attention, but it must be noted that the story was actually broken in June of 2000 by Texas Observer reporter Nate Blakeslee. Here's the Observer's complete coverage of Tulia, starting with the June 2000 article that got the ball rolling. However much credit Herbert deserves, Blakeslee deserves more. Herbert had the bigger microphone necessary to make people hear about Tulia, but it was Blakeslee's words that he was broadcasting.

This is all of special interest to me now. Last week I got an email from Dr. Char Miller, one of my favorite profs from Trinity. He's the editor of a just-released anthology called "Fifty Years of the Texas Observer", a review copy of which sits in my hot little hands. I plan on reading it in my copious spare time over the next two weeks or so and writing a review here. Stay tuned for more.

Here's a little taste of what you'll find. From an October 30, 1964 editorial called "This Man George Bush", about that Senate race that year:

Presenting himself as "responsible", he says his conservatism is "compassionate", yet he has so little sensitivity for the feelings of the needy aged; he wittily compares medical care for the aged with a federal program to air-condition ship holds for apes and baboons, a program which he has dubbed "medical air for the caged".

Plus ca change, eh? I'll bring more such tidbits as a go through the book. In the meantime, remember the Observer, which started publishing 50 years ago this December.

Divorce

Rusty and Andrea Yates are getting divorced.

In his divorce petition, Rusty Yates, 39, says he and his wife of 11 years ceased to live together as husband and wife on or about June 20, 2001 — the day Andrea Yates called police and told arriving officers she had drowned her children.

The couple was married April 17, 1993.

[...]

Rusty Yates, who regularly visits his wife at the Skyview prison psychiatric unit near Rusk, says the couple will enter into an agreement to divide their assets, the petition filed by Houston attorney David Salinsky says. If an agreement cannot be reached, Yates asks that the court divide their assets.

The family's Clear Lake-area home where the children were drowned was recently sold.

Salinsky was not in his office late Monday afternoon for comment. Rusty Yates also could not be reached at his Johnson Space Center office and did not return a message left on his cell phone.

George Parnham, Andrea Yates' defense attorney, said he was sure she was aware of the divorce request.

"Andrea knew this was coming. She had been aware of it for some time. I don't think Rusty would pull this on her unexpectedly. And there's no questioning the fact that he still cares deeply for Andrea," said Parnham, who is handling Yates' criminal appeal.

[...]

Andrea Yates was returned to her prison unit last week after a nine-day stay at the University of Texas Medical Branch in Galveston. She was taken to the prison hospital unit after she refused to eat and drink and was in "an acute confusional state" both mentally and physically.

She was fed intravenously while hospitalized.

Parnham said he could not say if Yates' recent hospitalization was a result of her marriage ending.

"I just hope the whole process causes her as little anguish as possible," he said.

I can't quite bring myself to make any smartalec remarks about this. I've long since ceased finding anything humorous in this sad, sad affair.

One thing I do want to know: Why did the Chronicle think this was front-page, above-the-fold news? Was there nothing more important happening yesterday?

Seven years probation

That former right-wing radio talk show host whose name I will not mention has been sentenced to seven years' probation for exposing himself to an eleven-year-old neighbor girl. I'm not all that interested in the details, but I gagged when I read his public statement.

"Those of you who have listened to my radio show and read my newspaper columns over the years know how strong a supporter I was of our criminal justice system. I can only say how misguided I was. Our criminal justice system is not based on justice; it is a quota system where conviction is the only scorecard," he said.

What an utter, flaming hypocrite he is. How totally self-absorbed and self-serving he is to harbor any suspicions about the criminal justice system after all these years, when it's his own ass on the line. If it were in my power to do so, I'd force him to listen to his own broadcasts about crime and criminals for the entire time he's on probation. He has richly earned all the scorn and contempt that will be heaped on him for the rest of his life as a result of his wrongdoing. For shame.

On a side note, if he feels the need to commiserate with someone over their shared fascination with the underaged, here's someone to whom he could reach out. Via Alan.

Yates improving in hospital

Andrea Yates is doing better at the psychiatric hospital in Galveston, though she's still clearly very ill.

Andrea Yates, who three years ago drowned her children in a bathtub, was reported to be improving in a hospital here Thursday although her mother said she did not realize she had been brought to Galveston.

Yates was transferred from the Skyview Unit, a prison psychiatric facility near Rusk, to the University of Texas Medical Branch in Galveston on Monday after lapsing into what doctors called "an acute confusional state."

Her mental and physical state had declined for the past six to eight weeks, they said.

Jutta Kennedy said her daughter, who had stopped eating and lost about 30 pounds, is under a suicide watch and has an attendant with her 24 hours a day.

Kennedy, her two sons and attorney John O'Sullivan visited Yates for a little more than an hour Thursday.

Afterward, Kennedy said her daughter seemed comforted to see her, although "she doesn't know what she is saying." After exchanging pleasantries, she said, Yates asked how the children were.

"I told her they are fine and that they are in heaven and that's the best place to be. I don't know what else to say," Kennedy said, with tears in her eyes.

I don't know what else to say, either.

Andrea Yates hospitalized

This is no surprise.

Texas prison officials transferred Andrea Yates to John Sealy Hospital Monday because she has lost a significant amount of weight and her mental and physical condition has deteriorated, George Parnham said.

"There's just a blackness to her mental state right now," he said.

Parnham, who represented Yates in her trial and is handling her appeal, said he hopes to meet with her as soon as Thursday at the hospital, part of the University of Texas Medical Branch.

He said, however, "she's in no shape to talk" at present and basically is "incoherent."

Parnham said he did not know whether Yates, 40, was being fed intravenously or how much weight she has lost, but that it is a considerable amount.

[...]

[Rusty Yates] said this is the third time during his wife's prison stay that she has lapsed into what he called a "psychotic" state, adding that "this is the worst I've ever seen her, even before the tragedy."

Yates, who described his wife as "fragile" and "precious," said he last visited her on Saturday, as he does about every two weeks. He said she was shaking and delusional. "She thinks the kids are still alive," he said.

[...]

Parnham said Tuesday that Yates' physical and mental condition has remained delicate.

He said he visited her three weeks ago, but would not comment on what might have sent her into this latest tailspin. Parnham did say she is suffering from severe depression.

"There are a number of issues that have led to (this)," he said.

"She is just physically and mentally exhausted. And obviously, there is concern for her physical well-being, which prompted the transfer."

Parnham praised the treatment Yates has received for her problems, both mental and physical, at the Skyview Unit.

"But it's not a general hospital, and John Sealy is and has an excellent reputation," he said. "She's reached a point where, mentally and physically, she's having a very difficult time."

I've said all along that Andrea Yates belongs in a hospital. If there were justice in the world, she'd stay there instead of getting sent back to a cell once she's pronounced physically fit.

Making the world safe for sex toys

Joanne Webb, the Felonious Sex Toy Selling Housewife of Cleburne, Texas, has had all charges dropped against her.

A woman who received nationwide attention when she was arrested for selling two sex toys to undercover police officers posing as a couple is no longer charged with violating the state's obscenity law.

The case against Joanne Webb was dismissed by a judge, Johnson County Attorney Bill Moore said Friday in a statement. He said he asked the judge for the dismissal to prevent wasting county resources, but he didn't give a date for the dismissal.

No one answered the phone at Moore's office Saturday.

Webb, a former fifth-grade teacher, started selling erotic toys and other adult products as a Passion Parties Inc. consultant in June 2003. She hosts what she calls Tupperware-type parties for suburban housewives who feel more comfortable buying marital aids in a private home than at an adult bookstore or on the Internet.

Webb was arrested Nov. 13, about a month after the officers approached her at her husband's business in Burleson, about 10 miles south of Fort Worth, and bought two products. She had faced up to a year in jail and a $4,000 fine, if convicted.

Webb's attorney, BeAnn Sisemore, said she and her client were pleased.

"We knew that it was a possibility, but we weren't contacted," she told the Cleburne Times-Review for its Sunday edition.

Webb learned from a reporter that the charges had been dropped.

Moore said a pending federal lawsuit filed by Sisemore would determine the constitutionality of the state obscenity statute Webb was accused of violating.

The Cleburne Times-Review story is here, if you want to fill out their noxious registration screen. Mrs. Webb expresses some defiance after this outcome.

The former elementary school teacher, a mother of three, called the dismissal by Johnson County "the wisest action they could have made."

"The fact that they arrested me in the first place shocked me," Ms. Webb said. "As far as my family and I were concerned, jail was a possibility. This is a cloud that has been hanging over us for the last eight months. We finally feel like we can breathe again."

[...]

Despite the charge, she said, she never stopped promoting the Tupperware-style parties, though she stopped staging them in Johnson County. And she has no plans to stop now.

With the charges dropped, Ms. Webb vowed to continue fighting to repeal an obscenity law she described as outdated and selectively enforced. She plans to join a federal lawsuit seeking to declare the law unconstitutional. She had not been allowed to participate in the lawsuit while her case was pending.

"My personal battle has been won, but the battle to attack this law is just beginning," she said.

The "Sisemore" mentioned in the Chron clip is BeAnn Sisemore, Mrs. Webb's attorney.

Webb's attorney, BeAnn Sisemore, said she and her client were pleased with the dismissal.

"We knew that it was a possibility, but we weren't contacted," she told the Cleburne Times-Review for its Sunday edition.

[...]

Moore said a pending federal lawsuit filed by Sisemore would determine the constitutionality of the state obscenity statute Webb was accused of violating.

According to the state's obscenity code, an obscene device is a simulated sexual organ or an item designed to stimulate the genitals. Adult stores get around the law by posting signs that say "sold only as novelties."

Webb is not named in the lawsuit, but she may join it as soon as next week, Sisemore said.

The dismissal of the misdemeanor charge is "a victory, but absolutely it's not the end of the fight," Sisemore said. "Now that real fight can begin."

Oh, I can't wait.

Tulia settlement checks disbursed

Almost all of the Tulia defendents received a share of the settlement yesterday in their lawsuit against the counties involved in the drug sting that unjustly sent them to prison. They also received some financial planning help, and an excellent piece of advice.

All but four of the 46 people arrested by a Panhandle narcotics task force solely on the word of one undercover agent received their pre-tax portion Friday of the settlement with Amarillo and 26 counties.

Three of the former defendants, nearly all of whom are black, are still in prison because the drug arrest violated their parole. Their money went into a trust account.

The fourth died before the filing of the civil lawsuit claiming the arrests were racially motivated.

[...]

To steer her clients away from future trouble, Vanita Gupta of the NAACP Legal and Educational Defense Fund hosted a financial seminar in Tulia days before the checks were delivered.

Sitting in a meeting room in the Swisher County Memorial Building bearing the last name of two former local sheriffs, about two dozen people got a crash course in money management from a New York-based venture capitalist.

Nine hours stretched over two days, however, is not enough time to teach more than the basics to the few who had never opened a bank account, others in need of general equivalency diplomas and several without jobs or chances of getting one.

But their teacher, Melissa Bradley, a Soros Justice Fellow at the Open Society Institute, refused to accept a lack of formal financial education as an excuse to squander the settlement.

"There is no reason you should not have more money a year from Friday than you do on Friday," she told them. " ... You have the opportunity, if you put in the time, if you put in the effort, to make this money grow."

That will be a self-motivated enterprise since there's little help in the community where many of them grew up and still live.

Tulia has been a town of just 5,000 people since 1970.

The library has several outdated financial planning books on its shelves, including a tax preparation guide from 1995. Three banks serve the town, and the personal banker at one has not completed college.

And many residents expect the worst of the former defendants.

Although no white Tulia residents agreed to be quoted, all who commented believe most of the Tulia 46 sell drugs despite Chapman's ruling that no evidence supported the accusations.

They also predicted every cent of the money received Friday will be gone in a year.

[...]

Willie Hall plans to open a beauty supply store in Tulia. Others inquired about buying the town's defunct Dairy Queen.

Such dreams have raised the anger of neighbors who can't imagine their dusty downtown being revitalized by people who don't regularly attend one of the two dozen churches in town.

"That people can do wrong and come out of prison with a clean slate and more money than anybody else has ever had, that's not fair," says Dora Benard, a black resident who prayed on the jailhouse steps for many of the defendants.

Gupta, of the NAACP legal defense fund, warned that investing in Tulia is risky.

"By and large, folks need to think about relocating and moving to a place where the stigma of the sting is not always on their backs," she said. "It will be much harder to succeed at using this money to improve their lives as long as they live in a place where everyone else believes they are guilty people and what they are receiving is not deserved."

I hope each of them gives long thought to what Vanita Gupta is saying. I can't help but think that the best thing each of the 42 who received a check yesterday could do is pack up their belongings and their loved ones and get the hell out of Tulia, never to look back. I'd like nothing more than to read in a "Where are they now?" piece in five or ten years that most if not all of them started new lives elsewhere and are happy that they did so.

Joel Steinberg goes free

Joel Steinberg, the man responsible for the awful, brutal death of his illegally adopted daughter Lisa Steinberg in 1987, will get out of jail today. I'm getting sick just thinking about it. (Please note: if you don't have a strong stomach, DO NOT follow that Crime Library link.) He spent sixteen years in jail, as his conviction was for first-degree manslaughter rather than murder. It's not enough. It never could have been enough.

The first-season Law and Order episode "Indifference" was based on this case; the producers started including those "Although inspired by true events..." disclaimers because of this one.

Via TalkLeft.

Matthews pleads guilty

Former right-wing talk show host Jon Matthews has pleaded guilty to one count of indecency with a child.

Matthews, 59, who resigned from his position at KSEV-AM 700 last year, was to go to trial June 28 but decided to accept the agreement after rejecting it last week, said Fort Bend County District Attorney John Healey.

In a pre-trial hearing this morning in the court of state District Judge Brady Elliott, Matthews' attorney, Stephen Doggett, said he wanted to speak with prosecutors about reconsidering the offer.

Healey said prosecutors were surprised by Matthews' decision.

"It was a possibility, but it was not anticipated," Healey said.

Matthews left the courtroom with his attorney and declined to comment.

The judge deferred the official finding of guilt and the sentencing until Aug. 2.

According to court documents, Matthews is to be placed on deferred adjudication for seven years.

Criminal defendants who successfully complete the terms of deferred adjudication avoid final conviction, but the fact that they were charged remains a part of their record.

The arrangement calls for Matthews to register as a sex offender, perform community service and move from his Sugar Land house.

Prosecutors said Matthews can no longer reside at the house on Rolling Mill because it is too close to Sugar Land Middle School. State law prohibits sex offenders from living within 1,000 feet of a school.

Matthews also must make a $5,000 donation to Crime Stoppers.

He was indicted Nov. 11 on a charge alleging that he had exposed himself to an 11-year-old girl at his home on Oct. 9. He was arrested two days later and released on $10,000 bail.

There are an awful lot of snarky comments that I could be making here, and I've no doubt that were this story about a prominent liberal, Matthews would be right there on the air making them and condemning everyone remotely connected to that person, but I'll refrain from anything beyond that. Not out of any respect for Matthews, for whom I have never had any, but out of respect for the child involved. No matter how you slice it, there's nothing funny about that.

UPDATE: Today's Chron story gives more detail about the crime Matthews will plead guilty to.

A tale of two injustices

The top story in today's Chron is a status report on the unjustly convicted citizens of Tulia. They're still miles away from any kind of genuinely happy ending.

Last June, Gov. Rick Perry signed a bill freeing those who were still in prison, but their legal battles continue as they try to get the bogus convictions expunged.

More important, most of the 46 people ensnared in the corrupt 1999 drug sting have been trying to put their lives back together. Of those arrested, 38 people, most of them black, were convicted.

For some, there is not much to restore. They live on the most economically depressed side of a town in a two-decade slump.

And though they may not have committed the crimes they went to jail for, several have admitted using drugs and some have had scrapes with the law that previously landed them at least on probation.

Soon they will be rich -- at least by Tulia standards. Swisher County paid them $12,000 each as part of a settlement for their wrongful convictions. They also await a decision from the judge in charge of dividing $4 million among them.

For some, buying cars was one of the first steps in defining their new lives. Dealers, anticipating the settlement, made it easier by deferring payments until the money came in. Finding a modicum of normalcy may be more elusive.

"Everyone is poor, and there aren't good jobs in Tulia," said Vanita Gupta, an NAACP Legal Defense Fund attorney who argued the cases on appeal. "The town still has a lot of resentment about the tarnishing of their town's name, so they are not interested in hiring the former defendants.

"And until they have the convictions wiped from the record, they also do not have access to public housing or student loans to go to school. Tulia has become the name for everything wrong with the war on drugs."

Miles and miles to go.

Over on the op-ed pages, there's this strong piece by Suzanne O'Malley, author of Are You There Alone?: The Unspeakable Crime of Andrea Yates. Two bits worth quoting, though the whole thing should be read:

"[What] made it challenging for me is that I wished she were insane, but she wasn't, not within the law of Texas. And yet, the reason I wished she were insane is that this was a very good woman before she became ill who was a very sick woman after she became ill. It's a rare combination, of the people that I see, to have someone of good character who is profoundly sick. She, despite having nearly incapacitating symptoms of mental illness, nonetheless knew that her actions in killing the children were to be condemned by God and by society, and that they were illegal. [S]he believed that [her children's] best chance of heaven was to die now, before they were corrupted [by Satan]."

That's Dr. Park Dietz today, speaking about Andrea Yates. And then there's this, regarding the nearly identical case of Deanna Laney:

Were the verdicts different because Yates followed orders from Satan and Laney from God? It seemed incredible, but many were tempted to think Texas jurors might be that biased. I had a different take: Andrea Yates' legal misfortune was that her delusion included knowing that the drownings were wrong, fitting snugly -- though perhaps too literally -- within the Texas sanity test. Indeed, some of the think tank members seemed surprised that Dr. Dietz had sliced legal sanity so thin. That the jury had gone along with him when, clinically, Yates was clearly insane.

I thought the public awareness generated by the Yates case was the reason for the different verdicts. For more than a year, daily Yates press coverage had taken the nation to school. In the Laney case, even psychiatrists for the defense and prosecution (again including Dr. Dietz) and the presiding judge unanimously agreed Laney was insane, the district attorney felt citizens deserved a full public hearing of the controversial case. The Laney trial became a referendum on how the public wanted to deal with sick moms who harm their infants.

The jury's acquittal of Laney spoke loud and clear. Even under Texas law -- which like numerous states uses the strictest legal definition of insanity -- the public no longer supported million-dollar trials for the crime of infanticide when commitment to a state mental institution could be negotiated without one.

So in a sense, one of the think tank experts said, Deanna Laney got Andrea Yates' verdict? Exactly, I answered. That was my opinion. (Following Laney's acquittal, she was automatically transferred to a state maximum security psychiatric hospital where she may remain for as long as 40 years.)

Emphasis mine. While I largely concur with Ms. O'Malley's conclusion, I will always believe that if Andrea Yates' jury had known what an acquittal had actually meant for her, they never would have convicted. That's something that really needs to be rectified.

Berkowitz denied parole

David Berkowitz, the notorious "Son of Sam" killer, has been denied parole.

Berkowitz, serving 25 years to life in prison for the ambush killings of six people, was told by the state parole board that his "excellent disciplinary record" behind bars was given consideration.

"However, the brutality of your criminal acts which resulted in so much harm to your victims and society necessitate that you remain in prison," the board added.

"This panel feels that to release you at this time would seriously deprecate the nature of your extreme violent criminal acts and greatly undermine respect for law."

Berkowitz, who became a born-again Christian in 1987, faced the parole board this week at maximum-security Sullivan Correctional Facility in the Catskills, 80 miles north of New York City.

He will be eligible for release again in June 2006 - and under the law, must be considered for parole every two years.

It's fine by me that he must be considered for parole, and it's fine by me that he be denied it. One of the more vivid memories of my childhood in New York is the headlines generated by this creep and the sense of fear he put in all of us. The story notes that he's all of 51 now. Far as I'm concerned, he needs to stay put until he's quite a bit older.

Oh, and you had to know this was going to happen: Berkowitz has a blog, according to the Smoking Gun, which reproduces several of his entries. The Wash Times gives the URL. I will not be linking to it.

Yates house sold

The house in Clear Lake where Andrea Yates lived has been sold.

After being on the market for almost six months, the house where Andrea Yates drowned her five children in a bathtub has been sold.

Real estate agent Mike Canary said today that the home in the 900 block of Beachcomber in the Clear Lake area was sold last week. Details about the sale price and buyer were not disclosed.

The 1,620-square-foot, three-bedroom, two-bath home in the Camino South subdivision was listed for $109,900.

A good friend of mine who lives in the Oak Park suburb of Chicago told me once about the long and frustrating search for an affordable house in that neighborhood that he and his wife undertook. One day, he came upon a place that was not only suitable for them, but within their price range. It had recently come on the market and needed some work, but was basically in good shape. While looking at the place with the realtor, though, he noticed that there was something about it that she was reluctant to tell him. Eventually, he got the truth from her: The house had been the scene of a gruesome murder not that long before, in which a man brutally killed his wife.

My friend, being of a practical nature, was actually relieved to hear this - he had feared there was a major structural flaw with the house or something like that, for why else the low price? His wife agreed with him, and they made an offer which was ultimately rejected, as another couple was even more eager to get the house. They eventually found another place and are happy there.

Knowing nothing about that crime, I had no problems seeing things my friend's way. Knowing what I do about the Yates house, I don't think I could ever bring myself to buy it, even if it were the perfect house for me in other respects. I'm not a superstitious person, but as far as I'm concerned that place has ghosts in it. I wish the new owners well, and hope they won't have the same willies about it that I do.

Revisiting insanity

Somehow in the midst of all the school finance madness, a Senate committee is looking at the state's antiquated insanity laws.

A legislative panel is conducting its first hearing on the standard that requires a defendant seeking to be found not guilty by reason of insanity to prove he suffers from a severe mental disease or defect and didn't know his actions were wrong.

Attorneys and mental health experts were among those expected to address the Senate Jurisprudence Committee, which plans to look at the current law, treatment options, procedural issues and possibly changing the current plea of "not guilty by reason of insanity" to "guilty, but insane."

The legal debate has raged for years and has gained momentum through the high-profile cases of Andrea Yates, the Houston woman convicted in 2002 of capital murder for drowning her children, and Deanna Laney, found not guilty by reason of insanity last month in the stoning deaths of two of her sons.

"Andrea, because of the notoriety, was the lightning rod for public concern about how our system treats the mentally ill," Yates' attorney, George Parnham, said Wednesday.

The Harris County district attorney's office would like to see the Texas standard remain the same, but have stronger commitment conditions for those acquitted based on insanity.

Others, like Parnham, would like mental illness to be "decriminalized."

Kevin Keating, an assistant prosecutor in Harris County, said people who are found not guilty by reason of insanity are often released quickly from state hospitals. They are required to be committed for at least 90 days, with annual hearings into their case if the commitment period continues beyond three months.

"We want court supervision over you until such time as you are no longer mentally ill or no longer need medication to control it," he said. "From our perspective, the standard works. The post-acquittal monitoring does not work."

Keating cited a recent example: the case of Kenneth Pierott, a Beaumont man charged with murder for allegedly placing his girlfriend's 6-year-old son in an oven last month. Pierott was acquitted by reason of insanity for the 1996 killing of his sister, was released from a state hospital within six months of his 1998 acquittal and later was placed on probation for forgery and assaulting his girlfriend.

"The possibility certainly exists that they get out and they hurt people," Keating said. "There have been suggestions that a `guilty, but insane' verdict may be a way to solve this problem. If someone is found guilty, then the criminal justice resources may be available to deal with them."

But prosecutors believe they can solve the problem without changing the verdict -- by altering the criteria for inpatient commitment, Keating said.

You know, I can recall "guilty but mentally ill" being a hobbyhorse on the old TV show "Quincy". I have a hard time taking it seriously because of that, but I'll try. As long as the idea is that the person is ill and thus in need of treatment so he or she can get better, then I think we're on the right path. I agree with prosecutor Keating that the Pierott case was a failure of the system, but I'm willing to bet it's a far less common occurrance than what happened to Andrea Yates is. If we can handle the Andrea Yateses of the world properly while ensuring that the Kenneth Pierotts are not released prematurely, then we'll have truly improved things.

William Krar sentenced

William Krar will get eleven years in the pokey.

TYLER -- An itinerate gun dealer caught with a cache of poison gas, machine guns and other weapons in an East Texas storage facility was sentenced Tuesday to more than 11 years in federal prison.

But William J. Krar's motives, and those of his common-law wife, Judith Bruey, remain unknown to federal officials, who cast the case as a victory against domestic terrorism.

"To the extent there was any plot to use these weapons, that plot was thwarted," said U.S. Attorney Matthew Orwig of the Eastern District of Texas.

[...]

The case began to develop in January 2002, when a package of fake identification documents was mistakenly delivered to Staten Island, N.Y.

Federal agents traced it to a mailing center near Tyler, then to Bruey and Krar, who had moved to Noonan from New Hampshire in 2001.

In several storage sheds rented by the couple, agents found nearly half a million rounds of ammunition, blasting caps, pipe bombs, silencers, machine guns and more than 800 grams of almost pure sodium cyanide, enough to kill everyone in a one-story, 30,000-square-foot building within a minute.

"Anyone possessing that has to be considered very dangerous," [FBI Supervisory Special Agent Peter] Galbraith said.

I'm as glad as the next guy that a nutjob with a half million rounds of ammo and a bunch of explosives has been taken off the streets, but until and unless we get some kind of idea what Krar was doing with all that stuff and who he might have been doing it with, I'd call this a pretty qualified victory against domestic terrorism. Ammo and explosives are fungible; masterminds are not.

David Neiwert has followed this case closely from the beginning and has a lot of background info if you want to do some exploring.

Yates appeal filed

An appeal has been filed by Andrea Yates' lawyer, which alleges numerous mistakes in the trial, bad testimony from Dr. Park Dietz, and that Texas' insanity statute is unconstitutional.

"The standards presently in place are extremely archaic and do nothing for mental illness, and in this case, for women," Yates attorney George Parnham said. "We have an opportunity in this case to help the mentally ill, particularly those entangled in the justice system."

A spokesman for the Harris County district attorney's office could not be reached for comment late Friday.

Yates admitted to the June 20, 2001, bathtub drownings of her children -- Noah, 7; John, 5; Paul, 3; Luke, 2; and Mary, 6 months. She was charged, however, only in the drownings of Noah, John and Mary.

Yates was convicted in March 2002 and sentenced to life in prison.

Parnham filed the appeal about an hour before the 5 p.m. deadline set Thursday by the 1st Court of Appeals when it denied his request to be replaced by a Washington, D.C., law firm.

"Nevertheless, I will do everything in the world I can to help Andrea's case," Parnham said.

Parnham said his law firm asked to be replaced following a request by Arnold & Porter, a larger firm with more resources.

He said Arnold & Porter at some point came in contact with the Yates family, but he did not know who requested its services.

"It was not my idea," Parnham said. He and attorneys Wendell Odom and Daucie Shefman were donating their time on the case, he said.

The strain on his smaller law firm is much greater than it would be on Arnold & Porter. "I don't have a 700-member staff to devote to this issue," he said.

The court probably rejected his request to be replaced because it was filed so late and the court was concerned that new attorneys would lack the time to properly prepare, Parnham said.

[...]

The appeal focuses on Dietz's testimony under cross examination in which he mentioned an episode in Law and Order.

Dietz testified that the episode portrayed a woman who drowned her children and was acquitted by reason of insanity, the same defense Yates used.

A prosecutor said during his final argument that the episode inspired Yates to drown her children as a way to end her marriage.

After Yates was convicted, it was discovered that no such episode had been broadcast. Jurors were told about the incorrect testimony before the trial's punishment phase began.

A Harris County grand jury declined to indict Dietz on perjury charges.

The appeal alleges that the trial court should have declared a mistrial when the judge learned about the incorrect testimony and that the false testimony violated Yates' constitutional right to due process.

It also alleges that Yates was denied equal protection under the law "because the Texas sanity standard fails to recognize the biological reality that no man can suffer from postpartum psychosis because no man can bear a child."

Parnham called the standard "gender-based discrimination."

Another Texas law challenged by the appeal prohibits jurors from being told the consequences of an insanity verdict.

"It permits a jury to think that (Yates) can walk out the door and ride down the elevator to freedom" if she were declared not guilty by reason of insanity.

Parnham wanted to tell the jury that such a verdict would mean treatment at a mental facility and not automatic release.

The appeal also said the trial court should not have allowed articles of the children's clothing and photos of children in the morgue and the crime scene to be shown to the jury because they were prejudicial.

It has been my belief all along that Andrea Yates is not evil but ill, and that no one's interests are served by having her in a regular prison. As such, I hope that she is granted a new trial by the appeals court. Stay tuned.

Putting your principles into action, the hard way

From the WaPo's Reliable Source column:

A Different Kind of Joint Session

• Last week the Capitol Police busted a young intern working for Rep. Ron Paul (R-Tex.) for toting a baggie of pot and a bong into the Cannon House Office Building

The bit goes on to talk about one of the seven (!) people in America who have legal access to medical marijuana (no, I didn't know there were any, either), but the reason I blogged this was simply to say that there's something just so right about an aide to a former Libertarian Party Presidential candidate getting busted for bringing pot (not to mention a bong) to work. I'll bet when he goes for a smoke break, people go with him. Via Rob.

Super Bowl streaker wants trial

I'm trying, I'm really trying, not to make a joke about what a jury of his peers might look like:

With more than 70,000 witnesses, it will be hard for Mark Roberts to claim innocence.

But the 39-year-old Briton, also known as "the Super Bowl streaker" since he darted across the Reliant Stadium field wearing nothing but a thong on Feb. 1, plans to take his misdemeanor case to trial.

Roberts, of Liverpool, England, was in Houston on Thursday as his June 21 jury trial was scheduled on a charge that could land him in the Harris County Jail for up to 180 days if he is convicted.

He acknowledges walking past multiple layers of security before sprinting onto the field, where he tore off a phony referee's uniform to reveal an online casino ad painted on his skin.

But Roberts insists he had no idea that running onto the field was prohibited.

"He is charged with criminal trespassing, not streaking," said his attorney, Sharon Levine. "The way the law is, you are entitled to a warning."

New England Patriots linebacker Matt Chatham knocked Roberts off his feet, and police carried him off the field.

Six Harris County jurors will hear the case before Criminal Court at Law Judge Diane Bull.

"The main issue is for us to separate out what his action was on the field and get to whether he actually violated criminal trespass," Levine said.

Roberts claims to have streaked more than 300 times. He has criminal cases pending in England and Paris, according to his Web site.

In other news, Governor Perry's office has strenuously denied that they are considering adding a "streaking tax" to their list of school finance reform proposals.

Choose the voices in your head wisely

I'm reading this article about the differences between Andrea Yates and Deanna Laney, and my jaw is still hanging open after finishing this section:

Dr. Park Dietz, the nationally noted psychiatrist who testified that Yates knew her actions were wrong and therefore wasn't insane under state law, testified last week that Laney was a "textbook" case of insanity.

He concluded that psychotic delusions made Laney incapable of knowing right from wrong during the killings -- the legal standard in Texas for insanity.

Dietz called Laney's description of her actions "the most consistent accounting" he had ever seen in more than a thousand criminal insanity evaluations.

"This is not like the criminals I generally get to see," he said.

Dietz considered the sources of Yates' and Laney's promptings to kill in determining whether they knew right from wrong. With Laney, it was God. With Yates, it was Satan.

Dietz testified that Laney, who interprets the Bible literally and believes that God is infallible, believed she was right to kill her children because God would never order her to do wrong.

But he concluded that Yates must have known murdering her five children was wrong if Satan ordered her to do it. He also saw Yates' attempts to conceal her murder plans as a sign that she knew it was wrong.

Wow. Just wow.

I know we're talking about legal insanity here, which is not the same as mental illness. I still have a hard time believing that the identity of the voices in these poor women's heads could be a determining factor. David Berkowitz claimed to be taking orders from his neighbor's dog. Where would that have fit in Dr. Dietz' spectrum?

I just don't know what to say any more.

UPDATE Ginger notes that she called this in the comments here. Obviously, I was too gobsmacked to remember that.

Deanna Laney acquitted

Deanna Laney, the East Texas woman who stoned two of her sons to death and injured a third, was found not guilty by reason of insanity on Friday, meaning that her jury found her to be not quite the same as Andrea Yates, for whatever the reason. Jeralyn spots a reason that I didn't know about.

Deanna Laney was tried by a Tyler, Texas jury that was not qualified as a death-penalty jury because the state didn't seek the death penalty in her case. Andrea Yates' jury was a death-qualified jury. Studies show that death qualified juries are more likely to convict in the guilt phase. We think it's likely death qualified jurors are also less likely to find a defendant not guilty by reason of insanity.

Another reason to thank our DA, Chuck Rosenthal.

For those of you who think that Mrs. Laney is getting a free pass, look again.

State law allows Laney to be committed to a maximum security state hospital. Medical evaluations will dictate when she will be released. She will remain at the Smith County Jail until a hearing regarding her transfer.

She'll be locked up, possibly for the rest of her life, until she is deemed to be fully cured of the mental illness that drove her to commit this horrible crime. Not a fate that I'd want awaiting me.

Park Dietz, man of opinions

I haven't really been following the trial of Deanna Laney, the East Texas woman on trial for killing two of her children by stoning them to death (a third child survived), but I did notice that everyone's favorite professional witness, Dr. Park Dietz, had made an appearance.

"In a series of experiences she came to believe God told her to kill her children," Dietz said. "She was able to give detailed information on how god told her to kill her children."

That detailed information was shown in a nearly hour long video tape of Dietz interview with Laney. It was the jury's first chance to hear from laney herself. While the video played for the jury, Laney sat staring into her lap, quietly crying. After the tape, lead defense attorney Buck Files tried to drill home the point that Dr. Dietz has never waivered in his findings.

"Do you have an opinion as to whether or not on may 10, 2003 that Deanna Laney, did not know that her conduct was wrong?" Files asked.

"I do have an opinion," answered Dietz.

"What is that opinion?" asked Files.

"It's my opinion at that time, because of her severe mental disease, Mrs. Laney did not know that her conduct was wrong," concluded Dietz.

Despite the fact that Dr. Dietz was hired by prosecutors for this case, District Attorney Matt Bingham almost seemed to spar with him a little on his answers.

"So then your conclusions are absolute?" Bingham asked. "She was absolutely insane?"

"Whether she was insane is for the jury to determine," answered Dietz.

"The point is, here's a lady that's killed two of her kids and injured a third. You cannot sit on that stand and say absolutely that she did not know her conduct was wrong," commented Bingham. "You can say in your opinion, but not absolute."

"It is my opinion," answered Dietz."

I would dearly love to know what distinguishes Deanna Laney from Andrea Yates in Dr. Dietz' mind. Maybe there is a crucial distinction that I'm missing, I don't know. But I sure would like to know.

This Tyler Morning Telegraph article does a really good job of covering the history and debate over Texas' oft-reviled insanity defense law. Andrea Yates makes an appearance here as well.

George Parnham, Mrs. Yates' defense attorney, has become one of Texas' most outspoken critics of the state's insanity standard. He argued that Mrs. Yates became psychotic as the result of postpartum depression, and thought killing her children would save them from Satan. He says he has spoken to F.R. "Buck" Files, Mrs. Laney's defense attorney, but is not part of the defense team.

"We go back to the word 'know,'" Parnham says. "Does 'know' mean a perception on the part of the sick person that society would view her actions as being illegal or wrong, but she knows them to be right? The danger is that what we do with our (Texas) standard is impose our own logic - our own logic that is unfettered by mental disease. If you're psychotic, you live in a different real world."

Parnham says that in a "utopian atmosphere," mentally ill killers could get treatment without a jury trial. "But I don't know if we're ever going to reach that," he says.

Not in my lifetime, I expect.

One last thing, from the Chron story about the Laney trial:

Prosecutors have struggled to discredit their own psychiatric witnesses to prove that Deanna Laney knew her actions were wrong and is guilty.

Above all, they tried to convince jurors that regardless of whether Deanna Laney believed she was doing right by God, she had to have known she was doing wrong by state law. Her first call, prosecutors pointed out, was to 911 to summon authorities.

Andrea Yates also called 911. Once again I ask: What's the difference between these two cases?

Calvin Murphy charged

I'm in shock.

Hall of Fame basketball player and Houston icon Calvin Murphy was charged Monday with sexually molesting five of his daughters more than a decade ago.

Murphy, a television commentator for the Rockets, surrendered to authorities after being charged with three counts of aggravated sexual assault of a child and three counts of indecency with a child, said Lance Long, a Harris County assistant district attorney.

The charges involve five grown daughters who said Murphy sexually abused them between 1988 and 1991, when they were under 17, according to an affidavit by the Texas Rangers.

[...]

"He adamantly denies the charges," Hardin said. "We've investigated these charges for a couple weeks and we are just as convinced it did not happen as the district attorney's office is that it did."

Hardin said Murphy is "absolutely devastated" by the allegations because "he spent his whole life in the public arena and he knows people are going to assume it's true." Hardin said he wished the charges had been presented to a grand jury.

Hardin said the allegations are an attempt to get back at Murphy because he wouldn't give the women money. He said that three daughters wanted retirement money their mother left to Murphy after she died in a car accident. Hardin also said that because of past financial troubles Murphy doesn't have the financial means people assume he has.

[...]

If convicted of the charges, Murphy faces five years to life for the aggravated offenses and two to 20 years for the indecency violations, Long said. Because Murphy doesn't have a criminal history, he could also be eligible for probation if he's convicted, Long added.

District Attorney Chuck Rosenthal said late Monday that Murphy may also face additional charges, but he did not elaborate.

Long would not reveal the origin of the investigation, which he said had been ongoing for several weeks.

Hardin said Murphy, a Sugar Land resident, cooperated with the investigation and that he even escorted witnesses to the district attorney's office for questioning. Hardin said many witnesses, including one of the daughters named in the charges, told authorities the alleged abuses didn't occur.

Hardin questioned why the women are only coming forward 13 years after the most recent incident was alleged to have happened.

I don't know what to say. Whether the charges are true or Rusty Hardin's counterallegation that this is some kind of extortion scheme is true, it's horrible either way. I just hope that justice is done in the end.

Tulia prosecutor may face sanctions

This seems appropriate to me.

State Bar of Texas officials announced Tuesday they will file a lawsuit seeking sanctions against the prosecutor from the controversial 1999 Tulia drug bust.

The case against 64th District Attorney Terry McEachern will be heard in a Panhandle district court and could result in anything from a public reprimand to McEachern losing his law license if convicted, according to Dawn Miller, chief disciplinary counsel with the State Bar of Texas.

The case is in a sort of legal limbo between the previously secret State Bar investigation and the upcoming public trial, so Miller was limited in the amount of information she could provide about the matter.

"Without going into any details, you can assume that if a case has gotten to a point where a lawyer has elected to have the case heard in district court, that means an investigative panel of a grievance committee found just cause to believe a lawyer had committed misconduct," Miller said.

McEachern said he could not comment about the suit due to secrecy rules, but he still believes in the cases he prosecuted.

"I still feel the same way I did back then," McEachern said. "Of course, looking back, I would have done some things differently. But it's easy playing Monday morning quarterback."

[...]

The action against McEachern is still secret enough that Miller could not confirm it was related to Tulia, but it has been public knowledge since August that McEachern was fighting a State Bar grievance in the Tulia matter.

McEachern's opponents have said he unethically withheld evidence about misdeeds in Coleman's background during the trials, a charge McEachern has repeatedly denied.

Miller said most State Bar grievances are worked out through an agreement with the attorney and the grievance committee. With no agreement, McEachern chose to go with a civil suit in district court, rather than a hearing in front of the grievance committee.

State Bar attorneys will file suit with the Texas Supreme Court in the next couple of weeks, Miller said.

The high court usually takes about two months to assign a judge from outside the district, then the case will be filed in McEachern's home county, meaning Swisher or Hale counties.

A trial will be conducted in which the judge or a jury, if requested, will decide if a preponderance of the evidence shows McEachern committed misconduct.

If the answer is yes, the judge will then decide what sanctions to hand down.

It should be noted that Terry McEachern has already lost his job, as voters turned him out in the Republican primary last month. If he's cleared of these charges, then I'd say that's enough, but if not, losing his law license is a small price to pay.

McEachern does get some sympathy from a somewhat unlikely source.

Amarillo lawyer Jeff Blackburn said he and his fellow lawyers were seeking to clear their clients not to personally harm anyone from the other side.

But Blackburn said the trial could have a positive outcome if it results in a reaffirmation of the ideal that district attorneys must not yield to public pressure to secure convictions at all costs, even in a part of the state where people believe deeply in law and order.

"Prosecutors are charged under our laws with seeking justice, not just convictions," Blackburn said. "One of the problems in Tulia was that this law was broken and that the prosecution just got caught up in the desire to convict.

"On the other hand, I understand the pressures somebody like Mr. McEachern comes under. But a lot of times, the district attorney has to be the person who stands up for the law and against popular sentiment."

That's a more generous response than what McEachern got from his county commissioners.

Embattled district attorney Terry McEachern asked the Swisher County commission for help fighting a State Bar of Texas grievance Thursday, but county officials said they had to turn him down.

Swisher County Judge Harold Keeter said McEachern requested a special session Thursday to ask the commission to help pay for the legal cost of fighting a grievance based on McEachern's role in the controversial 1999 Tulia drug sting. The board voted unanimously to deny the request.

"This is strictly a personal grievance against the district attorney and his law license," Keeter said. "It's not directed at Swisher County. We have no standing in the grievance and no stake in it."

That article has a bit more on the specific charges McEachern is likely to be facing, based on the findings of fact by visiting Judge Ron Chapman, who recommended that all of the convictions be vacated back in May:

The findings of fact allege McEachern committed the following questionable acts:

- The state knew or should have known at the time of the trials Coleman "had a reputation for dishonesty, for disobeying the law, and for abdicating his duties and responsibilities as a peace officer in multiple communities."

- The state "did not disclose to defense counsel that Coleman committed crimes of dishonesty in Cochran County, namely theft and abuse of official capacity."

- McEachern in several trials made statements about Coleman's record to the jury that would tend to bolster the agent's credibility when McEachern knew Coleman had been indicted on charges from Cochran County.

- At the trial of William Cash Love, McEachern said he was willing to sign an affidavit that he did not know about Coleman's charges prior to that trial. McEachern then said in an affidavit preceding the findings of fact he knew about Coleman's arrest before any of the arrests happened in 1999.

Like I said, if he's found guilty, merely losing his license is a small price to pay.

Final settlement in Tulia lawsuit near

Now that the city of Amarillo has reached a $5 million settlement agreement in the federal lawsuit filed by the unjustly imprisoned Tulia defendants, a group of other counties and cities in the Panhandle are close to negotiating their own settlement.

Sources near the negotiations have indicated the remaining 30 counties and cities named in the federal lawsuit likely will settle for substantially less than the $5 million Amarillo paid last week for its part in the suit.

Several sources with varying degrees of involvement in the negotiations have confirmed that the overall settlement for all the remaining municipalities combined is in the area of $1 million. Counties and cities would pay amounts ranging from a few thousand dollars to tens of thousands of dollars under the agreement, which has not been finalized.

Attorneys from both sides of the suit said they couldn't talk about the details of the negotiations, but they confirmed talks were ongoing.

"We are continuing to negotiate, and we hope we can reach a settlement," said Amarillo attorney Jeff Blackburn, who represents the Tulia defendants. "We're eager to settle this case so that the entire Panhandle can put this nightmare behind them, like Amarillo did last week."

The settlement, if finalized, would bring an end to a federal lawsuit that was filed in connection with the controversial 1999 Tulia drug bust.

Again, I'm glad to see this get resolved. Just for the record, for the 44 Tulia defendants who are plaintiffs in this lawsuit, I figure after attorneys's fees and whatnot, they'll net about $10,000 each. Before anyone complains about lawsuits and the taxpayers footing the bill and so on, ask yourself a simple question: Would you willingly go through what any of those 44 people went through in return for ten grand? The people responsible for this debacle got off very, very cheaply.

Here's a look at how the city of Amarillo will pay its share of the settlement.

The $5 million payment to settle Amarillo's liability in the Tulia drug sting won't receive official approval from the Amarillo City Commission.

The commission gave city attorneys authority to reach a settlement amount on its behalf, and a 1987 ordinance gives a committee of department heads the authority to administer the payment.

State law requires the city commission to approve bid contracts of $25,000 or more, but that standard doesn't apply to the $5 million settlement, a different kind of transaction altogether.

The settlement will be paid as an insurance claim, and potentially all of it will come from the city's risk management fund, the fund through which the city insures itself for liability claims.

The ordinance creating the fund authorized a risk management board to administer the claims, which usually are too routine to need city commission attention. That board's authority applies even in the case of an exceptionally large claim such as the $5 million Tulia lawsuit settlement.

[...]

Briefing the commission also was appropriate because the settlement amount was likely to be greater than $50,000, said City Manager John Ward, also a member of the risk management board. That dollar amount is a benchmark, Ward said, for when the board would bring a pending insurance-fund claim to the commission's attention.

But even though the Tulia settlement amount would dwarf all other insurance claims the city has paid in the past 12 years, the commission still didn't have to take official action because it wasn't required by the ordinance that created the risk management fund. Nor would such action have been practical, Ward said.

When the commission gave authority to its lawyers before the mediation, the settlement amount wasn't known, so it couldn't have approved an amount, Ward said. And after the mediation, the judge wouldn't have been receptive to the city changing its offer.

"You could stick these settlements on (the commission's) agenda and they rubber-stamp them, but it really serves no purpose because it's too late to vote against it," Ward said. "The city is committed."

In the case of Tulia, however, the commission will conduct one vote related to the $5 million settlement. The risk management fund's ordinance limits aggregate payments for general liability to $3 million per year. So the commission on Tuesday will consider granting the program some kind of flexibility so the payment can proceed, Ward said.

Among the commission's options are to amend the ordinance so that it allows for certain exceptions to the limitation, or to authorize a one-time exception in this case alone, Ward said.

The fund may not even have to pay the full $5 million for the Tulia settlement. The city is exploring options to supplement self-insurance funds with money seized by the task force that was involved in the sting.

But using those funds depends on state approval, Ward said.

I can't think of a more appropriate use for that money than to help pay the settlement to the victims. Let's hope newly elected State Senator Kel Seliger brings this up at his first opportunity. Feel free to drop him a line or give him a call at one of his offices and encourage him to do so.

Settlement in Tulia civil suit

All of the still-living Tulia drug bust defendants will share in a $5 million settlement of a civil suit against the city of Amarillo. Amarillo also agreed to disband the multi-agency task force that oversaw Tom Coleman, the lying undercover cop whose uncorroborated testimony was enough to put nearly all of the accused in jail.

"There's no amount of money that could ever compensate the people in Tulia," said attorney Jeff Blackburn at a news conference announcing the settlement. "In our view this was a whole systemic failure."

The agreement with the city of Amarillo disbands the multi-agency task force that oversaw the sting's undercover agent, Tom Coleman, who is white, Blackburn said.

"The law on who is responsible for the task force is very unsettled and the city could not risk a $30-, $50- or $100- million dollar judgment," said Marcus Norris, Amarillo's city attorney.

On July 23, 1999, 44 people -- 37 of whom are black -- were arrested in the busts, which civil rights groups claimed were racially motivated. Coleman worked alone for 18 months and used no audio or video surveillance. Little or no corroborating evidence was introduced during the trials.

Though the settlement involves a civil rights lawsuit filed last summer by Zuri Bossett and Tonya White, two women whose drug charges were dropped after they provided alibis, all but one of the 46 arrested will receive some portion of the settlement. One defendant died before going to trial and is not included in the settlement, Blackburn said. A claims administrator will determine how the funds will be apportioned, taking into account factors like the amount of jail time served.

Norris, who called the settlement the responsible thing to do, said that the city recognizes the "misjustice" done in Tulia by the task force.

"The courts simply have not dealt in a definitive way with who is responsible for a task force operation," said Mike Loftin, an attorney hired to help the city defend itself.

In a move that Norris said is "connected" to the settlement, Amarillo police officers Sgt. Jerry Massengill and Lt. Mike Amos, two of those who had supervised Coleman, will retire before the end of the year.

[...]

The women's suit was filed Aug. 22, the same day Gov. Rick Perry pardoned 35 prosecuted in the Tulia cases. Those 35 defendants spent a combined 80 years in jail.

Norris said that Perry's decision to pardon those cases "had a direct impact on our ability to defend the case."

Following evidentiary hearings in which a judge pronounced Coleman "simply not a credible witness under oath," Swisher County officials approved a $250,000 settlement for those imprisoned on Coleman's word. In exchange, those defendants promised not to sue the county. Bossett and White did not receive any of the settlement because their charges had been dropped.

Coleman is scheduled to stand trial May 24 on perjury charges related to testimony he gave during evidentiary hearings in March 2003.

Good for the city of Amarillo for recognizing that the right thing to do was also the smart thing to do. If this has a chilling effect on enthusiasm for that kind of massive anti-drug task force, so much the better.

Yates followup

I always find it difficult to read articles about Andrea and Rusty Yates and their children. This is no exception.

It's been almost three years since [Andrea] drowned the boys and 6-month-old Mary in the bathtub in their home. Interviews with people close to the convicted murderer reveal that her life has become a hazy blend of grief, tedium, mental illness. Rusty says he feels as if he's imprisoned, too.

Supporters say she should be detained in a psychiatric hospital, not a prison.

Those are fighting words in Houston, usually comfortable with its Wild West approach to crime and criminals. The Yates case, however, is different. Defense lawyers are pushing for a new trial, the case still is a cause célèbre among mental health advocates, and local debate is as divisive as ever.

One camp sees Andrea, 39, as a cold-blooded murderer. What could be worse, they ask, than a mother who holds her children, one by one, facedown in a tub until they quit struggling? She deserves her life sentence, they say.

Kaylynn Williford, one of the assistant district attorneys who prosecuted the case, thinks Yates deserves to be executed.

"If Andrea Yates had been a man, the public reaction would have been very different. Here were five beautiful children who didn't get a chance to grow up, five beautiful children who didn't want to die. Think about the fear those children went through at the hands of their mother -- the one person they expected to defend them."

First of all, it's bad enough that non-Texan reporters, whose impressions of this state are still apparently colored by the TV show Dallas, make Wild West references. It's beyond annoying when a Chron writer reaches for that tired stereotype.

Second, I continue to hold our DA's office in contempt for their treatment of Andrea Yates. If this woman isn't mentally ill, then the concept has no meaning. Justice isn't only about maximizing punishment.

[The possibility that] all Houstonians bear some responsibility for Yates' crimes is discussed in Suzanne O'Malley's new book, Are You There Alone? -- The Unspeakable Crime of Andrea Yates.

The book was a sore point with some of Andrea's family members. Rusty Yates said he has found a few errors but generally is satisfied with O'Malley's work.

Small wonder, Andrea's immediate family thinks. Rusty, 39, is painted in a flattering light -- devoted husband, devoted father, devoted nurse to Andrea.

The Kennedy family believes Rusty and his decisions about how they would live are at least partly responsible for Andrea's downfall. Rusty was the one who met traveling evangelist Michael Woroniecki, admired his message and introduced him to Andrea. Though the two men have had a falling out, it's widely believed that the itinerant preacher inadvertently supplied Andrea with the framework for her psychotic delusions.

She told her doctors she believed Satan lived within her, her children were going to hell and she had to kill them while they were young so God would accept them in heaven.

Rusty, the leader and authority figure in the Yates household, is commonly blamed for other decisions -- such as to home-school the children or live in a converted bus -- that made life more difficult for Andrea.

At times Rusty is bitter about the criticism he has received from near and far. He was a devoted nurse. He desperately wanted his wife to get well. Early on, he was ignorant about her mental health problems, but most Americans are slow to recognize the signs and symptoms. He tried to work and juggle his responsibilities to Andrea and the children. That he couldn't do everything and be everywhere was no surprise.

Incompetent doctors, insurance companies more concerned about the size of the bill than the quality of treatment, a legal system seeking an eye for an eye -- those are the villains in the Andrea Yates story, he said, not him.

Publicly, the Kennedy and Yates families try to maintain a united front for Andrea's sake.

Rusty's a hard guy to sympathize with. Maybe he's not as bad as the media coverage has made him out to be, but it's difficult to avoid the conclusion that his lifestyle choices were major factors in Andrea's descent. Still, he's the one who has to face the public and go on with life. I surely don't envy him that.

While Rusty throws himself into his job at NASA, he ponders what to do with his personal life. He tries to get organized. He works on his Web site.

A while back, Yates sold the family Suburban and bought a Suburu. He moved into an apartment and fixed up the family home on Beachcomber to sell.

It's still on the market. He says, wistfully, that another family may buy it and establish happy memories there.

He wants to be involved in the Yates Children Memorial Fund for Women's Mental Health Education, launched by the Mental Health Association of Houston and [defense attorney George] Parnham after the trial. The idea, Rusty said, is to educate new mothers about postpartum illnesses and to make sure his babies didn't die in vain.

"What happened in my family will always be with me and associated with me," Rusty said. "But I would like people to know we had a great family. I'd like people to know something good can come from all this, and I want to be a part of it."

Whatever else one may think of Rusty Yates, the Yates Children Memorial Fund for Women's Mental Health Education sounds like an unmitigated boon. I wish him a lot of success with that.

DUI plateau

The number of alcohol-related traffic fatalities has stopped dropping over the past few years. Bad news, right? Well, let's take a closer look.

Alcohol-related traffic death rates increased or held steady in 19 states between 1998 and 2002, according to new federal data suggesting that efforts to curb drunken driving have reached a plateau.

The National Highway Traffic Safety Administration's report, which was being released Thursday, calculated the fatality rate per 100 million miles driven. NHTSA considers a crash alcohol-related if a driver had anything above a 0.01 blood-alcohol level, which is far lower than the 0.08 legal limit in 45 states.

[...]

Drunken driving deaths declined markedly during the 1980s and early '90s as organizations such as Mothers Against Drunk Driving were formed and drew attention to the problem.

NHTSA's report showed 26,173 alcohol-related traffic deaths in 1982, or 60 percent of all traffic deaths, falling to 16,572, or 40 percent, in 1999. For 2002, the figures were 17,419 alcohol-related deaths, or 41 percent of all traffic fatalities.

"We seem to be stalled or stuck at relatively the same fatality rate," said Dennis Utter, the chief mathematician for NHTSA's National Center for Statistics and Analysis.

First of all, just looking at the absolute number of fatalities is going to mask the overall trend. There are a lot more people in the US now than there were in 1982, and I'd be willing to bet that the average amount of time spent in a vehicle per person has also inched upwards over that time span. If you were to normalize the data over road-hours or road-miles, I bet the drop would be even more dramatic since 1982, and would also probably give you a slight decline since 1998.

Secondly, unless you're going to claim that a blood-alcohol level of .01 makes a driver impaired, then the truly relevant datum is the number of fatalities which involved actual, illegal DUI. Really, only those cases where the impaired driver was actually at fault matter. Again, I'm willing to bet that this number has declined more dramatically since 1982 and may still be declining gently since 1998.

Finally, we should all be wary of reports like this where the true nature of the data is obfuscated because they can and often are used as a starting point to crack down on the behavior in question. There's a point at which harsher treatment of DUI will produce minimal decreases in the fatality rate but a significant increase in traffic stops and other police activity. We need to recognize that there will always be some people who drive drunk, and they will do so regardless of the penalties for doing so - after all, people still commit murder despite the widespread usage of the death penalty. If we're doing everything we reasonably can do - and I think we're pretty close to that here - then we should be celebrating victory rather than lamenting defeat.

Not the kind of buzz they're talking about

All right, I can't stand it any more. I've come across the story of Texas' notorious Felonious Sex Toy Selling Housewife too many times to not comment on it. As there really isn't much one can actually add to a story of this magnitude, I'd like to help clarify a bit of Texas law, for those of you who are confused as to why this woman was even arrested. Here's Molly Ivins to explain it to you:

[If] you own six or more dildos in this state, you are a felon, presumed to have intent to distribute. Whereas if you have five or fewer, you are merely a hobbyist.

Hope that helps. Original link via Atrios, Grammar Police, Hope, who has some other useful tidbits for you aspiring vibrator salespeople in Texas (and you know who you are), Morat, Byron, UncleBob, and pretty much every other wisenheimer on the Internet.

UPDATE: Since Eugene Volokh mentioned it, here is the relevant definition:

§ 43.21. Definitions

(a) In this subchapter:

(1) "Obscene" means material or a performance that:

(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

[...]

(7) "Obscene device" means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.

Yes, you can actually search the Texas statutes for the word "dildo" and get a hit. We truly do live in a great state.

And the criminal act itself:

§ 43.23. Obscenity

[...]

(f) A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same.

The very next subsection provides some good news for our defendant:

(g) It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.

I'm thinking "medical" or maybe "psychiatric" here. Now if they can just arrange to have Chuck Rosenthal argue the state's case when it gets appealed to the Supreme Court, they'll be set.

I'm glad you see it that way now, but...

On the one hand, I suppose I should be glad that one of the prosecutors in the Andrea Yates case is now telling health care professionals that Yates was very, very sick when she killed her children.

Andrea Yates had one last chance to recover in time from the postpartum depression that had tortured her for years, one of her prosecutors said Tuesday.

But Yates lost that chance when she was released from a hospital in League City, while she was dangerously delusional, Joseph S. Owmby told the 2003 Child Abuse Conference at the Holiday Inn Riverwalk.

Owmby, a Harris County assistant district attorney who helped prosecute Yates for capital murder last year, told the group of about 200 area mental health and law enforcement professionals that had Yates received more hospital treatment for her depression and psychosis, she probably wouldn't have murdered her children.

The psychiatrist who treated her at the hospital, Dr. Mohammad Saeed, testified that he decided to take Yates off her anti-psychotic medication and testified that he saw no evidence she was psychotic when he examined her on June 18, 2001, two days before she drowned the children.

What happened two weeks after Yates' release is a frightening example of how postpartum depression and psychosis can lead to severe child abuse, Owmby said.

On the other hand, I have to ask: Where the hell was this kind of thinking in the Harris County DA's office last March? These guys asked for the death penalty, though they didn't push it very aggressively in the punishment phase. As if life in prison is what such a dangerously delusional person needed.

Here's a quote from a rant by Chron Editorial Board member James Gibbons after Andrea Yates was sentenced, in which he notes that Yates seems to be the only person capable of distinguishing between right and wrong, which was the determining factor in her being found legally sane:

The Harris County district attorney, Chuck Rosenthal, parades around with a "What would Jesus do?" bracelet on his wrist, but his reflex action was to seek the death penalty for a woman who suffers acute psychosis. He's too clueless to see the contradiction.

Obviously Rosenthal is too impaired to know right from wrong. It would be a healthy start if the district attorney would give some indication he could distinguish the crucified from the crucifiers.

The defense and prosecution agreed Andrea Yates was psychotic before she killed her children and was psychotic afterward. But the prosecution alone maintained that Yates suddenly became sufficiently sane while she was performing her tragic acts - sane enough to control her actions - to justify her execution or life imprisonment. The jury preferred to give her life in prison.

Setting aside right and wrong, anyone who would give credence to this theory of temporary sanity - and every man and woman on the jury did - obviously has difficulty distinguishing fact from fiction and the plausible from the implausible.

In his closing argument, prosecutor Joe Owmby contended that Yates had the civic duty to seek help from the clergy as an alternative to murder. People who actually believe patients with the most severe mental illnesses have a duty to identify and seek out the help they need cannot be relied on to know the difference between right and wrong.

I know that "insanity" is a legal definition only, but I still have a hard time believing that anyone could take more than a cursory glance at the facts of the Yates case and not conclude that the woman was sick and not evil. Chuck Rosenthal, like his predecessor Johnny Holmes, is fond of saying that he doesn't write the laws, he just enforces them. Well, there's such a thing as prosecutorial judgment, and I believe it was a serious lapse of judgment that led him to go to trial, even if the state wound up "winning". I agree that ultimately, it's the Lege's responsibility to fix the underlying problem of our draconian insanity law, but that still doesn't absolve Rosenthal for his role in this travesty.

Looking back, I see that when I first wrote about the Yates trial, I was a lot more ambivalent than I am now. I can't point to any one reason for my shift in opinion - in retrospect, I think I was trying a little too hard last year to see things from the prosecution's perspective. I think my hypothetical question ("If Yates' erratic and ultimately lethal behavior had been caused by a brain tumor, would you feel differently about her?") is still one that's worth contemplating.

"In your jobs, you have the opportunity to see women suffering from postpartum mental illness and to get them the proper treatment they and their families deserve," Owmby said.

May I suggest to you, Joe Owmby, that people with your job sometimes have that same opportunity as well.

Matthews indicted and arrested

The grand jury which heard evidence in the indecency with a child case against local conservative talk show host Jon Matthews returned an indictment against him. Matthews was arrested and released on a personal recognizance bond and is now awaiting trial.

The indictment, which was unsealed Wednesday after Matthews was arrested, alleges Matthews knowingly and intentionally exposed his genitals to a girl under the age of 17 on Oct. 9.

"The indictment alleges there was exposure but not contact with the child," Fort Bend County District Attorney John Healey said.

The conservative talk show host, who also writes a column for a Fort Bend weekly newspaper, was taken into custody by Sugar Land police about 3 p.m. and driven to police headquarters. He was transferred to the county jail in Richmond, where he was released on a $10,000 personal recognizance bond.

Matthews, 59, made no statements to reporters as he left the jail Wednesday evening. His attorney, Stephen Doggett, also declined to comment.

Matthews has resigned from KSEV and hasn't submitted a column for publication in the Fort Bend Southwest Star since the investigation began. He's still got an issue hovering over his head from that.

Matthews, who served in the U.S. Marines, usually wrote about Fort Bend County issues, often railing against local school district officials whom he dubbed "educrats."

Matthews' column also led to a libel suit filed against him last year by former Sugar Land Mayor Dean Hrbacek.

The suit claims Hrbacek's reputation was damaged by Matthews, who called Hrbacek "Mayor Osama" and "Dean Osama Hrbacek," in reference to the terrorist leader.

I'd guess that his current troubles outweigh that. As noted in the article, an indictment does not mean he's guilty. We'll see what a jury of his peers has to say.

Jon Matthews update

This is the first update I've seen on radio talk show host Jon Matthews' situation since the original story appeared.

RICHMOND -- Radio talk show host Jon Matthews appeared before a Fort Bend County grand jury Tuesday less than a week after the Sugar Land Police Department completed an investigation concerning him.

Matthews, 59, was the subject of a criminal investigation launched by police after they received an allegation about Matthews. Police have not publicly discussed the nature of that allegation.

After Matthews left the grand jury room, neither he nor his attorney, Stephen Doggett, would comment on the case. He appeared before the panel for about 90 minutes.

Afterward, the grand jury took a break and then Matthews' wife, Carolyn, spent about 40 minutes in the grand jury room.

Fort Bend County District Attorney John Healey said he could not discuss what happened during the hearing. Healey and four assistant prosecutors were in the room for most of Matthews' appearance.

The Fort Bend County grand jury seals indictments when the defendant is not in custody, so it was not immediately known if the grand jury issued an indictment.

Marshall Slot, a Sugar Land officer who worked the case, also appeared before the grand jury Tuesday.

The investigation is centered on an allegation made recently by a community member, police spokeswoman Pat Whitty said two weeks ago.

The Houston Chronicle requested a copy of the police report under the Texas Public Information Act. Sugar Land city officials want to keep the report confidential and have asked the Texas attorney general for a ruling on the matter.

During the investigation, Matthews has been off the air.

One way or another, we should know more soon.

UPDATE: This is not a forum for discussing the fate of Jon Matthews. Please take that discussion elsewhere. Thank you.

Enough of "get tough"

Seems we've finally found the cure for "git tuff on crime" syndrome: Massive state budget shortfalls.

Fourteen years ago, Maryland opened its ultramodern Supermax prison, a high-tech fortress to hold the "worst of the worst."

In contrast, a few blocks away stood the Maryland Penitentiary, a dark, gothic, castle-like structure built nearly 200 years ago when inmates were supposed to contemplate their sins in solitude and disgrace.

But when Mary Ann Saar, Maryland's secretary of public safety and correctional services, recently described a Maryland institution as so out of step with modern correctional philosophy that it ought to be razed, she was talking about Supermax.

"First of all, it's inhumane. Second, it has no program space," she said. "Nor can it be converted. It was built so hard, we can't change anything. We're talking about tons and tons of concrete and steel that would cost a fortune to dig into."

That kind of talk represents a dramatic change in thinking among corrections officials across the country. Squeezed by shrinking budgets and burgeoning numbers of inmates, states are moving away from the lock-'em-up-and-throw-away-the-key attitude of the 1980s and '90s and focusing more on drug and alcohol treatment, education and job training.

Saar describes Supermax as a relic of an era when rehabilitation programs behind bars were dismissed as coddling of criminals.

"In the 1980s, we began putting people away for a longer period of time, giving them less opportunities for drug treatment and education, and we abolished parole," said Saar, appointed by new Gov. Robert Ehrlich last January. "But, hey, has it worked? I think an honest person would have to say it hasn't worked."

Even Texas is starting to do this, something which I've advocated and continue to believe in. I don't know if this counts as an emerging meme or not, but I found a second, similar story when I went looking for that first one. Here's a great quote:

Even Alabama, one of the most conservative states, now has a sentencing commission that has made reform recommendations, which the Legislature has begun to enact this year.

"I've been in the attorney general's office 30 years," said Rosa Davis, the chief assistant attorney general in Alabama, "and we've been the 'lock them up and throw away the key' office. We're now learning the difference between being tough on crime and smart on crime."

All you Democrats out there, write that one down and be prepared to use it.

Catholic High School Girls In Trouble

Actually, it's more like Catholic High School Girls In Pursuit Of Vigilante Justice, as noted by Pete:

PHILADELPHIA, Pennsylvania (Reuters) -- A man described by authorities as a known sexual predator was chased through the streets of South Philadelphia by an angry crowd of Catholic high school girls, who kicked and punched him after he was tackled by neighbors, police said Friday.

Rudy Susanto, 25, who had exposed himself to teen-age girls on as many as seven occasions outside St. Maria Goretti School, struck again on Thursday just as students were being dismissed, police said.

But this time, a group of girls in school uniforms angrily confronted Susanto with help from some neighbors, police said.

When Susanto tried to run, more than 20 girls chased him down the block. Two men from the neighborhood caught him and the girls took their revenge.

As one of Pete's commenters noted, the beating he received most likely enhanced the experience for him. He may feel differently when the guys in his cell block hear about it, though.

Also noted by Atrios, who brings up the issue that vigilante justice is generally not a good thing. This is true, and there are good reasons to temper one's cheers for the girls, and particularly the neighbors who witnessed the beating. The possibility of the suspect pulling a knife or gun and defending himself, for example, should give pause. That said, it's hard not to empathize with victims who fight back. In the absense of any further evidence, I'll file this under Things I'm Not Too Worried About.

Jon Matthews off the air

Good grief, how in the world did I miss this?

Popular radio talk show host Jon Matthews is off the air and we've learned Sugar Land police are investigating him.

Houstonians have been listening to the conservative radio talk show host for more than 15 years. He's a former Marine with loyal listeners, but on Friday those listeners didn't hear him because his boss took him off the air.

"I think that was the best thing to do," said KSEV General Manager Dan Patrick.

Patrick yanked Matthews off the air after learning from Eyewitness News about the investigation and then speaking to detectives.

"I just told him, 'John, since there's an investigation going on, it's just not the wise thing for you to be on the air until all the facts are known'," said Patrick.

The Sugar Land Police Department would not talk about this case on camera, but they do say on the record that they're investigating Matthews after an allegation of indecency with a child. They are, however, reluctant to release any specifics.

Sugar Land Police Captain Mike Lund says, "We have an ongoing investigation and I'm not going to go there."

Matthews shut the door on us when we tried to talk to him on Friday. He wouldn't discuss the investigation. His boss hopes people will reserve judgment until the truth is determined by police or a jury.

"Let the investigation play out," said Patrick. "Let's see if there are any charges brought, if there are not. I don't know what else you'd like me to say."

Congressman John Culberson, who appears weekly on Matthews' show says he can't imagine the talk show host being involved in any indecency with a child. He said "I just can't even imagine…I refuse to believe it…It must be a mistake."

It's important to stress that at this time, Matthews has not been arrested or charged with any crime.

Via Atrios. Finding this story explains a comment that was left yesterday on an older post of mine, one which shows the type of discourse that Jon Matthews is famous for. I'll keep my eyes open for any updates on this.

UPDATE: Since everyone seems to be coming to this post via their Google searches, an update is posted here.

Grand jury examining Yates trial testimony

A Houston grand jury is looking into some erroneous statements made by Dr. Park Dietz, an expert witness for the prosecution during his testimony in the trial of Andrea Yates.

Nationally renowned for his work on cases such as those of serial killer Jeffrey Dahmer and Unabomber Theodore Kaczynski, Dietz was a key prosecution witness in Yates' trial. He was paid $50,000 for his services.

Shortly before the end of testimony, defense attorney George Parhnam asked Dietz, who is a consultant for the television drama Law and Order, about his work on the show.

Dietz told jurors that an episode about a mother who drowned her children and was acquitted with an insanity defense had aired before Yates killed her five children in the same manner.

In his closing arguments, prosecutor [Joe] Owmby implied that Yates had been influenced by the episode Dietz described, saying Yates saw the show as a way out of her trapped marriage.

The jury rejected Yates' insanity defense and found her guilty of capital murder. It was not until two days after that verdict that the defense learned that no such episode existed.

Defense attorneys and prosecutors, who said they learned of the mistake from Dietz after closing arguments, wrote a statement about the error that was read to jurors before they decided on Yates' punishment -- life in prison.

Since then, defense attorneys, on the Yates case and others, have questioned the nature and impact of Dietz's inaccurate testimony, which he and prosecutors have labeled as an honest mistake.

I'm willing to accept that this was an honest mistake by Dr. Dietz, and I'm willing to accept that he and the prosecutors did everything they could to notify the court once it came to light. I'm not willing to cut them any slack about it, and frankly I think it should be grounds to void her conviction. In Texas, to be acquitted on grounds of insanity, one must prove that at the time the crime was committed, the defendant did not know that what he or she was doing was wrong. It's a very tough standard to meet, and it's rarely successful. The prosecution used Dietz's false memory to help knock down the insanity defense, and I for one am willing to bet that this story did a damned good job of it. I hope the appeals court takes a very dim view of it.

That said, I have no clue, and the story gives no clear indication, why a grand jury is looking into this. I suppose a perjury charge against Dietz is one possibility, but beyond that I can't say. Any lawyers wanna speculate for me?

Perry pardons most Tulia defendants

Governor Perry has pardoned 35 Tulia defendants, which is mostly good news. I hate to poop on this, but there are a few things which trouble me:

Perry announced the pardons in the notorious Tulia case along with 25 others. In June he had signed into law a bill releasing those incarcerated in the Tulia busts, pending an appeal.

"Questions surrounding testimony from the key witnesses in these cases, coupled with recommendations from the Board of Pardons and Paroles, weighed heavily in my final decision," Perry said.

"Texans demand a system that is tough but fair. I believe my decision to grant pardons in these cases is both appropriate and just," he added.

Perry spokesman Kathy Walt, however, said the pardons granted were not based on a determination of innocence.

A full pardon does not have the legal effect of expunging a criminal record or of exoneration except in rare cases based upon innocence, according to the Texas Board of Pardons and Paroles. This means the Tulia residents will still have records that say they were convicted on the charges.

This leads to the question: what exactly do these pardons accomplish? I guess, though the story doesn't say, that this means the defendants, all of whom are now out of jail, will not be retried. That's a big deal, sure, but that felony drug conviction on their records is a pretty big deal, too. At least the pardon means they're now eligible to vote again. I'm still worried that having the conviction on their records will negatively affect their lives, though.

Walt said the governor's office reviewed each case individually and noted that there were three Tulia cases not eligible for pardons.

Two of those already had been dismissed while a third defendant, Lawanda Smith, had agreed to deferred adjudication, a form of voluntary probation.

Fourteen of those convicted in the Tulia busts had served up to four years in prison before their release was ordered in June.

Forty-six defendants, thirty five pardons, three ineligible for pardons. What about the other eight? Why weren't they pardoned? Again, the story doesn't say.

Don't get me wrong - I'm happy that Governor Perry took this necessary step. I'm just left with some questions that I'd really like answered.

Gary Gardner

There's a nice article in the Star-Telegram about Gary Gardner, one of the leaders behind the movement to free those who were wrongly convicted in the infamous Tulia drug bust. He's not who you'd expect. Check it out.

Tough times for Tulians

Now that 12 of the 14 remaining Tulia defendants have been released on bond, the other residents of the town are trying to deal with the town's negative image.

"It seems to me our community has gotten a pretty bum rap," said the Rev. Charles Davenport, pastor of the First Baptist Church.

He's lived here 29 years and is trying to figure out how a town few outside of West Texas had heard of until the pre-dawn moments of a fateful summer morning four years ago became an icon of racial bigotry.

Many here believe Tulia, like Jasper, got blamed for something it didn't do and are confounded by demands that it "repent" and mend its evil ways.

[...]

"It almost appears to some of us that the media has said that at some point the people here got together and said we want to send black people to jail," Davenport said. "This community didn't invite that sting. No one in this community knew it was going on until the arrests were made."

Davenport said he has seen little evidence of the kind of racial division that has been sketched in many news stories.

On Tuesday, he had lunch with a black minister to talk about the "healing process."

"We never came to a conclusion," he said, suggesting that neither knew where to begin in soothing a non-existent wound.

"The folks in our community would welcome suggestions," Davenport said. "What do they expect us to do."

The town's critics have pointed out that it wasn't just the ill-executed sting, but the harsh sentences meted out by local juries that reeked of racist injustice.

But Davenport, among others, pointed out that many of those seated to judge the defendants were not legal sophisticates.

"They had nothing to go on except what was presented to them by law enforcement and the district attorney, people they believed and trusted," he said.

I do think there's something to what the Rev. Davenport is saying. While it's fair to question the motives of the jurors who believed Tom Coleman despite a lack of corroborating evidence and in some cases the existence of exculpatory evidence, most of them are probably not guilty of anything more severe than excessive deference to authority. Primary blame for this fiasco attaches to Coleman, the sherriff (Larry Stewart) who hired him, the District Attorney (Terry McEachern) who prosecuted the cases despite knowing about Tom Coleman's history and not disclosing it to defense attorneys, and the judge (Edward Self) who presided over the cases and had to be removed from the appeals process because he sided with the prosecution. Whatever else you may think of the town of Tulia, these four people deserve the vast majority of your anger and scorn.

And let's not forget that Tulia is hardly an isolated case. Don't go telling me that somehow the "system" worked because these folks eventually got their freedom back. They're only free because of the tireless pro-bono work of their attorney, Jeff Blackburn, the media attention that reporter Nate Blakeslee and eventually NYT columnist Bob Herbert brough to the case, and a bill that was rushed through both state legislative chambers because two years could pass before the Court of Criminal Appeals hears the case. The system is broken, which is why these people were arrested and convicted in the first place and why heaven and earth needed to be moved to get them out. How many others, in Texas and elsewhere, are rotting in jail or sitting on Death Row because they don't have the same kind of attention paid to their cases?

I hope Tulia helps to shine a big bright spotlight on our criminal justice system and the so-called "War on Drugs" that has so thoroughly perverted it. Then and only then will I accept that some justice has been done here.

Diane Zamora gets hitched

After getting permission from the state, convicted murderer Diane Zamora got married today in a rare double-proxy ceremony to another inmate.

A judge in San Antonio performed the wedding ceremony in which Zamora's mother and a male friend stood in for the imprisoned couple, County Clerk Gerry Rickhoff said.

Zamora, who attended the U.S. Naval Academy, and ex-boyfriend David Graham, who was at the Air Force Academy, were convicted of capital murder in the 1995 slaying of 16-year-old Adrianne Jones of Mansfield.

Prosecutors contended that Zamora urged Graham to kill Jones after he had a purported one-time sexual encounter with her.

Zamora and Graham were sentenced to life prison terms.

Earlier this year, Zamora and Steven Mora wrote the county clerk office asking for permission to get a marriage license.

KDFW-TV in Dallas obtained a copy of the marriage certificate -- dated June 17 and issued by Bexar County -- naming Zamora, 25, and Mora, 27, of San Antonio.

Before anyone asks, there's no indication whether she will now call herself Diane Zamora Mora.

Tulia 13 to be released today

This is the best news you'll read today:

TULIA -- Forty months older and $70,000 poorer, Amarillo attorney Jeff Blackburn will stand in a courtroom here today and, at last, watch his pro bono beneficiaries -- 13 people imprisoned on questionable drug charges -- set free.

"There were plenty of times when I thought this day was never going to come," Blackburn said. "We fought a losing battle for two years. The only say we had was in the press."

At a hearing at 1 p.m. today, retired state District Judge Ron Chapman of Dallas is expected to release the defendants without bond until their cases are resolved by the Texas Court of Criminal Appeals.

[...]

The written record of the Tulia saga is packed with investigative abuse, prosecutorial obstruction, judicial inertia and no small dose of irony:

· Tom Coleman, the undercover officer whose uncorroborated testimony was the sole basis for dozens of convictions, has been discredited and is under indictment for perjury.

· Terry McEachern, who prosecuted the Tulia defendants and failed to disclose to their lawyers information about Coleman's troubled past -- Coleman was arrested for theft while conducting the sting operation -- was recently convicted of aggravated drunken driving in New Mexico and faces an uncertain political and professional future.

· Judge Edward Self, who presided over many of the cases, was forced to recuse himself after he expressed public support for the prosecutors after the trials.

[...]

One defendant proved she was in another state at the time Coleman alleged she sold him dope. Another was acquitted when his boss testified that he was at work when the alleged transaction took place (he later sued the county and settled for $30,000).

Despite the obvious flaws in the cases, Blackburn said, "our hands were tied at the appellate level."

"We were never able to effect anything meaningful," he said. "We had to go outside, to the press. I'm glad that we had the allies that we did. It would have been swept under the rug."

For the prosecutors, Blackburn said, Self's recusal and Chapman's appointment to hold the evidentiary hearings were "their Stalingrad."

Coleman is accused of lying during two days on the witness stand, and before the hearings were concluded, the prosecutors threw in the towel. They stipulated that Coleman was not credible and agreed that new trials should be granted.

However, the Court of Criminal Appeals did not respond to Chapman's recommendation.

This is a great achievement, and as far as I'm concerned, Jeff Blackburn is a hero. Keep in mind, though, that he couldn't have done this without publicity. How many other people are in jail unjustly because they don't have lawyers as tireless, resourceful, and good at getting the word out as Jeff Blackburn?

"Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings."

That's Tony Scalia's idea of justice. As long as that attitude prevails, there will always be Tulias.

UPDATE: As Daniel Levin points out in the comments, the above quote comes from William Rehnquist's majority opinion in Herrera v. Collins and not from Antonin Scalia's concurring opinion. My bad.

Perry signs Tulia bill

No matter what, at least we can all agree that one good thing came out of the 78th Legislative Session, as Governor Perry signed a bill that allows the 13 remaining Tulia inmates to post bond and wait out the Court of Criminal Appeals' ruling as free men. Big props to Sen. John Whitmire (D, Houston) for authoring SB 1948 and to Rep. Terry Keel (R, Austin) for shepherding it through the House.

Backup bill for Tulia 13 passes

There are now two bills to free the remaining 13 defendants of the Tulia drug bust who are stil in prison, thanks to an amendment on another bill that just passed the House.

A special prosecutor has said the cases would be dismissed if new trials were ordered. But it could take the appellate court as long as two years to complete its review of the cases, some legislators and lawyers believe.

Sen. John Whitmire, D-Houston, responded by filing Senate Bill 1948, which would allow the bonds to be set. That bill was unanimously approved by the Senate on May 14 and is set for routine approval Wednesday on the House's last "local and consent" calendar of the session. Such special handling is reserved for noncontroversial legislation.

Not wanting to take any chances, however, Rep. Terry Keel, R-Austin, tacked identical language onto another criminal justice bill by Whitmire that won House approval on Sunday.

The only difference between the two, Keel said, is that Senate Bill 1948, Whitmire's original Tulia bill, could go into effect immediately once the governor signs it. The backup measure, Senate Bill 826, wouldn't go into effect until Sept. 1.

Keel said he still expects to win House approval of the original bill but wanted some insurance since the session ends Monday.

"I know of no opposition to the bill," Keel said.

Hopefully, Whitmire's SB 1948 will pass the House without any problems, but I suppose it never hurts to have a backup plan.

Diane Zamora to get married

Convicted murderer Diane Zamora, who had petitioned the state for permission to marry another inmate named Steven Mora, has been granted that permission.

The strange love story got official Bexar County attention earlier this year, when County Clerk Gerry Rickhoff received letters from both inmates asking for permission to get a marriage license.

"This is the first time this office has had a request like this from two people in prison, one serving a life sentence," said Rickhoff, who secured legal approval from Texas Attorney General Greg Abbott.

In her letter dated April 29, Zamora wrote: "Sir, I do not take marriage lightly and am certainly not marrying someone I haven't already met, despite all you've heard."

The marriage would be a double-proxy union, meaning there would be a ceremony at each prison with stand-ins for the bride and groom.

Mora and Zamora, who are restricted to their cells for 23 hours a day, would have to use the hour they get for daily recreation to say "I do," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice.

"These types of marriages are performed by volunteer chaplains," Lyons said. "It's rare for one inmate to marry another — most marriages by proxy are between an inmate and someone living outside prison walls."

The union would exempt Mora and Zamora from restrictions imposed by the department in March prohibiting the exchange of letters between inmates in different prisons, Lyons said.

Whatever. It's a long way to 2036, when Zamora is eligible for parole, so don't expect too much out of this.

Darlie Routier loses appeal

The state Court of Criminal Appeals has unanimously rejected Darlie Routier's appeal for a new trial. Routier's attorneys had argued that the trial transcript, which was known to contain many errors, prevented them from raising legal issues, but the court rejected that argument. She still has a federal appeal pending on her death sentence. I wrote about this case last year, and I still feel the same way about it today.

Governor discovers Tulia

Last week, after Sen. John Whitmire (D, Houston) filed a bill to allow the 13 Tulia defendants who remain incarcerated to be freed on bond, Governor Perry's spokeswoman announced that the Guv had no comment until he could study all 32 lines of the bill. Apparently, he's finally finished reading it, for now he has ordered the state Board of Parole and Pardons to review all 38 convictions.

Breaking a long silence on the controversial 1999 arrests, Perry asked the board to "recommend whether a pardon, commutation of sentence or other clemency action is appropriate and just."

Perry's office said the governor contacted the parole board after reviewing the findings of a judge who recommended that the Texas Court of Criminal Appeals overturn all 38 convictions and order new trials.

In his report to the appellate court, retired state District Judge Ron Chapman, who presided over evidentiary hearings in March, found that the only witness against the defendants, undercover officer Tom Coleman, was guilty of "blatant perjury" during the Tulia prosecutions.

"It would be a travesty of justice to permit ... the convictions to stand," Chapman wrote.

Perry, who received a copy of Chapman's findings last week, voiced "grave concerns about the potential miscarriage of justice."

Although the drug convictions have received extensive media attention in recent years, the governor said Chapman's findings "represent the first independent legal analysis on the so-called 'Tulia drug arrests' available to my office for review."

This is the same Board of Pardons and Paroles that meets over the phone and doesn't actually discuss the cases that are in front of it before making their decisions. On the other hand, they are supposed to accept the governor's recommendations. If Perry is handing this off to them with a charge to Do The Right Thing, then good on him. If he's done this to fade the heat on himself and hide behind the BPP's dithering, then he's a bigger bastard than I've ever given him credit for.

Tulia update

All of the pieces are in place for the 13 people who were convicted in the Tulia drug bust fiasco that are still in prison to be released. A special judge recommended that all convictions be overturned because the state's star (and sole) witness, Tom Coleman (who has since been indicted for lying under oath) was completely not credible. A special prosecutor has said that even if new trials are ordered, charges will not be filed. No one on God's green earth believes that these people deserve to spend another minute in prison.

No sane person believes that, anyway, and therein lies the rub because the decision lies in the hands of the Court of Criminal Appeals, which is the domain of Sharon Keller. They're taking their own sweet time to act on this, which has prompted a bill in the Senate that would allow a district judge to do the CCA's work for it.

"I kept thinking the process was going to work, but it's way too slow. They shouldn't spend another day in prison," said Sen. John Whitmire, D-Houston.

Whitmire's Senate Bill 1948 would permit a district judge in Swisher County to release the 13 on bond while the Texas Court of Criminal Appeals deliberates their cases.

Whitmire scheduled the legislation for a public hearing on Monday before the Senate Criminal Justice Committee, which he chairs.

[...]

Whitmire said Rep. Terry Keel, R-Austin, chairman of the House Criminal Jurisprudence Committee and a former Travis County sheriff, will carry the bill in the House.

Lt. Gov. David Dewhurst said Whitmire "believes strongly in the bill."

"If it accomplishes what he's outlined to me in general, I'll be supportive," Dewhurst said.

Good on all of you. This is a disgrace and it needs to be made right.

And it wouldn't be a blog post without checking to see what kind of bold leadership our Governor is displaying:

Spokeswoman Kathy Walt said Gov. Rick Perry wanted to study the bill before commenting.

As always, he's up to the challenge. Here's the full text of the bill, in case you're curious.

Tom Coleman indicted

Former "Lawman of the Year" Tom Coleman was indicted on three counts of lying under oath for his made-up testimony during the Tulia drug trials. If convicted, he faces 10 years in jail and a $10,000 fine. I call that a good start.

Our expanding prison system

Some poor schmuck has just become our nation's two millionth inmate. I'm willing to bet there was no prize for this distinction.

This article contains a truly puzzling segment:

In a one-day head count conducted June 30, 2002, the 50 states, the District of Columbia and the federal government held 1,355,748 prisoners, accounting for two-thirds of the nation's incarcerated population, according to the annual survey by the department's Bureau of Justice Statistics. Local, municipal and county facilities nationwide held 665,475 inmates on that day.

Statisticians at the agency, which has been tracking the nation's prison population since 1977, had acknowledged it was only a matter of time before this benchmark was reached. But underlying the decades-long growth trend is a twist: The federal prison numbers are rising rapidly, but the growth rate in state prisons is slowing. While the federal prison system expanded by 5.7 percent between 2001 and 2002 -- adding 8,042 inmates -- state prisons grew by just 0.9 percent, or 12,440 new inmates. The rate of increase among the federal prison population has outpaced the states' since 1995.

It took me quite some time to make sense of the numbers in these paragraphs, and I had to seach Google News to find other versions of this story to figure it out. This article contained the key:

The federal government accounted for more inmates than any state, with almost 162,000, according to a report by the Bureau of Justice Statistics, part of the Justice Department. That number includes the transfer of about 8,900 District of Columbia prisoners to the federal system.

OK, 8000 is about 5.7% of 154,000, bringing us to 162,000. That leaves about 1,290,000 for the states, so now the 0.9% growth based on 12,440 additions fits. When I first read this story, I thought the 1,355,748 number represented all federal inmates, while the 665,745 figure meant all state prisoners. I hadn't realized that the distinction was between "prison" (i.e., convicts serving their sentences) and "jail" (i.e., arrestees awaiting trial/arraignment/bail/etc). Now I realize the 1.3 million total lumped federal and state inmates together, so I'd have had to infer the federal versus state prison totals from the growth rates given. Easy enough if you remember "part over whole equals percent over 100", but more work than I'd bargained for when I started reading.

Tulia's other problem

Now that all of the Tulia drug bust convictions have been vacated, Swisher County has another issue to think about: getting its ass sued off.

Minutes after a judge ruled Tuesday that the convictions of 38 defendants should be overturned, the county commission held a special closed session to try to head off costly civil suits by offering cash settlements to those who were improperly imprisoned.

"The decision was not about the guilt or innocence of any of the defendants," County Judge Harold Keeter said in a written statement after the meeting. "It was about protecting the taxpayers of this county and bringing closure to a situation that has disrupted and occupied our citizens for 3 1/2 years."

The settlement amounts offered range from $2,000 for those who served no time up to $12,000 for the 13 who are still in prison.

It was estimated the deal would cost the county $250,000.

Twelve grand for four years in prison? I don't think so. Let's start with four years' worth of lost wages, and go from there. And if that puts Swisher County in the red, let them appeal to the state of Texas, which was happy to name Tom Coleman "Lawman of the Year" when they thought he was one of the good guys. I don't care how they get the money, but twelve grand for four years in the joint just doesn't cut it.

Speaking of the pokey, Tom Coleman may find himself there as a result of this:

Rod Hobson, a Lubbock attorney who was appointed special prosecutor for the hearings ordered by the appellate court to review the convictions, said there is more work to be done.

"We are considering all options in this case," he said, "including seeking a criminal indictment from a grand jury."

One possible criminal charge is perjury, lawyers involved in the case have said. Coleman testified at length during the hearings and, the lawyers said, changed his story more than once.

Damn straight. Without Tom Coleman's make believe testimony, none of this would have happened. He's got to pay for it.

Finally, maybe, some justice in Tulia

At long last, the 13 residents of Tulia who are still in jail as a result of the scandalously botched drug bust from 1999 may soon be set free:

A judge reviewing four of the cases for the Texas Court of Criminal Appeals said Tuesday he will recommend that all the convictions resulting from the bust be vacated because of the conduct of the lone undercover officer working for the Panhandle Drug Task Force.

"It is stipulated by all parties and approved by the court that Tom Coleman is simply not a credible witness," said retired state District Judge Ron Chapman of Dallas.

Chapman said he will recommend that the appeals court grant new trials to all 38 defendants, most of whom are black -- a fact that led to charges the sting was racially motivated.

However, Ron Hobson, a special prosecutor assigned to help Swisher County with the cases, said that because the state had stipulated that Coleman was not credible, it will not try the defendants again.

"If the appeals court sends them back, we'll dismiss them," he said. "It would be foolish for us to go forward."

This is great news, and long overdue. Major kudos to Ron Hobson for being more interested in justice than in results, a trait not shared by some prosecutors.

When I first noted this story, a bit from an article in Texas Monthly jumped out at me. Here's the relevant quote, which you can see in that earlier entry as well:

WHAT BECAME OF THE OTHER players in the sting? Officer [Tom] Coleman—presented with an Outstanding Lawman of the Year award by [then-Attorney General John] Cornyn following the busts—has since been fired from two narcotics postings and has gone to ground in Waxahachie; his lawyer deflects the media inquiries that still regularly come, from Court TV to the London Independent.

I'd sure like to ask John Cornyn what he thinks of Tom Coleman now.

The price of doing business

Today's Chron has a rather dispiriting piece about support for the death penalty in our great state:

The recent flurry of news about capital punishment has not swayed the opinions of Texans, who remain committed to the death penalty, even if it means executing innocent people in the process.

A recent Scripps Howard Texas Poll found 76 percent of Texans said they support the death penalty. Sixty-nine percent of the poll respondents also said they believe the state has executed innocent people.

Before I get into some related topics, I'd first like to point out that the first paragraph above is on logically shaky ground. In the abstract, I support the death penalty, but I want to see it reformed to the point where it's virtually impossible to execute an innocent person. Had they asked me the yes-no questions "Do you support the death penalty?" and "Do you believe innocent people have been executed?", I'd have answered Yes to both. In my personal experience, polls want nice discrete answers to simple questions. An affirmative answer to both of these questions does not necessarily mean that one thinks this is how it needs to be.

That said, I believe the following:

David Atwood of the Texas Coalition to Abolish the Death Penalty said he was not surprised by the findings of the recent poll.

"We've had people say executing an innocent person is the price of doing business," Atwood said.

Which is why I found the following bit to be too precious for words:

The poll results baffled even the most ardent death penalty supporters.

"That's hard for me to fathom," said Dianne Clements, president of Justice for All, a victim's rights organization that supports the death penalty.

Clements questioned whether Texans really believe innocent people have been executed.

"If I believed we executed an innocent inmate, I couldn't support the death penalty. It doesn't make any sense," Clements said.

Dianne Clements and Justice For All are the biggest pimps for the death penalty in the state of Texas. One of their own representatives has shown callous disregard for the possibility of executing innocent people, as seen in this Houston Press piece:

JFA representative Rusty Hubbarth, testifying to Texas legislators last year on a proposal for a moratorium on executions, was asked by one lawmaker, "Rusty, you're not in favor of executing innocent people, are you?"

"Not this week," Hubbarth joked.

The humor was probably lost on two men in attendance that day. Randall Adams and Kerry Cook had collectively spent more than a decade in prison for crimes they didn't commit -- they'd both come within hours of execution.

So spare me the crocodile tears, Dianne.

The story notes that the poll was taken during February, when news of capital punishment and death row prisoners being cleared of their crimes was in the news. If this story is right in stating that some people truly believe that occasionally executing an innocent person is "the price of doing business", then let's at least make sure we're clear on what the price is, for on top of the travesty of killing an innocent person, there are other costs as well.

As Delma Banks Jr. enjoyed a day he didn't think he would live to see, the family of the teenager he was convicted of killing 23 years ago drove back to Texarkana frustrated by what transpired the night before.

[...]

Larry Whitehead, the victim's father, said the court's decision stunned his family.

"It's just devastation," he said. "I guess there aren't any words to explain about the disappointment, the hurt. I don't know. I just don't have words for it. The only thing we can feel is yesterday was no justice for our son."

If one comes to the conclusion that Delma Banks is innocent - and it's easy to arrive at that conclusion - then regardless of whether or not he's eventually freed or fried there are a number of victims besides Richard Wayne Whitehead (the 16-year-old that Banks is convicted of killing) and Banks himself. Whitehead's family has been put through an unnecessarily arduous journey for justice, and depending on the vagaries of the Supreme Court may wind up wondering if the real killer was executed or if the real killer will ever be found now that the wrong man has been set free. They deserve a lot better than that.

There's another group to consider, one that won't be mentioned in the paper unless another person is eventually fingered for the Whitehead murder. If Banks is innocent, then the real killer has potentially been out on the streets victimizing other people, people with no connection to the Banks or Whitehead families. If the police and prosecutors had done their jobs properly, this person would have been in jail, possibly on Death Row, instead of remaining free. How big a boost to "the price of doing business" is this?

Granted, that latter cost is independent of the death penalty itself. If Delma Banks were incorrectly serving 25-to-life instead of awaiting execution, the real killer would still be going unpunished. But the reasons why Banks is where he is are precisely the reasons why the death penalty is so troubling. They have to be addressed, not just to save the life of a Delma Banks but to safeguard his freedom. The fact that society as a whole is better off as well is more than just a happy coincidence.

It's easy to sneer at "criminals' rights" and "legal technicalities" that let bad guys go free while hamstringing the cops and the courts. I have a hard time understanding how anyone can call himself or herself a proponent of "law and order" without being passionate about ensuring that the people we lock up are the ones who really deserve it. The way I see it, being indifferent to actual guilt lets a whole lot more criminals walk free than the Miranda ruling ever did.

Wedding bells behind bars?

Diane Zamora, the former Navy cadet now serving life for her role in the murder of Adrienne Jones, has petitioned Bexar County for a marriage license. Her potential groom is not her fellow killer David Graham but a soon-to-be-released inmate named Steven Mora. She's never met Mora, of course, but the only real obstacle is the county clerk and an unusual double-proxy ceremony:

The couple's request for a double-proxy wedding is a new one, even for prison officials.

Larry Fitzgerald, a spokesman for the TDJC, could not remember a double-proxy wedding but said, "We have proxy marriages all the time."

Pickax murderer Karla Faye Tucker, a resident of Texas' death row from 1984 to 1998, married Dallas-based prison ministry worker Dana Brown by proxy in 1995. In 1998, she became the first woman executed in Texas since 1863.

Two ceremonies are conducted when proxy marriages take place, Fitzgerald said: A civil ceremony in the free world with a proxy standing in for the inmate, and another ceremony conducted in prison by the prison chaplain, with a proxy standing in for the free spouse.

To conduct a double-proxy wedding, four stand-ins and three ceremonies would probably have to take place, Fitzgerald said: A free-world ceremony with two proxies, and two prison ceremonies with one proxy each.

Attorney General Greg Abbott gave an opinion allowing all this to go forward, but it's still up to the county clerk.

As she isn't eligible for parole until 2036, it's hard to imagine this actually lasting. But stranger things have happened, I guess.

Delma Banks granted stay of execution by Supremes

Delma Banks, scheduled to be the 300th Texan to die by lethal injection, was given a last minute reprieve by the US Supreme Court.

The court was acting on appeals by lawyers who raised questions about the legitimacy of his conviction.

As Banks prepared Tuesday to be moved from death row in Livingston to Huntsville, where he was scheduled to be executed, his attorneys complained that the Texas criminal justice system never considered the merits of his final appeals.

The Texas Court of Criminal Appeals said the defense waited too long to introduce evidence that two key prosecution witnesses lied at trial. Also, the Texas Board of Pardons and Paroles rejected a lengthy petition for clemency Monday without reading it because it had been filed after its deadline.

"I think this case goes to show, unfortunately, in Texas, substance and merit and concern about due process and possible innocence don't hold any water compared with technical procedures and rules," said Miriam Gohara, an attorney with the National Association for the Advancement of Colored People's Legal Defense and Educational Fund.

When I read about cases like this, I come to understand how liberal war hawks have been feeling lately. I want to support capital punishment, but not in the way we've been doing it. We care more about the process than the results, more about closure than justice, more about efficiency than innocence.

Every time a case like Delma Banks or Leonard Rojas hits the papers, the state always natters about deadlines and how the system just can't work if we're never allowed to close a case. There's an easy answer to that, and that's to remove the artificial need for deadlines that executions require. What's more important: getting it right or getting it over with? I know what my answer is.

Cragg Hines lays out the case for Banks' innocence pretty clearly - allegations of prosecutorial misconduct, coerced witnesses, withheld evidence, incompetent representation, racial bias in jury selection - pretty much all of the bullet points you'd expect from an anti-death penalty speech. Does the fact that Banks' lawyers filed his paperwork with the state Board of Parole and Pardons 15 days before he was supposed to die instead of the mandated 21 make all of that moot?

I cannot abide the death penalty as it is administered. If we can't fix the system, we need to throw it out. There's just no excuse.

UPDATE: Jeralyn has anti-death penalty editorials from the four major papers in the state, including the usually reliably conservative Dallas Morning News.

Sharon Keller hits the trifecta

I recently introduced you to Justice Sharon Keller of the state Court of Criminal Appeals. She was in the news recently for suggesting that funds earmarked for legal representation of death row inmates be returned to the state to help alleviate the budget crunch. Before that, she was probably best known for her refusal to acccept exculpatory evidence in the case of Roy Criner.

Well, she's back in the news now that three of her court colleagues have criticized the full panel for allowing an inmate to be executed despite clear evidence that his court-appointed attorney was utterly incompetent. From the Chron story:

After upholding [Leonard] Rojas' conviction on his automatic direct appeal, the Court of Criminal Appeals in 1997 appointed a Fort Worth lawyer to file a habeas appeal. A habeas appeal is designed to raise claims not based solely on the trial record, and habeas counsel is required by law to conduct a thorough investigation.

The lawyer admitted in an affidavit he did no independent investigation beyond speaking with Rojas one time, reading the trial record and talking to one of the trial attorneys.

The lawyer also failed to take action that might have preserved Rojas' right to federal habeas review and did not even inform Rojas that his state habeas petition had been denied.

The attorney had received two probated suspensions from the State Bar of Texas. Two weeks after the Court of Criminal Appeals appointed him to represent Rojas, he received another probated suspension for failing to take care of his clients.

Last year, in a widely criticized opinion, the court ruled that habeas lawyers must be competent when appointed but need not represent the client competently. Price, Holcomb and Johnson also dissented in that case, with Price writing that competent counsel "ought to require more than a law license and a pulse."

The Austin American-Statesman article notes further that the attorney in question had never handled a capital case before and was having "personal and professional problems" at the time.

You really have to love the logic of "habeas lawyers must be competent when appointed but need not represent the client competently". I guess by that standard if you can drive a new car home, the dealership is off the hook forever, even if the car never starts again.

None of this bothers Keller, who's more upset that her colleagues aired dirty laundry than with the idea that justice is a process rather than a fill-in-the-blank form:

Keller, joined by Judges Mike Keasler and Cathy Cochran, took a swipe at her colleagues for releasing the dissent, noting that "any jurisdiction this Court might have arguably had over (Rojas') claims expired upon his execution."

Yes, God forbid we should ever look back at our actions and reconsider whether they really were the right ones to take. The next time I'm called in for an after-action review of a project at work, I'll just say that any jurisdiction my manager may have over me in this matter expired upon completion of my work. I'm sure they'll understand.

You may note that I haven't mentioned anything about Leonard Rojas or the crimes for which he was executed. Well, if these stories are accurate there's little doubt that he's guilty and unremorseful - in short, someone for whom little sympathy is warranted. That's not the point. The point is that death is, you know, final. If some enterprising law student were to come along and review Leonard Rojas' case, it wouldn't make any difference if she were to find a glaring procedural error, the kind of error that would normally force a new trial or even outright dismissal of the charges. That's because Leonard Rojas is now dead. The Court of Criminal Appeals allowed him to be executed without knowing or apparently caring if he really should be. If we can't be confident that every death row inmate has had a fair and full chance to appeal his verdict, then we can't be confident that only the guilty get executed. The fact that Rojas made it to the gurney without a real review of his case should be cause for consternation, not ass-covering.

The excuses that some of our state judges give as to why an incompetently represented defendant doesn't deserve any better - "Hey, he was competent when we appointed him, it's not my fault if he turned out to be a goober" - "OK, so his lawyer slept through parts of the trial, but how do you know they were important parts of the trial?" - are just pathetic. If we gave half as much consideration to ensuring fair representation as we do to coming up with these excuses, we wouldn't need the excuses.

If there's one good thing to come out of this, it's that some legislators are working to remove the task of appointing attorneys for these cases from the Court of Appeals. They've clearly shown they can't handle the responsibility.

Thanks to reader darms for the tip.

Valentine's Day isn't happy for everyone

Today is the day that Robert Chambers, the so-called "Preppy Killer", gets out of jail after serving all 15 years of his plea-bargained sentence for the murder of Jennifer Levin in 1986.

Chambers confessed in 1988 to strangling 18-year-old Jennifer Levin two years earlier. He claimed it was an accident while they were allegedly having rough sex; prosecutors said he killed her in a rage.

Wearing a red sweater and green pants, Chambers ignored a phalanx of reporters as he walked out of Auburn Correctional Facility at 7:15 a.m., got into a van and rode off.

On the eve of his release, Chambers issued a statement of regret through his lawyer.

"There has not been a day since Jennifer Levin's death that I have not regretted my actions on that day," the one-paragraph statement said. "I know that the Levin family continues to suffer her loss, and I am deeply sorry for the grief I have caused them."

You can take his remorse with a grain of salt, for he clearly felt none in previous years, even when appearing before the parole board:

[H]e has never shown any public remorse for what he has done. At a 1995 parole hearing, he made the curious statement: "I guess I could also give you the party line and say I have learned my lesson, I will never do this again, but that's not how I feel at the moment."

That quote comes from Court TV's Crime Library, which has all of the details of this case. Don't read it if your blood pressure is already elevated. I generally have little use for the victims' rights groups today, but it's useful to remember that there was a need for them in those days. The treatment of Jennifer Levin by the media and Chambers' defense team was nothing short of atrocious. Years later, the New York Post is still using headlines like KINKY SEX, EARLY DEATH and saying things like this:

ON a balmy summer evening in 1986, two boozed-up teens strolled into Central Park for a frenzied sexual tryst.

Only one of them left the park alive.

It gets worse from there.

My heart goes out to Jennifer's parents. May they someday find peace.

The sex offender next door

Here's one of those stories that's so forehead-slappingly obvious it makes you wonder why, exactly, it's news: Residents of poor neighborhoods are shocked to find registered sex offenders living among them, and where you find one, you tend to find many.

The house at 3514 Canal is an extreme example of a trend that's beginning to concern many cities: clusters of sex offenders that infect low-income neighborhoods.

The Canal rooming house is just one of 16 sex offender residences clustered in an area of about a square mile just east of downtown and south of Buffalo Bayou.

The area takes in one other multiple-offender address, a small apartment building in the 400 block of Hutcheson where three registered sex offenders live.

That's a total of 24 registered sex offenders in the area. All but two were convicted of offenses involving children.

Look, I don't mean to make light of legitimate concerns here, but where do you think registered sex offenders are going to live? Every time one of them turns up in a "good" neighborhood, it leads the local TV newscast that night amidst screaming graphics that ask "Could They Be Next Door To You?"

The problem is growing in other cities as well.

The Arizona Legislature has formed the House Ad Hoc Sex Offender Clustering Committee to deal with the problem there.

[...]

In St. Petersburg, Fla., civic associations are banding together to fight sex offender clusters at cheap motels revealed in a St. Petersburg Times article last year.

Again, where else are they going to live? We've broadened the definition of "sex offender" these days to the point where it covers a lot of relatively minor crimes, so locking them up for good is not really an option. Given that many of them will sooner or later be back on the streets, would you rather have them clustered or spread out? Which is the greater risk?

Probation and parole rules prevent registered child sex offenders from living near places where children gather: schools, daycares, parks, playgrounds, youth centers, public pools, video arcades.

"It's so limited, so strict," Enax said, "and there are so many parks and schools."

Yet another reason why you'd expect to find them grouped together. There's only so many places they can be without violating parole. Some of them can't visit their attorneys without violating parole. I'm certainly not going to weep for them, but it seems a bit hysterical to put such stringent restrictions on their movements and then get bent out of shape when you realize they're all in the same places.

Although studies proliferate on recidivism among sex offenders and how it is affected by treatment, notification laws and other factors, no research could be found on whether living in proximity to other sex offenders affected them negatively, or at all.

We sure will feel silly if it turns out this has no negative effect on their treatment and recidivism, won't we?

I certainly understand why people would be frightened and upset to realize that a bunch of sex offenders live in their neighborhood. All I'm saying is, what are we going to do about it that won't simply push the problem into someone else's neighborhood?

Death versus life

One of the stronger things I've seen written about the recent decision by outgoing Illinois Governor George Ryan to commute the death sentences of every condemned inmate is the following by The Talking Dog:

For the record, I am "operationally opposed" to the death penalty. If we saved it for the McVeighs and bin Ladens (or in New York, for the "Wendy's killer"), and made damned sure these few monsters got an absolutely fair trial, then I would say -- execute away. But as a regular participant in the uneven legal system of a state widely regarded as having one of the BEST court systems in the country, and almost always only dealing with CIVIL matters, I can tell you, justice is dispensed far too arbitrarily for life and death decisions. Further, given that most death penalty recipients tend to have appointed counsel paid absurdly low compensation by the state ("if you can't afford an attorney one will be provided for you") that it’s very hard to conclude the penalty is meted out on a basis that can reasonably called "fair". Better to adopt George Ryan's approach: commute 'em all, and let the courts sort 'em out.

Philosophically, I have no objections to the death penalty. I don't claim it's a deterrent, I don't claim it's an efficient use of scarce resources, and I certainly don't claim that it's meted out in a fair manner in this country, but in the abstract I accept it on the grounds that it's a suitable response to certain crimes and certain criminals. Still, if the death penalty were to be greatly scaled back or eliminated altogether, I would not consider it much of a loss.

I've never quite understood the love affair that some people have with the death penalty. I remember discussing it once with a friend of mine who's an anti-government conservative Republican and whose position on this issue is basically "kill 'em all and let God sort it out". I asked him why, if he's so mistrustful of government power, he's happy to let the government have the power to kill citizens like that. He didn't have an answer that I found satisfactory.

Dwight Meredith recently asked this same question in a different way: "If tort reform is needed because juries make terrible decisions in civil liability cases, why do conservatives think that death penalty juries are infallible?" More to the point, there's a well-defined system of appeals for civil cases which frequently reduces the kind of civil awards that tort reformers point to as being the sort of thing they oppose, yet we've consistently restricted avenues of appeal in capital cases in recent years, to the point where actual innocence is no longer considered sufficient grounds for overturning a verdict. I don't know how any death penalty supporter could not find that a teeny bit disquieting.

It's long been clear to me that the driving force behind the most ardent supporters of the death penalty is a desire for vengeance and a belief in "an eye for an eye". I consider this to be a lousy basis for public policy. It's also, for those who list Jesus as their favorite philosopher, not in line with his teachings:

[38] Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth:
[39] But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.
[40] And if any man will sue thee at the law, and take away thy coat, let him have thy cloke also.
[41] And whosoever shall compel thee to go a mile, go with him twain.
[42] Give to him that asketh thee, and from him that would borrow of thee turn not thou away.
[43] Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy.
[44] But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you;
[45] That ye may be the children of your Father which is in heaven: for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust.
[46] For if ye love them which love you, what reward have ye? do not even the publicans the same?
[47] And if ye salute your brethren only, what do ye more than others? do not even the publicans so?
[48] Be ye therefore perfect, even as your Father which is in heaven is perfect.

Maybe that whole government-by-Biblical-principles thing isn't such a good idea after all.

Until the day that we can honestly say that there are no undeserving people on Death Row, I join The Talking Dog in his operational opposition to the death penalty.

UPDATE: Via Kevin Drum, I see that Rod Dreher at NRO has doubts about the death penalty. I'm glad to know it.

Behind the walls

Here's a great interview with Mark Pitcavage, former proprietor of the Militia Watchdog and current fact-finding director for the Anti-Defamation League, not to mention a classmate of mine from Trinity University. Mark's been tracking hate groups for years now, and he has some excellent insights as to how and why our jails are a fertile recruiting ground for them:

IR: You note in your report that the men who murdered James Byrd Jr. in the Jasper, Texas, truck-dragging incident had developed their racial beliefs while behind bars. What is the link between incarceration and politicization?

PITCAVAGE: Exactly what dynamic occurs varies with each particular individual, but there are some universals. Prisoners have a lot of time on their hands, and as a result they are desperate for reading materials. They are desperate for stimulation. Some of them are just fine with pumping weights, but others aren't and seek out extremist publications as well as non-extremist publications. You see prisoners asking for free subscriptions, for correspondence, for people to send them materials, anything. They may not be ideological at that point, but they want something - and the material they get can lead to their politicization.

Another thing is that many prisoners want to justify or rationalize what they have done or what has happened to them. They don't want to say that they did something wrong or deserved what they got. This is true whether you are black or white. By adopting a particular ideological slant, you can rationalize that you are not a simple criminal, that you are in jail for political reasons.

[...]

IR: Is there a relationship between getting recruited into these racist groups and then committing hate crimes or other violence after leaving prison?

PITCAVAGE: My suspicion is that there is probably not a huge link, because a lot of these people just join the gangs while they are in prison, then leave them when they get out. But the fact is that some prisoners do get genuinely politicized, and on top of that prison gives them an education in violence. It's a mess. I think that is what happened in Texas [with the murderers of James Byrd Jr.], and the result was one of the most inhumane acts ever perpetrated in modern America.

I've written about the perils of a punitive approach to criminal justice before, and I firmly believe that locking up broader classes of offenders is the most expensive and least effective way of dealing with crime. Mark's interview provides a lot more ammunition in this argument.

The Tulia drug bust fiasco

Atrios points to this Bob Herbert column which gives an update on the situation in Tulia, Texas, site of one of the most botched drug-bust cases in recent memory. Atrios has some links to background information on the case, but here are a few more: the original Texas Observer story, a short followup from a few months later, and a story from this November by the same reporter.

That last link requires registration. Here's an excerpt to whet your appetite:

Beginning with a few arrests in the mid-nineties, building momentum with a school drug-testing policy passed in 1996, and culminating in the big busts of 1999, the drug war in Tulia coincided roughly with the razing of the Flats and the black community's move across the tracks—essentially pushing black and white Tulia into the same space for the first time ever. Of course, the timing also corresponded with the arrival of crack in the tiny towns of the Panhandle but not with the arrival of drugs per se; Tulians black and white had always had access to them, though perhaps not in proportion to their counterparts in the bigger cities. So why now, and why black Tulia?

"Propaganda is a funny animal," said Gary O. Gardner, a farmer who lives in the nearby village of Vigo Park. Few reporters on the Tulia beat have filed their stories without a visit to Gardner's compound, where he holds court from a converted pool room piled high with transcripts, writs, and affidavits, along with the occasional box of ammo. If [Joe Moore, currently serving a 90-year sentence] is the mayor of black Tulia, then Gardner, who is white and hails from one of the area's original farming clans, is the mayor of rural Swisher County. Critical of the busts from early on, he has now made it his personal crusade to get Moore and the others out of prison. He blames politicians like [District Attorney Terry] McEachern for creating the atmosphere in which the busts could happen. "If you're gonna make your living off the backs of somebody that you want to convict, you have to make 'em the enemy," he said. "And in Tulia, everything is blamed on the black drug dealers."

[...]

WHAT BECAME OF THE OTHER players in the sting? Officer [Tom] Coleman—presented with an Outstanding Lawman of the Year award by [then-Attorny General John] Cornyn following the busts—has since been fired from two narcotics postings and has gone to ground in Waxahachie; his lawyer deflects the media inquiries that still regularly come, from Court TV to the London Independent. Thirteen of the defendants are still in prison and serving long sentences, despite the fact that the state legislature passed several reforms in 2001 in response to what one member termed the Tulia fiasco; a team of attorneys, led by Jeff Blackburn, of Amarillo, and Vanita Gupta, of the NAACP Legal Defense and Education Fund in Washington, D.C., has taken up their cases. The governor's office has reorganized the grant program that funded the operation, putting agents like Coleman under the supervision of the Texas Department of Public Safety. An FBI investigation announced two years ago seems to have petered out. Local authorities, for their part, have refused to condemn McEachern and [Sheriff Larry] Stewart's handling of the cases or to call for the release of those still incarcerated. "The lesson in all of this is that there is no political benefit to ruling for these defendants, and the judges saw that clearly," one defense attorney said. "They asked themselves, 'Am I going to give up my career for these people?' And the answer was 'No.'" Or as one person in the black community put it, more succinctly, "There are a lot of good, honest people in this community. They just don't have any balls."

Paul Holloway found that out the hard way. An attorney in nearby Plainview, Holloway took on several of the cases in the original sting as a court-appointed attorney, and it was he who discovered much of Coleman's personal and professional history. The son of a well-known Texas Ranger, Coleman had, as deputy, skipped town on two different sheriff's offices over the past five years; in Cochran County, he also left $7,000 in unpaid bills. In interviews and documents collected by Holloway and other defense attorneys, former co-workers and associates of Coleman's in both towns referred to him as a pathological liar and a paranoid gun nut. Cochran County's sheriff filed charges against him in an effort to collect restitution and placed a letter in his official file warning future employers not to hire him in law enforcement. Deep cover in Tulia was apparently his last chance to make good. Sheriff Stewart discovered the Cochran County warrant about six months into Coleman's tenure but decided to continue the undercover operation anyway. (Stewart would not be interviewed for this story.)

Holloway packaged up what he thought he had found and presented it to district judge Ed Self. He asked for money for expert witnesses, though he figured he wouldn't need them. "I thought that if somebody knew about Tom, it would all be stopped," Holloway said. Instead, Self sealed the information Holloway had spent weeks collecting and denied his request. "Do you know what this means, Judge?" Holloway asked to no avail.

"My kid is twelve years old," Holloway told me as we rolled through the wide, quiet streets of Plainview in his gold Mercedes, "and we just watched To Kill a Mockingbird. I told him the difference between me and Atticus Finch is this: At the end of the trial—this complete railroading of an innocent man—Atticus turned to his client immediately and said, "Don't worry. We're going to appeal.'" But Holloway's grasp of reality would not allow him to do that in Tulia. "I took an oath as a lawyer not to disgrace this system, but I knew in my heart they would win no appeals. If this will be stopped, it will be when the prosecutor puts a stop to it."

Bob Herbert notes that there's a new judge looking into the case, replacing Ed Self. That's clearly a good thing, but unless that judge can free those that are already in jail, I think Paul Holloway is right. Look at the case of Roy Criner, for example. He wasn't freed until the Montgomery County DA finally (and very reluctantly) asked for his freedom. The system likes closure. It doesn't like overturning jury verdicts.

Burdine update

The retrial of Calvin Burdine continues to be a total pooch-screw, as two attorneys that Judge Joan Huffman has assigned to assist his court-appointed counsel have been rejected by both Burdine and his lawyer.

State District Judge Joan Huffman appointed Anthony Osso and Dick Wheelan to Burdine's defense team earlier this week, even though Burdine already has his own attorney and did not ask for the court-ordered assistance.

Danalynn Recer, Burdine's attorney, said during a hearing Thursday that the judge had "overreached" her authority.

Recer, who took the case for free after Huffman refused to appoint Burdine's longtime appellate attorney Robert McGlasson of Georgia, opposed the addition of Osso and Wheelan during a hearing Tuesday.

Recer asked Huffman her legal basis and motive for the appointments during another hearing Thursday, but the judge declined to answer. The judge would only say that her intention is to ensure that Burdine has an effective legal defense team.

Huffman said it's up to Recer whether she will seek the attorneys' help in the case.

"You can use them, don't use them -- they can sit at trial and not say a word," Huffman said of Osso and Wheelan. "But, they are here to assist you."

Recer submitted an affidavit to Huffman during Thursday's hearing in which Burdine complained about the appointments and stated that he considers Recer and McGlasson to be his attorneys.

Let's run this one down from the top:

1. Calvin Burdine's conviction for the 1983 slaying of his roommate/lover W.T. Wise is overthrown on appeal because his court-appointed attorney slept through much of the trial.


2. Judge Huffman refuses to allow Robert McGlasson, the attorney who handled all of Burdine's appeals, to be his counsel for the retrial. The reason for Huffman's refusal is that McGlasson had the balls to want to be paid for his representation. Burdine is indigent, so the state of Texas would be picking up McGlasson's tab. Instead, Huffman appoints Danalyn Recer, who had agreed to work pro bono. The ACLU appealed and a federal judge agreed to review Huffman's decision, but ultimately allowed her ruling to stand. An appeal is pending.


3. Huffman had originally set an October date for the retrial, which would have given Recer very little time to prepare. After much hue and cry and a rebuke from the editorial page of the Chron, Huffman moves the trial date back.


4. As this is a death penalty case, the law apparently requires two lawyers for an indigent defendant. Burdine wanted McGlasson, who is helping with the case anyway. Huffman picked two other attorneys for reasons unclear. Both attorneys will make between $400 and $700 per day or up to $30,000 for the case, with Huffman giving final approval to their bill.

Does this make any sense to you? It sure doesn't to me.

One of the secret problems of Texas criminal justice is the lack of a public defenders office in most counties. Judges appoint defense attorneys for defendants who need them. This often leads to a major conflict of interest. Judges are elected, so they don't want a reputation for cutting criminals loose. Attorneys who get these appointments have an incentive to please the judge. As a result, the accused often get a defnse that is indifferent, even nonexistant (as was the case with Burdine).

Unfortunately, there's no remedy for this that doesn't include money and the public will to do something about it. Neither of those is likely any time soon, so we get the spectacles like this one.

What I did for love

From today's Chron:

GALVESTON -- The desperate pursuit of love from a man who demanded expensive gifts, lavish lifestyle and lots of money led a woman to embezzle hundreds of thousands of dollars from the Gulf Greyhound Park dog track, the woman's attorney said Tuesday.

Among many other things, Maria Christina "Christine" Barros bought her boyfriend a new Lexus automobile, an expensive wardrobe and an array of equipment he said he needed to become a private investigator in Las Vegas, defense attorney Chris Samuelson told a jury of nine women and three men.

The jury will decide whether Barros receives probation or goes to prison for embezzling.

Hasn't her lawyer figured out that all she needs to do is blame Bill Clinton for the loss of her moral compass? I thought that was a generally accepted affirmative defense by now.

"Ultimate devotion"

The Chron has a wire story today about an interview with David Graham, who at the behest of his fiancee Diane Zamora brutally murdered Adrianne Jones, with whom he had had a brief fling. Graham and Zamora, who went on to be cadets at the Air Force Academy and Naval Academy respectively after the killing, were caught as a result of their own inability to keep quiet about it.

Anyway, Graham says in the interview that he did it to prove his "ultimate devotion" to Zamora. Not quite sure this is news, as the Cadet Killers case was nationally known and all of this came out during the trials, but there it is. Texas Monthly did what is probably the best and most comprehensive story on this sad case, but unfortunately it's not freely available online. The Fort Worth Star-Telegram has coverage of Zamora's trial here and Graham's trial here, and the Crime Library has an overview here.

Judge declines to intervene in Burdine case

Federal Judge David Hittner has declined to force the appointment of Calvin Burdine's appeals lawyer to his retrial case, agreeing with the argument that forcing the change would enjoin the trial. Looks like I called that one wrong. The ACLU is appealing the ruling, which may delay the start of the retrial.

While I understand Hittner's ruling, I have to ask: Doesn't it make sense to close off this potential avenue for appeal now? The whole reason for this retrial is that Burdine got essentially no representation in 1983. Is it in anyone's interest to risk another retrial? Unless I'm missing something, it looks to me like the reason that attorney McGlasson needs to be appointed by Judge Hoffman to represent Calvin Burdine is that it's the only way McGlasson can get paid for the work, as Burdine is indigent. The lawyer who is representing him now has agreed to work pro bono. Is it worth all this trouble to avoid paying the defense attorney?

Federal judge to rule in Burdine case

Federal judge David Hittner will decide by next week whether or not Calvin Burdine should be represented by his appeals attorney in his murder retrial, or if he should let stand Judge Joan Hoffman's ruling that Burdine should be represented by an appointed attorney. It's highly unusual for a federal judge to intervene in a case that is still in progress. Hittner is actually ruling on whether or not he has the authority to intervene, which is just a tad bit convoluted to me, but whatever. For sure if he rules that he can step in, he will rule that Burdine should get the lawyer of his choice, as anything else would make the whole exercise pointless. Time to set a precedent, Your Honor...

Einhorn guilty

Ira Einhorn has been convicted of murdering Holly Maddux.

Good. May he rot in jail.

Einhorn update

They've got a different reporter covering the story today, so it's not quite as snarky as earlier efforts. There's still no mistaking who the bad guy is, though:

Grisly autopsy photos of Holly Maddux made the courtroom audience gasp yesterday, but accused killer Ira Einhorn intently stared at the giant image of his former girlfriend's smashed skull projected on a screen at his trial.

Einhorn, 62, put on his wire-rimmed glasses to look more closely at the colored images of Maddux's corpse. He raised his arm to point out details to his defense team. And at one point, he turned to his attorney and smiled.

"That was a really inappropriate reaction," Maddux's sister Meg Wakeman later angrily told reporters.

Another sister, Elisabeth "Buffy" Hall, said: "It's beyond description, what it feels like... . It makes your stomach hurt. It makes you sick."

You know, I'm looking forward to Einhorn's conviction and life sentence as much as the next guy, but I don't think I had such an appreciation for the concept of a tainted jury pool until I started reading these articles. I sure hope this isn't an issue on appeal.

Talk Left has some more information as well.

Guess they don't like him

We here in Houston like to complain about the Houston Chronicle for its many sins: it's mealy-mouthed, a corporate shill, doesn't have a good investigative reporting tradition (they missed the whole Enron scandal, after all), and is just as colorless as a glass of Perrier. All of which is true, but I sometimes fail to appreciate how true the latter item is until I come across stories like this from the Philadelphia Daily News, whose reporting on the Ira Einhorn trial has been a hoot. Take yesterday's entry, in which the Einhorn defense team gets to cross examine some prosecution witnesses:

APPARENTLY, women who don't love Ira Einhorn and his big, fat, bossy personality must be...lesbians!

In a shocking turn of courtroom strategy, Einhorn defense attorney William Cannon yesterday unleashed this sexual-orientation defense in an attempt to discredit female witnesses who saw bruises on Holly Maddux's face in the years before she was beaten to death.

Cannon implied during cross-examination, then confirmed to reporters later, that he believed the women were testifying about Einhorn's alleged beatings of Maddux because the women were jealous of the hippie's romantic relationship with the beautiful Texan.

Wowzer. It's not like Einhorn and his attorney, who went on to say "I think most of the women we have seen so far are the kind of ladies who were very much part of the pro-feminist movement, who could be termed as man-haters" and who are biased against "aggressive, outspoken strong men who dominated relationships", don't deserve this kind of open contempt. It's just rather shocking to see in a daily paper.

They keep it up in today's edition:

WE'RE NOW faced with the unpleasant task of discussing Ira Einhorn's sex life.

During Einhorn's murder trial yesterday, his attorney modified his previous "Lesbian Defense" to make room for the big, 1970s sex-romp diversion. The foray into free love stars the hygienically challenged hippie and his bevy of willing partners.

It's actually kinda refreshing, even though I know that it's just pandering to the masses. I wouldn't want a steady diet of this kind of indignant posturing - there's a reason I don't read the New York Post - but sometimes a little outrage in the daily fishwrap is useful. As long as it's not your own ox that's being gored (and if Ira Einhorn is your ox, please don't tell me about it).

Anyway, I think this is where I'll be tuning in for future trial updates. How can you go back to wire feeds after you've seen this?

Einhorn will testify

Ira Einhorn will testify at his trial, and by $DEITY he may just tell us all about how it was Evil Guvment Agents who killed his girlfriend Holly Maddux and stuffed her body into a steamer trunk in his apartment. I have a feeling that will go over as well as Linus' Great Pumpkin speech did when he ran for class president...

Via TalkLeft

Einhorn trial to begin

The long-awaited retrial of accused murderer and fugitive (*) Ira Einhorn is set to begin this week. Already I'm grinding my teeth:

Einhorn's lawyers have said they hope to call celebrities such as Ellen Burstyn and Peter Gabriel as character witness.

And Einhorn, who has always maintained his innocence, may take the stand as well.

It's gonna be a circus, isn't it? I have no idea what useful testimony Ellen Burstyn and Peter Gabriel can give other than the "no really, he's a real sweetheart, his heart's in the right place, I just can't bring myself to believe that this guy I once hung out with could have decapitated his girlfriend and stuffed her body into a trunk in his apartment" kind. And oh, the possibilities if Einhorn gets to expound on his belief that the CIA did it in order to discredit him. Where's Judge Ito when you really need him?

(*) I refuse to call him a "former hippie guru".

Vengeance and the mentally ill

US District Judge William Wayne Justice criticized the criminal justice system for "a spirit of vengeance" in dealing with the mentally ill. He was in town at the UT-Houston Medical School giving a lecture.

For proof look no further than the Andrea Yates case, U.S. District Judge William Wayne Justice said during an address to psychiatrists and others at the University of Texas-Houston Medical School.

"Andrea Yates did a monstrous thing, but is not a monstrous human being," Justice said. "She is, ultimately, a pathetic and tragic figure."

What is most disturbing about the Yates case, Justice said, is that it conformed to the law as it exists today.

"We punish those we cannot justly blame," Justice said. "Such a result is not, I believe, worthy of a civil society."

[...]

The change reversed an element of law that could be traced back to English common law of 1278, Justice said.

Texas and most other states changed laws regarding the insanity defense after John Hinckley was found not guilty by reason of insanity to charges related to his 1981 attempted assassination of President Reagan.

Texas reacted by striking from its law a clause that said a defendant could be found not guilty by reason of insanity if he "was not capable of conforming his conduct to the requirements of the law." The change made it easier for prosecutors to win convictions, Justice said, because they had to prove only that the defendant knew what he was doing and knew his conduct was wrong.

The way the criminal justice system treats the mentally ill reflects poorly on society, Justice said.

"If we reject the moral necessity to distinguish between those who willingly do evil, and those who do dreadful acts on account of unbalanced minds, we will do injury to these people. But the ultimate injury is the one we will inflict on ourselves, and on the rule of law."

Way back when, I asked if Andrea Yates had done what she did as a result of a brain tumor, would people still judge her as harshly? The sad thing is that this question drew comments from people for whom the answer is a firm Yes. All I can say is that I hope none of them ever have to deal with a mentally ill family member.

If you need further convincing that "mental illness" is really "brain illness" and not Corporal Klinger/One Flew Over The Cuckoo's Nest foolishness, I suggest you read Ted Barlow's post on the fraud of Freud.

(On a side note, I just want to take this opportunity to say that whatever you may think of him, "Judge Justice" is possibly the best name ever. Of course, if he were ever to be appointed to the Supreme Court, he'd be - wait for it - "Mr. Justice Justice".)

Appeal for help

OK, I give up. I'm appealing to all the lawyers who read this site. Please take a look at this Salon article about Ira Einhorn and explain to me why exactly the law that Pennsylvania passed in which "any American fugitive caught in a country where extradition is denied on account of a previous in-absentia conviction may, when returned to the United States, be guaranteed a new trial" is such a human rights travesty. I just don't get it. Thanks!

Foiling the moon rock thieves

Let's give our thanks to Axel Emmermann, who tipped the FBI to a solicitation to buy "a rare and historically significant piece of the moon", thus leading to the capture of the Moon Rocks Four. It's nice to know in this day and age that you can still trust the morals of Belgian rock collectors.

The death penalty

Two recent items have gotten me thinking about the death penalty. This article in The American Prospect talks about recent shifts in opinion on the death penalty. I find that sort of thing to be more wishful thinking than anything else, and I'm never sure how much I sympathize with it. I've gone up and down on the death penalty. I remember once as a teenager trying to convince my Dad that the death penalty was just and good. How exactly I came to be to the right of my Catholic, Republican father remains a mystery to me. I think I've been making up for it ever since.

Despite my relentless surge to the left on many issues, I remain basically in favor of the death penalty. I just feel that it's the only possible response to certain crimes and certain criminals. Back in the day when Mario Cuomo was governor of New York and the death penalty was not on the books, a prisoner serving a life sentence killed a guard. As it happened, this was a rare loophole in the New York penal code - a lifer who committed murder was the one type of New Yorker who was eligible for the state-sponsored big dirt nap. Cuomo categorically ruled out the possibility of executing this killer, in keeping with his principles. I always thought Cuomo gave him a free pass. How else can you punish someone who's never going to breathe outside air again? It made no sense to me, then or now.

As with many things, of course, familiarity can breed contempt, and there's no place more familiar with the death penalty than Texas. There are many capital cases in Texas that make one question one's commitment to the idea of governmental killing. One such case, profiled in the July Texas Monthly is that of Darlie Routier (subscription required), a housewife from Rowlett who was convicted on the bloody stabbing murder of her two young sons. Darlie has claimed her innocence all along, saying that the boys were killed by an intruder, who also stabbed her. There's a pretty good case that she may be right. At the very least, there's room for a fair bit of doubt.

The evidence presented at trial painted a circumstantial picture of Darlie's guilt. Her story varied. Her stab wounds were described as "superficial" by one doctor. When police arrived, she seemed more concerned with her own injuries than the boys'. There was evidence that her blood had been wiped from the sink, as if she'd cleaned up after cutting herself, and evidence that the basement screen which was the alleged means of entry for the iintruder had been cut by a knife from the Routiers' kitchen. Possibly the most damning piece of evidence was a videotape of Darlie, on what would have been her son Devin's birthday, wishing him a Happy Birthday and spraying Silly String on the tombstone.

But the evidence wasn't clear. Despite reports of financial difficulties, the boys had minimal life insurance policies - $10,000 each, which didn't leave much after the funerals. (Husband Darin was insured for $800,000.) One of Darin's socks, which contained only a few drops of the boys' blood, was found on the street several houses away. The timeline made it virtually impossible that Darlie could have dropped it there before the cops arrived. One of the boys was still barely alive when paramedics arrived, so instead of making sure they were both dead before calling 911, he could have survived to finger her. Finally, unlike Andrea Yates or Susan Smith, Darlie had no history of depression, incest, abuse, or adultery.

In any event, Darlie was convicted and now sits on death row. Since her conviction, some truly bizarre things have happened. The court reporter in her case was fired after a staggering 33,000 errors were discovered in the case transcript. Most amazingly, her husband has admitted that his financial troubles at the time of the murders were such that he had hatched a plan to hire a burglar to break into the house, steal a bunch of stuff, then sell it back after the insurance company paid out. This has led to some speculation that the killings were a hit on Darlie gone wrong, as she was insured for $200,000.

Her appeal is underway, and I daresay we'll be faced with another case where questions of punishment will be overshadowed by questions of guilt or innocence. There's a lot of people out there who think Darlie got screwed - do a Google search on "Darlie Routier" and see for yourself. This web page has registered over eight million hits. Someone out there believes her.

I do still believe that the death penalty is a viable option. I just believe we need to be very careful about how and when we apply it. I'm far from convinced that Darlie Routier deserves it.

Sleeping lawyer is incompetent counsel

So says the Supreme Court, which refused to hear the appeal of the state of Texas in the Calvin Burdine case. This case is Exhibit A for death penalty opponents and people who think Texas is barbaric. Justice was served here. Let's learn our lesson and move on.

Forgive, maybe, but don't forget

Another op-ed in today's Chron is this plea for forgiveness for priests accused of sexual misconduct:

The pastor of my parish has been removed because of a recent allegation that 35 years ago he committed an act of sexual misconduct involving a teen-ager.

In fact, I don't believe the allegation, but it seemed important to ask myself: What if the allegation were true? Would I still support the Rev. Kenneth Nee, who served Our Lady of Fatima parish in Manorhaven, N.Y., and be upset about his removal from his position, the parish and our lives?

[...]

The risk of recidivism is a strong argument for removing from ministry priests who have been guilty of sexual abuse. But it is a strong argument only in those cases where there is a risk of repeat offense. The mere fact that someone committed an act does not mean there is risk he will do it again. I am not talking about pedophilia, which clearly presents an ongoing risk. In cases, however, that involve newly made accusations of a single act that occurred 20 or 30 years ago, there seems no risk of repeat offense. The fact that the priests in question have effectively ministered their parishes in the intervening years without any further allegations of wrongdoing testifies to that. The absence of repeated offenses testifies to the fact that some acts of sexual abuse against minors are the product of a moment of sin and not pathology.

So, if not fear of recidivism, what is the argument for removing from ministry a priest who many years ago committed a single act, as heinous as the act may have been?

The author, a law professor and mother of a 9-year-old daughter, wants to know why one as-yet-unproven accusation of abuse from many years ago justifies the removal of a priest who has otherwise served his parish well. She invokes the Catholic message of redemption heavily:

So, if not fear of recidivism, what is the argument for removing from ministry a priest who many years ago committed a single act, as heinous as the act may have been?

Is it that we expect priests to be sinless? [...] Can a church built on a belief in Christ deny the possibility of redemption and refuse to forgive?

[...]

Some may dispute this phrasing of the issue, arguing that we are not talking about whether to forgive, but simply whether to allow the priest to continue his ministry. That distinction is lost on me. If we forgive, if we accept the possibility of redemption, what is served by removing the priest?

Well, not to put too fine a point on it, but the scandal currently embroiling the Church is not just about the actual abuse. It's about the long-term conspiracy to silence accusers and shelter abusers. It's about silent payoffs and palming predators off on unsuspecting parishioners miles away. It's about the fundamental breach of responsibility on the part of the Church hierarchy.

So my short answer to this author would be: How do you know that this is the only allegation? How would your opinion change if an actual investigation led to other charges? How many alleged victims would have to turn up before you'd be willing to put the interests of criminal justice ahead of the interests of redemption and forgiveness?

Let's assume for a moment that the accusation is true, and that there are no other incidents. I'm not sure how the justice system should be served in this case. Perhaps 35 years of otherwise spotless service is sufficient to balance the scales, but who gets to make that call? The unaffected parishioners? The pope? Call me a hang 'em high conservative, but just maybe we ought to consult the local District Attorney first. In the meantime, without any further information than the author's faith in her priest, I can't say that removing him from duty until the question of his guilt is resolved is too much to ask.

After all, redemption and forgiveness were never meant as get-out-of-jail-free cards. The accused priest may be paying back his debt to God, but it seems to me that unless the victim is willing to forgive and forget - which apparently isn't the case - then some rendering unto Caesar needs to take place. Removal from duty is simply part of that. The sad thing is that when you think about it, this change in Church policy is just another way for the hierarchy to protect itself. Had they put less emphasis on their own self-preservation in the first place, this particular priest might still be able to do his job right now.

I admit that with all the publicity surrounding the Church and its troubles these days that some pathetic attention-seekers may come out of the woodwork and make false accusations about abuse. If that's the case here, then indeed this author's parish will be hurt by losing the services of their priest. That's a shame, but honestly I can't see how the Church could or should handle things differently. Leaving him in place while the charges are investigated has a much greater possible hurt if it's the wrong thing to do.

Unfortunately, there's no wiggle room here. Zero-tolerance policies are often as stupid as they are inflexible, but let's face it: The Church had no choice. I sympathize with those who may be adversely affected by this, but let's not forget how it came to be this way.

MailBombBoy overview

Kathy Kinsley points to this summary of how Luke Helder was caught, compiled by Mary Wehmeier.

Yesterday about 5 PM Pacific Time, Luke J. Helder, AKA Mailbomb Boy was arrested after he tried to outrun the Nevada Highway Patrol for over 50 miles on I-80. The car chase exceeded over 100 mph at times . Federal authorities were tipped off by his father after a letter he received according to court documents filed Wednesday. Obviously Dad wasn't thrilled at the letter he got from Luke.

The hand-written letter, Helder told investigators, referred to death and dying and contained several anti-government comments. After receiving the letter at his home in Pine Island, Minn., Cameron Helder talked by phone with his son's roommate in Menomonie. The roommate, James Divine, and two friends searched Luke Helder's bedroom and found clues under the bed that suggested Helder might be involved in the bombings. They found a bag with nails, paper clips, a funnel and two plastic bottles labeled shotgun or gun powder, according to the court papers.

All I can say is that if you can read the word "Menomonie" without immediately humming "do doo de do do", well, you're a better person than I am.

Grist for the mill

Today's op-ed pages in the Chron includes this piece by a former death row inmate who was recently freed by DNA evidence. Regardless of where you stand on the death penalty - I'm more for it than against it - it's worth reading.

BTW, I predict that at least one crayon-wielding yahoo will send a letter to the Chron accusing them of having some kind of liberal-soft-on-crime bias for printing this. If said yahoo is a member of a so-called "victims' rights" group like Justice for All, I will be very non-surprised.

On an odd side note, the GIF they use for their runoff endorsements link is (modulo the text) the same image I've seen in various get-rich-quick spams. Very weird.

I fought the law and the law lost

Houston District Attorney Chuck Rosenthal has sent a letter to Harris County Attorney Michael Fleming saying "it will be difficult to prosecute" people who are ticketed for speeding if they demand a jury trial.

Under Texas law, motorists who exceed posted limits are assumed to be driving in an unsafe, imprudent manner. But they actually are ticketed for driving in an unsafe manner, not because they went over a speed limit.

The law thus opens the door to the argument that a motorist who exceeds the speed limit was nonetheless driving in a safe manner, Rosenthal said.

"I believe that it would be difficult to convince a jury that a speed in excess of 55 is unreasonable, given the historical fact a speed of 70 was considered by the Texas Transportation Commission to be reasonable and prudent a few short weeks ago," Rosenthal wrote.

Pretty interesting. I must admit, I hadn't thought of it. One of Houston's dirtier secrets is that you can fight a speeding ticket and win. Some years ago, the speed limit on a section of service road for Loop 610 raised its speed limit from 35 to 40 after a string of motorists successfully challenged tickets on the grounds that a study of actual use had never been performed to determine what a proper limit should be. This section of the service road runs through the city of Bellaire, which is a notorious speed trap. The state eventually did a study, and when they discovered that the average speed on that stretch of road was 44 MPH, the limit was raised.

Of course, some people simply hire the right lawyer when they can't or don't want to take Defensive Driving. I know several people who have used David Sprecher's services to get tickets dismissed. There's nothing like being the top expert in an obscure but lucrative profession.

The ultimate effect here may be the retraction of the lower speed limit, whose implementation Attorney Stafford worked to prevent in the first place:

Stafford is trying to persuade the commission to substitute another measure for the lowered speed limit, such as tighter controls on industrial pollution.

He said he will present the TNRCC with a highway safety expert's findings that a 55-mph speed limit creates dangers because motorists drive at vastly different speeds.

Stafford said the signals coming from the TNRCC are that it will restore the old speed limit.

"I think the commission will vote 'yes,' " he said. "I remain optimistic."

I can already see the letters to the editor decrying the waste of putting the 55 MPH signs up only to take them down again in short order. Nothing like a well thought out plan.

Oprah talks to the Central Park Jogger

Remember her? In 1989, a 28-year-old investment banker in New York went jogging in Central Park, where a group of "wilding" teenage boys beat and raped her and left her for death. Today she's recovered from her injuries, married, and remarkably bears no resentment towards her attackers, all of whom have served out their sentences. You have to get past the Oprah factor here, but I assure you it's worth your time to read.

UPDATE: Who knew when I wrote this that there'd be all those revelations about how NYPD and the Manhattan DA's Office totally botched this case?

The Chron gets prickly

I don't usually bother with the Houston Chronicle's Sounding Board editorials, which are written by various members of their editorial board. Most of the time what they have to say is mealy-mouthed platitudes. Today, however, board member James Gibbons lays into a bunch of people, including Harris County District Attorney Chuck Rosenthal, the Yates jurors, and so-called victims' rights group Justice for All for their inability to tell right from wrong in the Yates case. Go check it out, for who knows when you'll see such an excellent rant on the Chron's pages again.

Blaming Rusty

Andrea Yates' relatives place some blame on Rusty Yates for what happened. Rusty is firing back:

Asked about criticism of his role, Russell Yates told NBC's Today show today that some people "don't understand the biochemical nature of Andrea's illness ... so they'll say there must have been something else going on in that household, or there must have been this or that and it's all false."

Umm, how about the fact that after the fourth child was born, the Yateses were warned that having another child could trigger another psychotic episode in Andrea, like the one she'd just had that caused her to try to kill herself with a kitchen knife? This didn't stop them from taking Andrea off Haldol so she could get pregnant again. Whose decision was that, Rusty? In whose best interest was it? You're right when you say that Andrea's condition was a biochemical one. The problem is that from where we all sit, you didn't do everything in your power to help her overcome it. You better believe people are going to criticize you for that, and you deserve every single word of it.

(Thanks to Ginger for the link to the timeline of the Yates case.)

Krauthammer on Yates

Charles Krauthammer explains why he would have voted to acquit Andrea Yates. I don't think you can say it any better than he does here.

Girl, exonerated

There was a lot of schadenfreuding going on when Winona Ryder was busted for shoplifting. Now it appears that the videotape which supposedly showed her cutting off the security tags on several items in fact shows no such thing. If anything, the tape is quite exculpatory, and the LA District Attorney's office has backed off its original claims.

Don't you just hate it when an excellent story is ruined by an ugly fact?

Andrea Yates found guilty

It took the jury only 3.5 hours to reach the verdict, which surprises me. I thought they'd be in there a lot longer than that.

The Andrea Yates trial

I've avoided commenting on Houston's other big story, mostly because I'm conflicted about it. What Andrea Yates did was horrible, but I don't believe that killing her is in the interests of justice.

I think we can all agree that Andrea Yates is ill. Her attorneys are going for an insanity defense, but this is a tall order. According to Texas law, you must "at the time of the conduct charged...not know that [your] conduct was wrong". However sick Yates is and was, revelations that she considered using a knife to kill her children don't make it easy to conclude that she didn't know what she was doing at the time.

I think what really bothers me about this whole thing is how polarized discussion of it has been from the beginning. Wanting to understand how this could happen and how we could prevent it from happening again does not mean wanting to absolve Andrea Yates from all blame. Questioning the appropriateness of the death penalty in this case does not mean that one wants to see Yates walk out of the courtroom with her freedom and a lifetime supply of Zoloft.

There's a difference between what Andrea Yates did and what, say, Susan Smith did, and it's not in the number of dead children. Ask yourself this question: If Yates' erratic and ultimately lethal behavior had been caused by a brain tumor, would you feel differently about her? If the answer is yes, then why is postpartum psychosis and schizophrenia not enough to mitigate your emotions?

In The New Republic, Michelle Cottle proposes sterilizing Andrea Yates as part of her sentence. This is a can of worms in a tar baby on a slippery slope, but it's hard to argue that another Yates pregnancy would be in any way a good thing. I'm having a hard time resisting the urge to say "And while you're at it, let's fix Rusty Yates, too."

Like I said, I'm conflicted. I'm sure glad I wasn't called to be on this jury, though I daresay they'd have voir-dired my butt out of there. It will be interesting to see what the jurors have to say after the trial, regardless of the verdict.

Crime and punishment redux

My dad has his say about mandatory sentencing and judicial discretion. He did 14 years on the bench in New York, so he's got some perspective on the issue.

Speaking of such things, the California Supreme Court just dealt a blow to the state's three-strikes law. They didn't overturn it, but declared that giving a life sentence for petty theft is "cruel and unusal".

Crime and punishment

Oliver Willis has his say about what jail should be about. In a word, says Willis, it's about punishment. I think this position, while emotionally satisfying, is wrong on several levels.

First, I'll stipulate that certain crimes and certain criminals deserve harsh punishment and nothing more. It is for this reason that I do not oppose the death penalty. I have problems with how cavalierly we issue it, with the restrictions on appeals, and with the overly skewed number of non-whites on death row, but at the end of the day I believe that death is sometimes the only appropriate response.

Similarly, I have no qualms with long sentences for violent crimes. Nor do I quibble with making violent and hardened criminals serve the full extent of their sentences, or with throwing away the key on habitual reoffenders. Parole is a privilege, and it belongs to those who earn it.

Finally, I'd be perfectly happy if we got serious about white collar criminals. You know, the kind who merely wipe out people's life savings instead of bashing them over the head. If someday Jeff Skilling does a ten-spot in Huntsville, you won't see me crying for him.

The problem is that there are plenty of people in jail who don't fit any of the descriptions above. Most people who enter jail are going to get out before they're eligible for Social Security. It seems to me that it's in society's best interests to do something to convince these people that they're better off joining the ranks of the productive citizens rather than go back to the old habits that got them sent up the river in the first place. Lots of prisoners are illiterate. Libraries and literacy programs help some of them overcome that, which in turn makes them more likely to find a job when they get out. Isn't this a win-win situation?

Well, maybe we should just lock 'em all up and throw away the key. One strike and you're out. I hope you're prepared to pay for that. States are already running out of money for prisons. Would you like to drain resources from education, road-building or law enforcement to keep the prison building industry humming? Don't forget that most people start their criminal careers when they're young. Locking them up for good means not only are we removing a potential contributor to the economy just as he's entering his wage-earning years, it means we have to pay for that person's upkeep for decades. That just doesn't sound like good economic policy to me.

If it costs so much to feed and shelter them, why not just kill them all? Well, that's what they used to do in Afghanistan. Do we really wanna go there?

I believe that criminal justice has three goals: Deterrence, rehabilitation, and punishment. Jail should be bad enough that people don't want to risk going there, but not so bad that it regularly spits out worse people than it takes in. In an ideal world, the justice system would take those who are merely young and foolish and show them the error of their ways, thus not only setting them back on the right path but providing a good example for those around them. (Yeah, I know, but I'm idealizing here. Work with me.) Rehabilitation and deterrence work hand in hand. By deterring crime and reforming criminals, we can spend less on jails and more on things that actually enhance our lives. And let's not overlook the idea that some crimes really don't deserve prison sentences. Think "mandatory sentencing for drug offenses" here. If we stop locking up pot smokers for thirty years, there will be plenty of room in prison for those who really need it.

The funny thing is that throwing more people in jail for longer periods does not necessarily correlate with a drop in crime. I cite the Justice Policy Institute report on the 1990's, which says

The connection between incarceration and crime rates appears as elusive at the end of the 90s as it has been in previous decades. There is little correlation between states with skyrocketing incarceration rates and the recent crime declines witnessed across the country. The "New York Miracle" - the sharp drops in homicides and violent crime rates experienced by America's largest city between 1992 and 1997 - have occurred at the same time that New York State had the second slowest growing prison system in the country, and at a time when the city's jail system downsized.

New York's modest prison growth provides a solid contrast to the explosive use of incarceration in other states. During the same 1992-97 period, California's prison population grew by 30%, or about 270 inmates per week, compared to New York State's more modest 30 inmates a week. Between 1992 and 1997, New York State's violent crime rate fell by 38.6%, and its murder rate by 54.5%. By contrast, California's violent crime rate fell by a more modest 23%, and its murder rate fell by 28%. Put another way, New York experienced a percentage drop in homicides which was half again as great as the percentage drop in California's homicide rate, despite the fact that California added 9 times as many inmates per week to its prisons as New York.

All I'm saying is that we should use some common sense in dealing with crime and punishment. Not all crimes are equal, nor are all criminals. To quote this Nevada Journal article:

It was an appeals court judge in New York who pointed out in a magazine article that a penniless mother who steals powdered milk for her baby and a thug who steals powdered milk to cut heroin have committed the same crime. Does anyone really want to see them given identical, "mandatory" prison sentences?

Let's lock up the right folks for the right reasons. That's the best approach.