March 2, 2010
January 31, 2010
“We close at 5:00″
Judge Berchelmann issued his findings the other day in the ethics complaint against Judge Keller. (This is the case where Keller stopped Michael Richard’s lawyers from filing a last-minute appeal to stop his execution: “We close at 5:00,” she said.)
He says Judge Keller is mostly blameless. Instead, he finds fault with Richard’s lawyers. “TDS (Texas Defender Services)” he says, “has only itself to blame” for Richard’s execution.
What’s surprising about Berchelmann’s judgment is that it’s an answer to a question that wasn’t asked.
The question that was asked was whether Judge Keller followed the rules that applied to judges. By finding the lawyers responsible for Richard’s death he’s answering a different question: “Was TDS responsible for Richard’s death?”
That judges are supposed to answer the question that is presented is a basic rule of law. (One of the reasons for that rule is illustrated by this case: Not knowing they’d been charged with incompetence, Richard’s lawyers could not present a defense.)
When told Richard’s lawyers were trying to file an appeal after 5:00, Keller had two choices. She could say, “Judge Johnson is the assigned judge to hear appeals after 5:00,” or she could say, “Tell them we close at 5:00.”
One is consistent with being an impartial (rather than pro-prosecution) judge.
When asked, Keller said she’d do it all over again.
Berchelmann says he does not believe her:
“Although she says that if she could do it all over again she would not change any of her actions, this cannot be true. Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice.”
Berchelmann may not believe her, but I do.
January 27, 2010
Thoughts on Citizens United v. Election Commission
I’m not sure Citizens United is the disaster some have it out to be. I don’t think we’re about to experience the end of democracy, or see Ronald McDonald in the White House.
I’m also not sure it’s wrong – in fact, I think it’s correct.
Descriptions of Citizens United in the media have been inaccurate. Which is not surprising. The opinion is obscure. The syllabus alone runs to 7 pages, and with dissents and concurrences it all adds up to 183 pages.
The meat of the decision starts on page 27, where the Court quotes the First Amendment:
“Congress shall make no law… abridging the freedom of speech…”
While we typically think of the First Amendment as a right, technically it’s a prohibition. It’s a limit on government power. If you accept this, then the identity of the speaker doesn’t matter. Or, as the Court says, “The identity of the speaker is not decisive in determining whether speech is protected.”
The Court goes on to identify the law as the kind of law the Court has traditionally been most suspicious of: it is a law enforced with a criminal penalty that strikes at speech at the heart of the First Amendment: political speech – in this case, speech about candidates for public office.
The law is “an outright ban, backed by criminal sanctions. [It] makes it a felony for all corporations – including nonprofit advocacy corporations – either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications…”
The Court identifies the ACLU and the NRA as organizations affected by the ban. The ACLU could, for example, say “Support candidates who support free speech,” but it can’t say “Support candidate X who supports free speech.”
Finally, the law discriminates: if a corporation owns a media company, it’s free to do as it likes. The corporations that own Fox News and The New York Times have freedoms other corporations do not.
The Court identifies “strict scrutiny” as the constitutional test to be applied. (Though, interestingly, does not seem to actually apply it.) The Court points out that, in effect, it’s returning to an older line of cases, and spends many pages attacking the rationale behind the decision it’s overturning.
For my part, I have no problem with the idea that corporations don’t have “rights” in the human sense of the word. Corporations, are, however, little more than associations of people, and the mechanisms set up to stop them from identifying with or supporting certain candidates strike me as cumbersome and unworkable – more likely to snare the innocent than catch the guilty. Corporations that really want to get involved in politics, in other words, are already doing it – they’re just being sneaky about it.
Moreover, the specter of a new flood of corporations flooding the airwaves to tell us whom to vote for seems farfectched. Does McDonalds really want to piss off half their customers by supporting the candidate of the other half? Does Pepsi really want to be known as “The Voice of the Republican Party”?
I doubt it.
January 5, 2010
DNA Testing
DNA is often considered definitive proof in criminal cases.
In “Calculated Risk” Gerd Gigerenzer reminds us it may not be as reliable as people think it is.
The expert witness testifies that there are about 10 million men who could have been the perpetrator. The probability of a randomly selected man having a DNA profile, that is identical with the trace recovered from the crime scen is approximately 0.0001 percent. If a man has this DNA profile, it is practically certain that a DNA analysis shows a match. If a man does not have this DNA profile, current DNA technology leads to a reported match with a probability of only 0.001 percent.
A match between the DNA of the defendant and the traces on the victim has been reported.
Question 1. What is the probability that the reported match is a true match, that is, that the person actually has this DNA profile?
Question 2. What is the probability that the person is the source of the trace?
Question 3. Please render your verdict for this case: Guilty or not guilty?
You might want to think about it for a minute.
According to Gigerenzer, the answer to the first question is that the probability of a “true match” is 9%, or 1/11. In other words, the chances are 91% that the defendant’s DNA doesn’t match the perpetrator’s – that the lab made a mistake.
Gigerenzer says the chances that the defendant is the “source of the trace” – in other words, that it was his DNA – is even lower: 0.9%, or less than one in a hundred (1/110, to be precise).
Of course, all that depends on the defendant having been selected at random, from a pool of 10 million men. That’s not usually how it happens. If there is other evidence that the defendant is guilty – in other words, some other reason the defendant was tested, other than being one among 10 million men – Gigerenzer’s calculations won’t work.
Still, his calculations show how dangerous it is to rely on DNA alone.
More importantly, Gegerenzer discusses the possibility of lab error, about which surprisingly little is known.
The laboratories that do the work are surprisingly hostile to outsiders. Independent testing of the results of their work is rare. The FBI has resisted efforts to discover the results of their own internal tests.
Gigerenzer says that one of the few outside studies of laboratory error, two out of three labs reported false positives (matches that weren’t there), when sent a batch of 50 samples. In a subsequent test, one year later, one out of the three reported a false match.
Experts say the error rate is between 1 in 100 and 1 in 200.
All of which makes DNA expert-witness testimony about the accuracy of DNA tests meaningless. When an expert testifies that the chances of a random match are 1 in a million, or whatever, he’s talking about the chances excluding the possibility of human error.
Human error, however, can’t be excluded.
January 4, 2010
Glass Half Full
Grits is always interesting. I thought this bit was especially noteworthy: According to the Office of Court Administration, the Court of Criminal Appeals is less than indiscriminate when it comes to overturning decisions of the lower courts. Austin decisions came in for special attention 35.5% of the time. By way of comparison, Dallas decisions merited special attention 3% of the time, Ft. Worth 3.3%, and the 14th court in Houston 2.5%.
In other news, the CCA wrote fewer opinions last year than in any year since 1994. So there is a silver lining, I guess.
November 15, 2009
When I first heard about the Fort Hood attack, I thought the political fallout might have something to do with gun control. (Gun nuts arguing that soldiers ought to be armed, to protect themselves against… each other.)
It didn’t even occur to me they’d use it against Obama. But apparently they have, and they are. (The attack proves, says Jonah Goldberg, that Obama, unlike Bush, can’t keep us safe from terrorism.) The attack is terrorism, they say, because Nidal Hasan is Muslim. (There are a number of other facts about Hasan – that he was an officer, male, a psychiatrist, a US citizen, and a soldier… but those facts are irrelevant, I guess.)
Unfortunately, there are more mass shootings in the US in the past few years than I can remember. But here’s a list of some of them.
- Robert Stewart, 45, killed 8 at a nursing home in NC. 2009.
- Michael McLendon, 28, killed 10 in rural Alabama. 2009.
- Robert Hawkins, 19, killed 8, at a mall in Nebraska. 2007.
- Seung-Hui Cho, 23, killed 32 at Virginia Tech. 2007.
- Charles Roberts IV, 32, killed 5 girls at an Amish school in Penn. 2006.
- Jeffrey Weise, 16, killed 9 at a high school in Minn. 2005.
- Terry Ratzmann, 44, killed 7 at a church in Wisconsin. 2005.
- Byron Uyesugi, 40, a copier repairman, killed 7 at Xerox in Honolulu. 1999.
- Mark Barton, 44, former day-trader, killed 9 at two brokerages in Atlanta. 1999.
- Eric Harris, 18, and Dylan Klebond, 17, killed 12 at Columbine H.S., Colorado. 1999.
- John Allen Muhammad, 41, former Army sniper, killed 10 out of the trunk of his Chevy Caprice. 2002.
- Timothy McVeigh, 26, Gulf War veteran, killed 168 with a truck bomb in Oklahoma City. 1995.
- George Hennard killed 23 at a Luby’s in Lubbock, TX. 1991.
I’m not sure what all this proves, exactly. Other than that it happens too regularly. And that there is, apparently, a desperate need for psychiatric services aimed at angry, resentful men in this country. Particularly if they have access to high-powered weaponry.
October 29, 2009
Jailhouse lawyer
Adam Reposa’s habeas writ to the Court of Criminal Appeals was rejected the other day.
Adam, btw, is the Austin criminal defense attorney who made a “simulated masturbatory gesture” in Court 6. Technically, it was aimed at the prosecutor, but the judge was not amused.
He was sentenced to 90 days.
The Court of Criminal Appeals is, of course, Texas’ court of Last Resort. Although he does have other options, should Adam choose to pursue them.
Among other things, the court found that Adam’s hand gesture was “an intentionally disrespectful act serving no purpose but to insult the prosecutor,” and that despite the fact that the gesture was not directed at Judge Breland, it was nevertheless an “act of disrespect” and “an affront to the court.”
Here’s the transcript:
It’s hard to know what to think about this. On the one hand, you hate to see him go to jail, especially for something as stupid as this (I like Adam). On the other, it’s a little like seeing the guy who runs every stop sign finally get in a wreck. You’re like, “Dude, how did you not see this coming?”
(Keith Lauerman had this to say: “Reposa succeeded in rallying the Defense Bar against his behavior with sheer acts of defiance and arrogance… He made his bed and some would agree that it was time to sleep in it.”)
Judge Breland – perhaps one of the nicest people you will ever meet – said this:
The silver lining – so far as Adam is concerned – is that if he does go to jail, he’s likely to come out with more clients than he has now. Plus, there’s nobody who’d be less affected by it. “Water off a duck’s back” comes to mind. (”Bulletproof” – maybe not. But shameless & fearless – definitely.)
Still, ninety days is too much. People who commit real crimes get less than that.
October 27, 2009
Cameron Todd Willingham, Part II
I happened to catch a segment on CNN’s “Anderson Cooper 360″ about the Willingham case, called “Keeping Them Honest.” It’s interesting. The purpose seems to have been to impugn David Martin, Willingham’s trial lawyer. But what it actually did, at least from my point of view, was to demonstrate CNN’s sloppiness. Randi Kaye (CNN): “The prosecution had two arson investigors on the stand to prove that Willingham was guilty. Did you have an expert testify?” David Martin (defense atty): “We couldn’t find one that said it wasn’t arson.” Randi Kaye (in authoritative voice-over): “Couldn’t find one? But since the trial nine, that’s right, nine different arson experts have concluded the fire was not arson.” What Kaye either doesn’t know, or chooses to omit, is that between the trial, and now, there’s been a sea-change in the way experts go about testifying about fires. Specifically, much of what they thought they knew about how to tell the difference between an “innocent” fire, and arson, turned out to be wrong. In other words, it’s not so easy to identify arson as they used to think. The New Yorker, among others, has throroughly explored this part of the story. The misrepresentation changes the story from one about how careful you have to be, before condemning someone, to one about a bad lawyer. It’s too bad, because the real story was more interesting.
October 19, 2009
Theft of Service – Debtors Prison?
Theft of Service, Texas Penal Code 31.04, is a messy statute. What it seems to say is that failing to pay your bills is the same as theft.
§ 31.04. THEFT OF SERVICE. (a) A person commits theft of
service if, with intent to avoid payment for service that he knows
is provided only for compensation:
(1) he intentionally or knowingly secures performance
of the service by deception, threat, or false token;
(2) having control over the disposition of services of
another to which he is not entitled, he intentionally or knowingly
diverts the other’s services to his own benefit or to the benefit of
another not entitled to them;
(3) having control of personal property under a
written rental agreement, he holds the property beyond the
expiration of the rental period without the effective consent of
the owner of the property, thereby depriving the owner of the
property of its use in further rentals; or
(4) he intentionally or knowingly secures the
performance of the service by agreeing to provide compensation and,
after the service is rendered, fails to make payment after
receiving notice demanding payment.
In any event, that seems to be what the legislature intended. According to the Bill Analysis, the section was added in order to “protect service providers that…cannot collect the balance due from the customer,” by holding accountable “people who agree to pay for services… and then refuse to pay.”
“If they could be held criminally accountable,” it says, “these people [customers] would be more likely to repay their debts to businesses.”
Which makes sense. Pretty much all debt collectors know if you threaten to put people in prison (or to break their legs) they’re more likely to find the money that they owe.
So is debtors prison, having been abolished in the rest of the world in the nineteenth century, now alive and well in Texas?
It’s hard to say. I would argue the bit about “intent to avoid services” applies not just to the act of not paying, but to securing the services as well. If true, that would make it quite a bit harder to prosecute people for getting behind on their bills, since prosecutors would have to prove they set out to steal. Which is quite a bit different from proving merely that somebody has unpaid bills.
Unfortunately, there’s even more to the statute – it goes on to say intent is presumed if a debt goes unpaid for ten days:
(b) For purposes of this section, intent to avoid payment is
presumed if:
(1) the actor absconded without paying for the service
or expressly refused to pay for the service in circumstances where
payment is ordinarily made immediately upon rendering of the
service, as in hotels, campgrounds, recreational vehicle parks,
restaurants, and comparable establishments;
(2) the actor failed to make payment under a service
agreement within 10 days after receiving notice demanding payment;
(3) the actor returns property held under a rental
agreement after the expiration of the rental agreement and fails to
pay the applicable rental charge for the property within 10 days
after the date on which the actor received notice demanding
payment; or
(4) the actor failed to return the property held under
a rental agreement…
Which makes no sense – and is arguably unconstitutional. According to the Supreme Court, a presumption must have at least some rational basis in fact. Here the legislature is saying the mere fact you’re behind on a bill shows you set to steal. However, the most people who owe money never set out to steal from anyone.
The fact is any number of businesses thrive on putting people into debt. They make calculated decisions involving interest rates and default rates and whether to check – or not check – peoples’ credit. The Rent A Center/ Rent A Wheel/ Payday Loan industry is just one example. Criminalizing bad credit is good for them (maybe) – but is it good for the rest of us?
“Those who made the laws have apparently supposed, that every deficiency of payment is the crime of the debtor. But the truth is, that the creditor always shares the act, and often more than shares the guilt, of improper trust. It seldom happens that any man imprisons another but for debts which he suffered to be contracted in hope of advantage to himself, and for bargains in which proportioned his own profit to his own opinion of the hazard; and there is no reason, why one should punish the other for a contract in which both concurred.”
–Samuel Johnson 1758
Update: Theft of Service may also violate Tate v. Short, to the extent it incarcerates people for debts they can’t afford to pay.
October 9, 2009
Foolish Laws, and Lawmakers
The Texas legislature has a bad habit of creating a crime whenever it sees a problem out in the world somewhere. Perhaps especially when the problem affects a special interest or a lobby.
For example, did you know it’s a felony to bad-mouth a bank? (Texas Finance Code – Section 59.002.)
Or that it’s a third-degree felony to do business in a grain warehouse without a license? (Texas Agriculture Code – Section 14.072.)
Or how about “Thrashing Pecans“, the crime of causing pecans to fall from a pecan tree “by any means, including by thrashing,” without the written consent the owner, the mayor, or a judge?
According to Grits, there are (or were – in 2007) 2324 separate felony offenses in Texas, including 11 that involve oysters. And the number keeps on growing.
I’ve already posted about Improper Photography – a law that criminalizes transmitting pictures with a lascivious intent – and about Penal Code 28.08 Graffiti – which makes it a crime to “make markings” on school property.
The thing about drafting laws to create new crimes, or harsher punishments, is that it allows politicians to “send a message” without costing them anything. Unlike hiring new officers, or judges, or social workers or teachers, drafting legislation is practically free.
Of course, there is a cost, it’s just not obvious, or immediate.