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The last decade has unleased a torrent of new research on the human mind, its origins and its functions.  As evolutionary biologists and cognitive neuroscientists peer ever deeper into the brain, they are discovering more genes, more brain structures and more physical coordinates within the brain itself that correlate to empathy, disgust, joy, deliberation, anger, rage and all the other manifestations of thoughts and emotions that make us “human.”  This means that these researchers are finding more and more evidence which is beginning to prove that there is a naturalistic basis to all of those feelings and emotions which lend itself to a moral sense within the complete human being.  And these conclusions are being sustained in research on animals as well as human beings.  This prompted the journal Nature to publish an editorial on these new findings on the physical basis of moral thought:

“The idea that human minds are the product of evolution is an ‘unassailable fact.’  With all deference to the sensibilities of religious people, the idea that man was created in the image of God can surely be put aside.”

Or, as V.S. Ramachandran, a neuroscientist at the University of California, San Diego, said in a recent interview, there may be a soul in the sense of the “universal spirit of the cosmos.”  But the idea that the soul is an “immaterial spirit that occupies individual brains and that only evolved in humans - all that is complete nonsense.”  Belief in that kind of soul is “basically superstition.” (more…)

The crawl at the bottom of the PCDLA website announces that its upcoming September 7th meeting will present Arizona criminal defense lawyer Natman Schaye as its featured speaker.  Schaye brings an impressive dossier with him - in private practice for close to three decades, he has represented clients at all stages of trial and post-conviction proceedings in state and federal courts.  It appears that he devotes a substantial amount of time and effort to defending capital cases.  He is a life member of the National Criminal Defense Lawyers Association (NACDL) and served on its board of directors for eight years.  He co-chairs The Champion Advisory Board.  Schaye is also a founder and life member of the Arizona Attorneys for Criminal Justice and teaches various aspects of criminal defense at seminars throughout the country.  When does he find the time?

When not lawyering, he also is also adept at dealing with the media.  Consider the following sound bites:

On judges: ” . . . [they’re] misguided.”

On prosecutors:  ” . . . [they] take up space that could best be utilized for other purposes.”

On Jasper McMurtrey III, a Texan who was convicted of capital murder in Arizona in 1981 but whose conviction was set aside (mainly as a result of the efforts of Natman as the lead appellate attorney), regarding his client’s violent tendencies and changed character since spending 23 years on Arizona’s death row: “I consider him a very good person at this point in his life.  In fact, I think he’s far less dangerous than most of the people I drink with.”

Now this lawyer needs some press coverage when he visits Amarillo in September.  Failure to do so ought to result in the impeachment of the PCDLA’s new president, whoever that is. (more…)

Quick, answer the following questions:

1.  What is the fifth largest city in the U.S.?

2.  What city, whose population steadily declined over the past 50 years, is now the fastest growing major city on the East Coast?

3.  What city with a population of 8.2 million recorded virtually no growth at all since 2005?

4.  Among cities of over 100,000, what city has recorded the fastest growth rate since 2000?

5.  Among cities over 100,000, what three Texas municipalities rank among the top ten fastest-growing cities since 2000?

6.  What city has lost 51% of its population over the past 24 months?  (If you don’t peg this one, give me twenty.)

7.  Name the top ten most populous U.S. cities.

For answers, continue reading. (more…)

I was relieved to see that Patrick Knight had a change of heart at the last moment and chose to make an appropriate last statement rather than crack a joke as planned.  Maybe a last-minute visitor or religious advisor persuaded him to avoid such theatrics.  Or maybe he looked in himself and decided to make those last moments on earth count for something.  It was nice to hear him say something about the Werners.  And he made no excuses about his own culpability in the matter.  It was a long, long ordeal for all concerned - 16 years - and it is done.

On May 9, 2007, the Court of Criminal Appeals issued its opinion in Rodriguez v. State, slip op. no. PD-1013-06, holding that the Ft. Worth Court of Appeals erred in finding that the affidavit which accompanied the search warrant did not support the magistrate’s finding of probable cause.  Of import was the Ft. Worth Court’s observation that key information was omitted from the affidavit which, if it had been included, would have been clearly sufficient to support issuance of the warrant.  However, the Court in Austin disagreed with the conclusions of the Ft. Worth Court, not its analysis, reversed that court’s decision and remanded the case back to the appellate court for consideration of the appellant’s remaining points of error.  Judge Meyers, joined by Judge Womack, dissented.  The dissenting opinion by Meyers is worth repeating verbatim below.

Did officers have a substantial basis for concluding that a search of Appellant’s house would uncover evidence of a crime?  Probably.  Especially since Appellant’s uncle, Cantu, told the officer who arrested him that Appellant’s house contained at least ten kilos of cocaine.  But the officer who went to get the warrant left this piece of information out of the affidavit.  The omission didn’t affect the State at this point since the magistrate issued the warrant based on the limited information that was in the affidavit.  Was that error?  Maybe.  While it’s true that affidavits for search warrants are “drafted by nonlawyers in the midst and haste of a criminal investigation,” as the majority quotes from United States v. Ventresca, 380 U.S. 102, 108 (1965), this does not excuse the affiant from the requirement that the facts must show that there is probable cause to search.  This is the point that the court of appeals makes.

There are other facts that the affiant should have included in the affidavit.  If he had included those facts, there would not be an issue, and we would not all be wasting our time dealing with a fact-specific case that adds nothing to our jurisprudence.  The court of appeals wanted to send a message to the officers: get it right, don’t omit crucial facts from the affidavit.  That message should have been sent by the magistrate.  But, obviously, the magistrate did not know that information was omitted and did not think there was a mistake.  Despite the limited information provided in the affidavit, the magistrate found probable cause and issued the warrant.

The court of appeals may have failed to defer to the magistrate’s finding of probable cause and may have considered that crucial facts were omitted from the affidavits.  And, the court of appeals came to a different conclusion than the majority came to.  However, there is no indication that the court of appeals applied an improper standard in judging the adequacy of the warrant affidavit.  Because this is a fact-specific, unpublished opinion, I disagree with the decision to remand this case.  Instead, we should hold that it was improvidently granted.

                                   * * *

. . . This is a close case that reasonable people could disagree on.  The court of appeals disagreed with the magistrate and the trial court, and the majority disagrees with the court of appeals.  But it is not the job of this Court to thrown in our two-cents worth about whether the facts included in the warrant affidavit were sufficient to show probable cause.  I respectfully dissent. 

                                             (emphasis added)

Man, don’t you wish you could drop something like this in your motion for rehearing and get away with it?  Of course, judges, like the very, very rich, as F. Scott Fitzgerald used to say, are very, very different from you and me.  They’re like law students who get to grade their own papers.

They must breathe rarified air in the halls at the Court of Criminal Appeals.  They certainly don’t want to sully themselves with the unpleasantness which passes for complete, truthful exchanges between veniremembers and defense counsel during voir dire.  Nor are they willing to give defense counsel any kind of break at all when it comes to jury selection. 

In Webb v. State, slip op. no. PD-0074-06, June 13, 2007, the Court affirmed the court of appeals’ ruling that appellant had failed to press with diligence statutory inquiries as to certain grounds for challenge and thus, based on his failure to do so, he gave up his right to complain that a juror was unqualified. 

Defense counsel asked the jury panel if any of the panel members had “heard anyone discuss the case or someone say they thought they knew what the facts of the case might be?”  No one on the panel responded one way or the other.  The jury returned a guilty verdict but before sentence was assessed, one of the jurors volunteered that she had served on the grand jury that indicted appellant.  Motions for mistrial and new trial were promptly filed. 

At the hearing on the motion for new trial, the juror testified that all she could remember from the grand jury was appellant’s name and the charges that she voted to indict upon.  She could not remember any testimony or any documents which may have been presented to the grand jury. [That’s little surprise; it’s a rare bird indeed with our own grand juries that live testimony is, God forbid, actually presented or documentation, other than the obligatory offense reports, are ever provided to grand jurors.]  She also conveniently stated that she could not remember being asked at voir dire whether any of them had heard anything about the case or heard any of the facts discussed.  (What is left unmentioned is whether she indicated on her jury questionnaire that she had served on a grand jury.)  The trial court denied the motion for new trial.

Appellant argued that the juror’s failure to disclose the fundamental fact that she had served on the grand jury that indicted him denied him a fair and impartial jury trial.  He also argued that because the juror did not, or chose not to respond to the general question having to do with the venireperson’s knowledge of the case, he was entitled to rely on the truthfulness of that response and did not need to go further and continue asking even more specific questions in order to preserve his right to challenge the juror.  But the Court made short shrift of this argument. 

It is incumbent upon counsel to specifically ask questions which will determine whether they have a right to challenge the veniremembers.  The jury panel does not know the statutory challenges for cause and thus the prospective jurors likely do not know what the parties are trying to determine during voir dire.  It is counsel’s responsibility to ask quesions specific enough to elicit the answers they require.

Because the trial judge heard all the testimony at the hearing on the motion for new trial, because he chose to believe the juror’s protestations of forgetfulness concerning the otherwise specific questions put to the panel by defense counsel and because he believed that she was not biased against the appellant, then his decision to deny the motion for new trial was not an abuse of discretion.

Moral?  Defense counsel should be prepared to cover a whole range of issues dealing with juror bias, juror knowledge of the case, grand jury service, connections to fact witnesses or others employed in law enforcement, exposure to the case through hearsay or other sources, etc.  Defense counsel should also be prepared to advise the trial court that additional time will be needed to explore these areas since it is defense counsel’s responsibility and duty to exhaust all possible avenues of inquiry in order to mount a proper challenge to any particular venireperson.  Just show the trial judge a copy of this opinion to prove your point. 

I’m picking up a thread I started in the earlier post about the death verdicts handed down in Baghdad yesterday against Saddam Hussein’s cousin, otherwise known as “Chemical Ali.” The underlying sentiment is that maybe, considering the enormity of the man’s crimes against Kurds, Shiites and other “undesireables” who suffered under Saddam’s iron fist, hanging the man by his neck is simply too good a punishment. So, it’s necessary that we step back and take a look at some of the key evidence that was used against Ali Hassan al-Majid (”Chemical Ali”) during the Anfal trial.

Although he was by now dead and gone, his hanging having been recorded for posterity by a guard who secretly recorded the grisly event on a cell phone, Saddam Hussein’s presence was felt on January 8, 2007 as tape recordings were played in the courtroom where al-Majid was on trial in the Anfal matter. In audio recordings made years ago and played in open court, Saddam Hussein could be heard justifying the use of chemical weapons against Iraqi Kurds in the late 80’s, predicting that the attacks would kill “thousands” and stating in no unmistakeable terms that it was he alone among Iraq’s leaders who had the authority to order the chemical attacks.

In the words of New York Times Middle Eastern correspondent John Burns, “[i]n the history of prosecutions against some of the last century’s grimmest men, there can rarely have been a moment that so starkly caught a despot’s unpitying nature.” (more…)

The courtroom where Saddam Hussein was tried and convicted of crimes against humanity previously served as the old Baath Party headquarters.  It was a place where Ali Hassan al-Majid, otherwise known as “Chemical Ali,” made his bones as a sadist and right-hand executioner for Hussein.  It was here, prior to the U.S. invasion, where he relished handing out summary sentences to Kurds, Shiites and other enemies of the Iraqi state.  He also oversaw the executions themselves, often with ghoulish pleasure as is evident from the official videos made of the killings.  He was as feared as Saddam under the old regime. 

Yesterday, “Chemical Ali” heard the judge read five death sentences against him in the same courtroom and in the same building where he had himself imposed so many verdicts of death.  He was convicted of overseeing a poison gas attack that killed thousands of Kurds in Iraq’s northern highlands almost 20 years ago.  Now weakened by diabetes, al-Majid leaned heavily on a cane as he stood to listen to the court read off all five death sentences, an ordeal which took up to 18 minutes.  Unlike Saddam, who shouted defiance and protests when sentenced to death, al-Majid offered no verbal protest when sentenced.  And if the pattern stays true, his appeal will be disposed of within a month with the hanging to be carried out shortly thereafter.  And hanging it shall be, even though Iraqi military officers are said to have the traditional right to execution by firing squad when sentenced to death.  (more…)

Hack doesn’t write much on sports here unless it involves putting some lucre on the nags, then I can’t stop talking about it.  But there’s a time and place for everything and today it seems appropriate that I write a little bit about baseball. 

This weekend, the NY Yankees play the SF Giants in interleague MLB.  It marks the first time in 45 years that the Yanks find themselves in San Francisco.  The last time was in the 1962 World Series, one that I remember quite well.  It’s worth thinking back on.

By that time, the Yanks were truly the most dominant  franchise in the history of sports.  Their championship run was greater than the Boston Celtics tenure, more impressive than America’s domination of America’s Cup, superior to the ascendency of the Green Bay Packers as they began to lord over the old NFL.  By ‘62, they were on their way to their astounding 25th Fall Classic.  The 60’s were beginning to look a lot like the 50’s when NY played in 8 of the 10 World Series during that decade.  The National League seemed to be in transition, with no one team dominating.  You had Pittsburg in the 1960 Classic (Mazeroski beating Ralph Terry and the Yanks with that famous ninth inning homer in the deciding seventh game), Cincinatti in 1961 and now San Francisco for the ’62 series.  And this Giants team was much better than the Yanks anticipated.  The names of the Giant players roll off the tongue - Willie McCovey, Orlando Cepeda, Willie Mays, Matty and Felipe Alou, Ed Bailey.  These guys were good.  And they proved that with what usually wins World Series - stout pitching and key defense.  The “M&M Boys” - Roger Maris and Mickey Mantle - who had posted 178 home runs between the two of them over the past two seasons, were held in this series to batting marks of .174 and .120 respectively.  Once again, it was the pitching that sustained both teams.

Each team split the first six games.  NY took the first, SF the second, NY the third and so on.  The seventh and deciding game took place there in San Francisco at Candlestick Park.  (more…)

Going through some old papers today in various files, I came across a copy of the letter I wrote to the Presiding Judge of the Ninth Administrative Judicial Region back on November 16, 2006, literally begging him to take my name off of the capital appointment list.  I say that I literally begged him because I had, over the preceding thirty-six month period, sent him letters requesting that he do the same thing - take me off of the list.  It didn’t get done until I sent the November letter.  

And looking at what’s left, it should give any judge the willies.  Taking into account my departure and Jim Durham’s death, that leaves exactly eight - count ‘em - eight lawyers in the entire Panhandle available to defend capital cases.  There are only three listed lawyers here in Amarillo (Hale, Wilson and McElroy), four out of Lubbock (Metze, Murray, Stoffregan and Wardroup) and one out of Wichita Falls (Bruce Martin).  And what happens if one of our counties has another Merriman-like occurrence where up to four, five or six defendants are all implicated in a capital case?  Do you just draft lawyers into place, designating them “One-A” for convenience sakes?  Sure, you’ve got up to eight second-chair lawyers but, according to the strict requirements of the statute, they’re second-chair for a reason and I don’t see how suddenly “making” them “first-chair” strictly out of necessity somehow remains true to the statute’s requirements, not to mention the minimum standards set forth by the ABA. 

It’s like anything else these days.  One of the main complaints that foreigners have about this country is that everything, and they mean everything, is for sell here.  Maybe that’s right.  And maybe that’s the way we ought to address the shockingly thin ranks of capital litigators on hand.  The title of this posting is not meant to denigrate the abilities of those who are still willing to devote their time and efforts at this gruesome, unpleasant work.  Rather, the title was thought up to illustrate just how short-handed we are and if you think about it, there’s no reason for it to be that way.  Just start paying the lawyers what doing that kind of work is actually worth and I don’t think you’ll have any trouble qualifying a decent number of lawyers to comprise an available pool of lawyers.  I mean, Jim Durham was paid nearly $57,000 in the Runnels capital case (with $25,000 paid for exactly 500 hours of out-of-court time sans documentation) and that case consisted of only 8 days of jury selection and a 2 1/2 day trial.  That ought to be enough to bring ‘em out.