The Court of Criminal Appeals handed down no published opinions today. However, it remanded four applications for writ of habeas corpus to the trial court for further fact-finding. They caught my eye because each dealt with allegations of ineffective assistance of counsel and are worth looking at. (more…)
Hack is an associate member of the LCDLA and therefore, gets the perk of acquiring a password and username to view a ”Members Only” bulletin board with lots topics and some pretty juicy comments. I mean, they’re a whole new breed down in the tropics and many of the lawyers truly speak their mind. Anyway, the LCDLA website had some recent defense victories by members posted for all to read about and three of them caught hack’s eyes. All dealt with snakebitten misdemeanor DWI prosecutions which resulted in outright acquittals or the dismissal of the jury panel. Each is worth writing about here. (more…)
Back on October 12, hack wrote about Texas Supreme Court judge David Medina (see “A Texas Supreme Court judge, arson and some burning questions,” posted under Courthouse Gossip and Items of Interest). It seems that structures owned by Medina have a propensity of burning up and the local fire department tends to deem the blazes arson. Medina had so far managed to avoid criminal prosecution until this week when a Harris County grand jury indicted him and his wife, Francisca, for tampering with evidence in a case involving a fire that destroyed their home and two others. But the charges were dismissed by the trial court the very next day upon written motion filed by the Harris County D.A.’s Office. Prosecutors cited insufficient evidence to pursue the charges. That prompted an unusual public outcry from members of the grand jury which indicted the Medinas. Eight of the twelve grand jury members called a press conference at which they called the D.A.’s handling of the case “arrogant” and evidence of political favoritism on the part of embattled D.A. Chuck Rosenthal, himself under fire for having used the county e-mail system to send amorous notes to his personal secretary, herself his former lover. I know that Texas prosecutors can dismiss a case for any reason but really, citing insufficient evidence one day after indictment as the basis for dismissal? Couldn’t they have waited a week or two? I don’t know if Medina is up for reelection but if so, he’ll probably win by a landslide. What a world.
Dave Henry’s columns in the Amarillo Globe are usually mindless rants against some idea, some issue, some current development that his employer has already come out against. Naturally, this allows Henry to play it safe. His January 24th column (”The mind can play tricks on justice”) is no exception at all.
Henry has a problem with two things raised in Jimmie Lucero’s direct appeal and his Art. 11.071 death penalty writ. First, I suppose that the complaint about the jury foreman bringing a Bible into the jury deliberation room strikes him as an affront to the good Christian community in Amarillo since the verses at issue dealt not with Old Testament “eye for an eye” retribution but rather with the Romans admonition about submission to authority. Yet, if Henry would do a little reading and a smidgen of research, he would know that numerous cases have been reversed on the identical chapter and verse read by the jury foreman. Secondly, Henry should know that this scripture reading issue remains pending before the Court of Criminal Appeals. Lastly, no one’s trying to “get Jimmie off” by raising this issue. It’s a simple matter of whether Lucero received a fundamentally fair trial and if not, is he entitled to a new one. When the Supreme Court or the state legislature rules Bibles as indispensible to verdict rendition as applicable law, then I’ll quit carping about the jury foreman conducting jury deliberations as if it were a Sunday school. (more…)
At the time of her death, seven-year old Nixzmary Brown weighed only 36 pounds, the same as a healthy child half her age. Her body bore the markings of a savage beating and indicia of starvation. Her biological mother and stepfather were indicted for murder in her death. The stepfather, Cesar Rodriguez, went on trial yesterday in Brooklyn and this is what his lawyer, Jeffrey T. Schwartz, had to say to the jury of ten women (most of them mothers) and two men.
Schwartz told the jury in his opening statement that little Nixzmary was a “force of destruction” who terrorized her five younger siblings. She refused to be “disciplined,” meaning that she would often slip through the ropes that kept her bound to a chair in her room. She balked at using a litter box which she was forced, by Rodriguez, to use as a toilet. Shwartz called her a “little Houdini.” Schwartz then went on to explain why Rodriguez “disciplined” (read: beat)the child on the last night of her young life. The reason? Nixzmary helped herself to a “forbidden” container of yogurt. Rodriguez beat the child with his fists and a belt, jerked her head under a faucet of streaming cold water and then left her shivering and naked on the uncarpeted floor of her bedroom. She later died at a local hospital from severe, blunt-force trauma. I am not making any of this up. (more…)
In February of 2006, hack wrote a guest editorial condemning the lurid practice of killing horses and selling the meat to Europeans who think horse on a platter is sophisticated cuisine. At the time of the editorial’s publication, there was pending in Congress a far-reaching bill intended to shut down this grisly business by banning the practice altogether. Although the bill was furiously opposed by the Bush Administration and Amarillo’s own American Quarter Horse Association (to its undying infamy), it eventually passed. Unfortunately, those folks involved in the business simply round up the horses they buy from the “kill pen” and ship them north to Canada or south to Mexico. There, they are exposed to monstrous methods of death, descriptions which hack will not write about here because they are simply too graphic, too cruel. So, the worst nightmare has evolved where unintended consequences of the killing ban eclipse the pure motives and aims of the original legislation. Animal rights groups are now pushing for federal legislation that would forbid the sale and transport of horses for human consumption. This would, in effect, negate the export market for horse meat once and for all. Bills await action in both houses of Congress. I say to you: contact your representative or senator and urge quick passage of these bills immediately. There’s no middle ground on this issue and may the AQHA hang its collective head in shame.
The House Committee on Oversight and Government Reform, the single most powerful investigative panel in Congress, announced plans to take sworn depositions from Roger Clemens, his accuser and former trainer Brian McNamee, admitted steroids distributor Kirk Radomski and Andy Pettitte and Chuck Knoblauch (former Yankee teammates of Clemens). Apparently, this development is underway in direct response to Clemens’ numerous denials issued to the public via videotaped statements, press releases, television interviews and press conferences. Clemens can thank his lawyer, Rusty Hardin, for the increased scrutiny.
The Committee also plans to request and if necessary, subpoena, a tape of an four-hour interview of McNamee conducted by a private investigator working for Clemens’ lawyer. This particular interview was made one day prior to the release of George Mitchell’s report on baseball’s steroids controversy. That report cited about 90 current and former players by name who used steroids while playing professional baseball. Clemens - that is, Clemens through Rusty Hardin - so far is the only player who has loudly challenged the accuracy of the report. The Committee decided to respond because the Mitchell Report was prepared essentially at the request of baseball commissioner Bud Selig. The plan to depose these individuals sets into play an aggressive investigation by Congress as opposed to the media-friendly public hearing that had been planned for January 16. The depositions are described as “compulsory interviews under oath.” Let’s hope that Clemens is better prepared than Pete Rose during his infamous deposition at the hands of John Dowd back in 1989. He probably will be but he’s in the same boat that Rose found himself. All he can do is deny, deny, deny. How come no one else named in the report has done the same? Clemens says he doesn’t care about records or the Hall of Fame. Do you believe him when he says that?
Back on December 18, hack wrote about Sylvia Harris, a black female jockey who won her first professional race at Hawthorne Race Course aboard Wildwood Pegasus on December 1. (”More girl power,” posted under Items of Interest). She is among the very few black jockeys laboring at various tracks throughout the country and her victory came at the age of 40, an age one doesn’t expect of an apprentice jockey. But there’s so much more to this story of Sylvia Harris. Let’s just begin by saying that for Ms. Harris, she’s in a good place because she’s doing something that she really loves and that is riding horses. But it wasn’t quite as placid nor fulfilling early on. (more…)
Opponents of the death penalty who thought their cause would gain some additional traction through the latest challenge to the lethal injection protocol under attack in Baze v. Rees, No. 07-5439 were quickly disabused of that notion given the skeptical response from both conservative and liberal justices on the issue. During oral argument on Monday, Donald B. Verrilli Jr., lead counsel for two inmates on Kentucky death row who are facing imminent execution with the use of the three-part drug cocktail, was peppered with questions from all sides.
Verrilli was forced to concede early on that theoretically his clients would have no case if the first drug, a barbituate used for anesthesia, could be guaranteed to work perfectly by inducing deep sleep. But Verrilli also countered that the use of a powerful barbituate would serve as a viable alternative to the questionable three-chemical protocol, given its propensity to act quickly and effectively. Secondly, administration of the barbituate would not necessarily require the assistance of medical personnel, always problematic in the course of the administration of the death penalty since physicians’ ethical code prohibits them from participating in executions. However, Verrilli met even more resistance on this point from Chief Justice John Roberts who asked what the court should do if he were to prevail at the Supreme Court and convince the court to order new protocol involving the administration of a single drug, like barbituate, and the next case is brought by someone complaining that the single-drug protocol is suspect because it has never been tried. Further, the Chief Justice mused, what if the inmate objected to the method of using a powerful barbituate because it would render his death “undignified,” meaning that expiration would be accompanied by tics, starts, muscle spasms and twitching as the drug worked its way to the bitter end of death. The same objections leveled at the current three-part drug protocol would then be used to dismantle exactly what the anti-death penalty crowd was supporting at present. So went the questioning for the next twenty minutes.
Surprisingly, Justice Stephen Breyer posed what is probably the most damaging question of all. Justice Breyer wanted to know exactly what proof existed within the scientific literature supporting the claim that the single-drug protocol was more effective than the current one being employed in 36 states. Breyer then pointed out that the scientific articles cited in the briefs filed by inmates were incomplete and confusing. “So, I’m left at sea,” Justice Breyer commented. “I understand your contention. You claim that this is somehow more painful than some other method. But which? And what’s the evidence for that? What do I read to find it?” All very good questions since there is a paucity of evidence to date to show that there is widespread mismanagement of the current three-chemical protocol insofar as evidence of any botched executions.
Prediction? The Supreme Court will issue a ruling on the case fairly quickly so as to dismantle this de facto moratorium on capital punishment. The Court will hold the Kentucky protocol adequate and operating within applicable safeguards but will put off ruling on an Eighth Amendment challenge to another day. And then, let the executions resume.
History is the methodology of how we go about preserving stories. Some ways are better than others and, at the same time, insure a greater degree of accuracy. Books get written, songs are composed, maybe a movie gets produced. But for the great unwashed, to which you, the reader, and I belong, we exchange narratives and anecdotes as the way to hold on to the past and to those people who are and were dear to us. And so it is whenever a good lawyer dies.
The good lawyer is many things to many people, a collection of great stories, be they courtroom memories or recollections of good times. And that’s really all we have of each other as lawyers; that and the files we maintain on our cases, each of which should also tell a good story. This brings me to an poignant idea which I heard discussed a few days ago. Its elegance is striking in the wake of Vance Ivy’s untimely death last week. As I understand, down in Lubbock, whenever a member of the bar passes on, lawyers who knew the deceased will meet, usually in a selected courtroom, and share with each other their fondest memories of the lawyer. These shared stories may center around a particular trial or a moment outside the courtroom. There are no limitations on the content of these shared memories. As many lawyers may attend and participate as can fit in the courtroom. All the while, a court reporter duly records the flowing narrative. It is then transcribed and presented to the dead lawyer’s family as a testament to his or her friendships, his or her career and a legacy left behind.
This is a great concept. You know, the Amarillo bar has taken some real lumps over the years, what with all the lawyers who have gotten into trouble or otherwise not really led an exemplary life. But this is an idea with legs. And it honors those lawyers who led a sharing, rich and authentic life among us, the living. And don’t ever forget - we’re not that far behind. In the words of Southern writer Harry Crews, oh sure, we all know we’re going to die some day but nobody really believes in that, not really. Well, I do pal. Isn’t this worth some serious consideration?