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I guess you could say that Chief Justice Roberts’ dissent last Monday, July 23, in an otherwise insipid Supreme Court decision settling a dispute between pay phone companies and long distance carriers is historic but at least he could have gotten the citation correct.  Justice Roberts used a song lyric where normally, a legal citation would go when he wrote that the respondents did not have standing.  I quote from that portion of his dissent: “The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing.”  In support, there it was - “When you got nothing, you got nothing to lose. Bob Dylan, ‘Like a Rolling Stone,’ on Highway 61 Revisited (Columbia Records 1965)”  No judge, you’re wrong, dead wrong.  What Dylan really said was “when you ain’t got nothing, you got nothing to lose.”  Almost certainly this erroneous cite to “Like a Rolling Stone” was the handiwork of some industrious law clerk who scoured the net and decided to take a leap and run it by his boss.  OK, give the Chief Justice his props for including the reference to Dylan in the case and for his selection of one hell of a song.  But it seems to me that Roberts and his clerk committed an all-too-familiar sin.  They relied on the Internet for the accuracy of the quote and not on the original source.  All they needed to do was bring out the vinyl and they would have known better.  So the moral?  In law as in life, always check the original source before citing for persuasive authority, even if it it embraces a tawdry double negative.  Surely Dylan must be a little perturbed about the use of his lyrics to drive home a mercantile point of law between two fueding corporate interests.  His song had more to do with the utter freedom bestowed on the unfortunate soul who really has nothing at all.  That’s a far cry from what transpires between two fueding communications giants.

Well, let’s see.  Take a career prosecutor, you know, someone who is pretty used to getting his way on just about everything.  He always gets evidentiary rulings to go his way since the rules themselves were promulgated to that end.  He spends most of his time pounding on indigent defendants represented by appointed lawyers who are working with inadequate resources.  He runs roughshod over the opposition, shoveling out plea offers and brooking no negotiation.  After 22 years of this, a certain mindset settles in and we on the defense side know what that is: a certain aloofness and distance in which the career prosecutor simply cannot fathom the difficulties experienced by those defending in today’s political climate.  And then something happens.  (more…)

This is the 150th anniversary of the publication of probably the most profound book ever published, Darwin’s The Origin of the Species.  It arrives at a time when polls show that a majority of Americans believe God created man in his present form and that the number of people who accept the evolutionary model of human origins is declining.  So, the city of Philadelphia has decided to take a shot over the bow of the creationists’ ship.  It is sponsoring a series of exhibitions, seiminars and lectures to celebrate both the publication of the book and the 200th anniversary of Darwin’s birthday.  One of the events during this period will be a talk by Judge John E. Jones III, the Bush appointee federal judge who ruled in 2005 that teaching intelligent design - a religious belief that some aspects of nature are so complex that they must necessarily be the work of a higher power rather than that of natural selection - in public schools was clearly unconstitutional. 

The intent of the programs is to increase public awareness and understanding of evolution, higher learning and science in general.  It is also intended to encourage people to use their brains and consider the evolutionary alternative to the biblical account of the creation of man, as is represented by the relatively new Creation Museum which opened in Petersburg, Kentucky last May. (see “Resigning evolution to the dustbin of history,” May 27, 2007, posted under Items of Interest)

Of course, “good” Christians will have none of that.  Ken Ham, president of the Creation Museum and a leader of a group called Answers in Genesis, a non-profit organization which touts the literal interpretation of the biblical creation story, defines the clash of ideas (he calls his literalist interpretation an “idea”) as “two fundamentally different worldviews.”  He completely rejects the idea that a thinking Christian could ever believe or accept the scientific principles of evolution.  “If you take Genesis as literal history, then of course the two are exclusive.  Christians who believe in evolution are being inconsistent.”  Does he speak for you reader, as well?

I wonder if Mr. Ham has ever considered what it really must have been like on the Ark at the time of the Great Flood if Moses really loaded up two of each kind of living animal onto the boat.  And just how many species of insects would that have been?  I know what one hungry chigger can do to spoil a perfectly good picnic.  I shudder to think what life was like on the Ark for forty days and forty endless nights.

Why pick a fight with guys like Ham and his ilk?  It’s exactly what they want. Let’s hope that the sponsors of the Year of Evolution work to promote Darwin’s seminal work and engage some minds in intellectual discourse along the way.

If you do any post-conviction work, sooner or later you’ll delve into scrutinizing the performance of a trial lawyer.  That’s because the kind of claims which can be raised on a writ are extremely limited due to the concept of procedural default and case law which does not permit relitigation of claims already raised and decided on direct appeal.  But claims of ineffective assistance of counsel are those kind of issues that the Great Writ was designed to address.  Rightly so. 

On collateral review, the lawyer can go outside the record and buttress claims with the use of external materials.  Moreover, should the claims of IAC be compelling enough that mere affidavits from the parties involved are insufficient to resolve conflicts, an evidentiary hearing may be in order, providing counsel with the opportunity to cross-examine the targeted lawyer and plumb the depths of the strategic mind in order to determine plausibility of trial tactics.  But for the most part, none of that is available to the lawyer handling a direct appeal, believing that he or she may have an IAC claim.  And why?  Because, in 99% of those cases, there was no hearing on a motion for new trial where you might have some testimony surrounding the reasons behind the actions (or omissions) of the trial lawyer.  And without this kind of record, the appellate court will simply refuse to speculate about the motives behind the lawyer’s performance.  This makes sense and is good law.  

A lawyer must be allowed to exercise independent judgment at all times and tremendous leeway given his or her decisions, usually made under fire and in the heat of the moment.  So why raise the dreaded IAC claim on direct?  I have a simple rule of thumb when considering this thorny issue.  I say that it has to pass the “Jesus Christ!” test, meaning I look at the specific complaint and if I think, “Jesus Christ, he (or she) did that!?,” then maybe I’m on to something.  Of course, it’s much more complicated than that but you get the drift.  The act or omission must be of such character and gravity that no reasonable lawyer under the same circumstances would have done the same.  Plus, there must be no plausible strategy underlying the tactic.  That’s a hard test to meet and especially so when you don’t have a record to refer to when discussing plausibility.  So, again, why raise IAC on direct when they’re already doomed to failure? 

Believe me, the appellate courts hate these kind of claims and Chief Justice Quinn on our own Seventh Court of Appeals has made no bones about it, sometimes openly criticizing the apparent promiscuous use of raising IAC claims on direct.  I think for the most part, his complaints are justified although I personally, from time to time, have determined, after much soul searching and deliberation, that certain IAC claims had to be raised on direct.  And I have the track record to show that my decisions were well-founded and not made in haste or without due regard for the reputation of the targeted lawyer.  But lately, I’ve noticed something going on with one particular lawyer whose name keeps popping up on the advance sheets out of the Amarillo Court of Appeals. (more…)

A new study from the University of Arkansas is out which used a body mass index and a measure of height and weight to assess “fitness.”  Researchers then applied this construct to the physical characteristics of approximately 5,000 Arkansas inmates.  What the researchers came up with is the suggestion that most of these 5,000 offenders were athletically fit when they entered prison.  The study applied the term mesomorph to those.  Of course, there were endomorphs and ectomorphs - fat ones and skinny ones - to count as well.  But the study concluded that these fatties and skinnies were less likely to have been imprisoned for violent crimes. 

Behavioralists have long explored the notion that physical traits play a role in criminality.  But most such researchers have been scared off since some claims might be labeled racist.  But this new study simply relies on body mass and body builds and comes up with an unusually large percentage of the prison population which meets the mesomorph standard - from 62 to 73 percent.  This does not mean that being fit is a predictor of criminal proclivities.  Rather, the suggestion might be that those who are fit possess personalities that are more likely to make them violent and to manifest that violence in inappropriate contexts.  What drives them to be fit drives them to be violent and likewise causes them to find themselves in more violent situations.  Interesting, very interesting.  I think these guys may be onto something.

I have visited on the subject of “yellow pad” lawyers before.  You know the kind.  They toiled in the vineyards years ago, well before so many of the fundamental changes took place.  Mention to them harmless error or the abolition of the “carving doctrine” or the circumstantial evidence standard of review, just to name a few monumental changes, and they get this blank look on their faces.  They can’t believe that the constitution has taken so many hits.  Of course, these concepts have nothing to do with constitutional law, just as the issue of punishment has little, if anything, to do with the constitution.  Lots of these guys, and I don’t necessarily limit this to the yellow-padders, don’t understand that the Constitution doesn’t even address punishment except to prohibit cruel and unusual punishments.  The same goes for direct appeal.  But to the point. 

Whenever I discuss with these older lawyers the Byzantine maze of procedural hurdles that trial and appellate counsel must now navigate in order to preserve the error for appellate review, the response if always the same: but what ever happened to ”fundamental error?”  Well, it’s on life-support but still  kicking.  Confirmation of this is shown in the case of Burton v. State, slip op. no. 13-05-519-CR, Corpus Christi Court of Appeals, May 29, 2008.  (more…)

Around 10:00 p.m. on April 13th of last year, Robert A. Williams, a 37-year-old homeless man, forced his way into the apartment of a 24-year-old woman in Manhatten, New York.  During the ensuing 18-hour ordeal, he raped her, forced her to swallow various pills and then chase them with beer, tried to seal her mouth shut with glue and then bound her wrists and legs, leaving her to die in a fire he ignited beneath the futon she was tied to.  She survived his brutality.  For the first time since then, she faced her attacker in open court earlier this week in a Superior District Courtoom in Manhatten.  Her initial appearance on the witness stand was the day before but Williams had refused to leave his holding cell.  This ncessitated her coming back to give testimony and undergo cross-examination.  Never has the Sixth Amendment right to confrontation ever been so scrupulously honored.

During the span of the multiple attacks and degredations, the woman chose opportune times to try to strike up conversations with Williams.  According to her testimony, she listened to every word or utterance made by Williams so to extract meaning or common ground which might lend aid to an exit strategy.  At one point, Williams asked the woman to turn on her iPod which played a Bob Dylan song.  She asked him if he liked Dylan to which he replied that he did not know who he was.  When asked by the prosecutor why she would engage in such small talk, she replied, “I wanted to have some kind of human connection so he wouldn’t kill me.” (more…)

Is it just me or does it seem that this spring and beginning of summer is the windiest within recent memory?  Over the past couple of weeks, you look up in the sky and what do you get?  Red sky in the morning, just like Lubbock which is a distinction I’m not too crazy about.  Now I’ve heard tell that Lubbock and Oklahoma City are the two windiest places in the United States and moreover, there’s this lonely mountain somewhere in Tibet that has recorded the highest sustained winds of all.  But what holds the record for the highest directly measured wind speed of all time?  Answer: Mount Washington, New Hampshire with wind speed clocked at 231 miles per hour.  As Dave Gardner, the old Southern comedian from fifty years back used to say, that would outrun a Chevrolet. 

For my thoughts on an ugly Belmont Stakes race, you know where to go.  Trainer Dick Dutrow is known as a guy who empties his pockets on his horses.  Has anyone asked him how much he pushed through the window on Big Brown last Saturday?  Just wondering.  And for those who have the morbid curiosity to watch the race (again), here’s the video.

Now let’s set the table with the following.  To begin, evolution as a principle is not in dispute within the scientific mainstream.  See, to scientists and yes, even among lawyers, doctors and those in other disciplines, the term “theory” does not mean a guess, a stab in the dark or a blind estimation.  A “theory” in this scientifically-classic context means that it is an explanation backed by abundant research, painstakingly amassed over many, many years.  A “gap” in the body of knowledge does not carry with it suspicion or a conviction that its existence disproves the theory; quite the contrary, a “gap” serves as the basis for the need for further research and acquisition of knowledge. 

There is absolutely no serious debate among the whole of the scientific mainstream community that existing research has strengthened and corroborated the basic tenets of evolution as postulated by Darwin over 150 years ago.  Just think what Darwin could have done with the advances in molecular genetics which have allowed modern biologists to read our past history recorded in the DNA of animals and plants.  Can there be any doubt among knowledgeable, curious and educated minds that this is not so?  Regrettably, yes.  It is unfortunate that my state of Texas has many misguided if not mischievous folks who have set out to derail the evolutionary train in order to advance religious dogma and they’re using the valuable resources of state government to carry it out.

In many states, the rabid anti-evolution lobby, headed by the Discovery Institute out of Seattle, Washington, works very hard to influence the legislatures to pass what is now known as the “strength and weakness” academic bill.  This is an act of the legislature which mandates that teachers instruct students to be open “to views about the scientific strengths and weaknesses of Darwinian theory.”  Of course, this is nothing but one more attempt by the antievolution crowd to insert its policies and philosophies into the scientific cirriculum of public schools, seeing as how they have been stopped cold over the past forty years from inculcating students with the drivel that is peddled as science through such sham constructs as creationism and intelligent design.  The difference here is that these fanatics have actually been able to influence enough frightened legislators to file such bills in Alabama, Florida, Louisiana, Michigan, Missouri and South Carolina.  But in Texas, it’s a different matter. (more…)