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Below Hack reproduces the entirety of  an e-mail sent to an Amarillo Globe reporter:

Pushing the limits of free speech . . .

I guess this might be a decent sample question for prospective bar applicants.  Take a right-wing radio talk show host known for his white supremacist sympathies and anti-Semitic rants, mix in his previous incitment to violence against New Jersey legislators on issues involving the Catholic Church and then consider his latest comments posted on his blog denouncing a recent opinion handed down by the Seventh Circuit Court of Appeals in Chicago (upholding local bans on handguns):

“Let me be the first to say this plainly: These judges deserve to be killed.  Their blood will replenish the tree of liberty.  A small price to pay to assure freedom for millions.  They [Justices William J. Bauer, Frank H. Easterbrook and Richard A. Posner] should be made an example of in order to send a message to the rest of the federal judiciary: Obey the Constitution or die.”

There is no evidence that anyone has even remotely taken action on this exhortation even though the blog included the language quoted above, the judges’ photographs, phone numbers, work addresses and courtroom numbers.  Expressions of fair opinion regarding admittedly public figures, especially Judge Posner who is a highly-regarded jurist and eminently readable author of several books and magazine articles, or something that goes beyond the pale of protected speech? 

Well, the FBI believes the latter because it issued an arrest warrant for Hal Turner, stating in an affidavit that his comments constitute a “threat to assault or murder a United States judge.”  He was arrested at his home in Bergen, New Jersey yesterday and is scheduled for arraignment in U.S. District Court today.  He’ll have his hands full now since he faces these federal charges, which carry draconian guidelines, along with state charges in Connecticut involving those allegations of incitement of violence against Jersey lawmakers. 

Well, I guess this is the kind of “hate speech” case which needs resolution.  The issue comes down to whether or not the language used on the website comes down to a “true threat.”  A case involving civil enforcement of similar political speech arose out of California when a federal appeals court there upheld a $109 million jury verdict against organizers of an anti-abortion Web site which distributed “wanted” posters for abortion providers, replete with photographs of dead doctors crossed out with “Xs.”  Give Turner time and the opportunity, I suppose he’ll go after the California Ninth Circuit justices who signed off on that opinion.  Think this will have any salutory effect on the biggest windbag bully of them all, O’Reilly?  We’ll see.

. . . and the detective failed to check out the suspect’s MP3 player

When NYC detective Christopher Perino was assigned to investigate a shooting in the elevator of a building in the Bronx, he came across a 17-year old suspect by the name of Erik Crespo.  Eventually, Crespo was arrested and brought into the station house.  At the time of his arrest, the youth had been listening to music on his MP3 player.  And he used the device to record the interview that Detective Perino conducted with him for over 1 1/2  hours without his parents or a lawyer present.  Obviously, Perino didn’t know that all of this was being picked up by the MP3 player. 

During Crespo’s trial, Perino was grilled on the specifics of the interrogation.  Incredibly, when confronted with the existence of the lengthy interview, Perino denied having asked a single question of the defendant.  His exact answer when asked if he had asked Perino any questions: “That’s right.  He wasn’t questioned.” 

Crespo’s lawyer must have salted away the recording for a rainless day because once the detective’s perjury was revealed, a deal was cut.  Crespo was sentenced to seven years in prison for a weapons violation but the attempted murder charge was dropped.  And as for Perino?  Confronted with the lies, he opted to try his case before the trial court.  Yesterday, he was convicted of three counts of perjury after the judge heard the conversation between the Perino and Crespo as captured by the MP3 player.  He faces up to seven years on each count.  Sentencing is set for August.  He was canned by the New York City Police Department the moment that the convictions were handed down.  Not a good day for Perino even though he was permitted to remain free on his personal recognizance bond. 

Perino’s lawyer had a classic response to his client’s mendacity: “I believe the police officer was just doing a good job to get a guy with a gun off the street.”  You get the feeling that Perino’s counsel is like so many in this media-obsessed culture of ours and that is, he just can’t resist the temptation to make an ass out of himself if there’s a microphone or camera jammed in front of his pie hole.

Joe Ellis Patterson had no idea the trouble he walked into, literally, as he trapsed down Fourth Avenue here in Amarillo last July 29.  You see, he was walking on that side of the street where his back was to oncoming traffic.  Astute APD Officer Mike Sanchez believed that this was in violation of an obscure city ordinance, chapter 16-3, art. VII, sec. 16-3-313(b) which provides that “where sidewalks are not provided any pedestrian walking along and upon a highway shall when possible walk only on the left side of the roadway or its shoulder facing approaching traffic.”  So, he stopped Patterson, conducted a pat-down and discovered that old green, leafy substance, in a drug-free zone no less.  Patterson argued in the trial court that the arresting officer lacked probable cause to initiate the stop because Fourth Avenue did not meet the definition of “highway” as defined for purposes of the ordinance.  Since the definition of “highway” in the context of the ordinance required the roadway be divided “by a clearly indicated dividing section between the two roadways” and there was no dispute that Southwest Fourth Avenue had no such dividing section, the trial court determined that the traffic law relied upon by the officer was inapplicable and thus, he had no legitimate probable cause to carry out the detention, pat-down and resulting discovery of marijuana. 

On appeal, the State argued that even if the local ordinance didn’t or couldn’t be made to apply, a peculiar state statute in the Transportation Code did.  Sections 552.006(a)-(b) make it illegal to walk atop a highway surface with one’s back to traffic when no sidewalk is available.  And not only that, ”highway” is defined differently, there being no requirement that there be an “intervening space, barrier or clearly indicated divider.  So, even if Patterson didn’t violate the city statute, he ran afoul of state regs.  The Amarillo Court of Appeals agreed and yesterday, reversed the trial court’s ruling suppressing the marijuana.

So, the lesson?  Even if the officer’s reasons for the stop are wrong or legally incorrect, the totality of the circumstances can nonetheless lead a police officer to reasonably suspect that some criminal activity is afoot and thus, justify the detention and discovery of contraband.  In other words, an objective valid stop can be upheld even though made for the wrong reason.  This kind of conclusion is made possible because the trial court need not limit its review to the sole violations relied upon by the arresting officer.  So, let this serve as fair warning: walking on the wrong side of the “highway” (city streets included) provides the Man with an objective basis for a stop and possible search and seizure of evidence.  State v. Patterson, No. 07-08-0485-CR, June 23, 2009. 

Clarence Darrow knew immediately, when he was indicted by a L.A. County Grand Jury for jury tampering and bribery, that he needed a good lawyer.  He got one in Earl Rogers who some say was every bit the lawyer that Darrow was, except for the former’s heavy drinking.  So be it for an East Texas lawyer who now finds himself a defendant as the result of his arrest on suspicion of drunk driving this past Tuesday morning.  Bryan Simmons of Atlanta was taken into custody after he lost control of his car on his way to a New Boston courthouse while defending a murder case. 

Yesterday, Simmons talked about his situation to the Associated Press, explaining that he experienced a sneezing fit brought on by allergies and get this - black pepper sprinkled on his catfish which he had just eaten while driving to court Tuesday morning.  His car left the roadway and careened into a ditch with a flat tire.  He emphatically denied being under the influence of alcohol or drugs.  He stated that he was simply exhausted from all those late hours he had endured, chained to the desk while preparing for the murder trial.  “I might have been too tired to be driving, but hindsight is 20-20.”  He also stated that he demanded a roadside Breathalyzer test but the officer chose not to administer one.  He also submitted to a blood test, the results which won’t be available until next week. 

The judge trying the murder case declared a mistrial halfway through jury selection on Tuesday and ordered Simmons to reimburse Bowie County for the jury costs.  Well, good luck to the judge on that one, especially if Simmons is absolved on the blood test.  And I really do hope that he is exonerated.  But doesn’t he have enough sense to keep his piehole shut for the time being until he knows for sure that he’s looking at a prosecution?  And shouldn’t he have enough sense to let his lawyer be the first to hear his unique defense of too little sleep and too much Cayenne pepper?  We’ll dub it the “cajun” defense, in honor of the Dan White’s ”Twinkie” defense.  And if you don’t know anything about that, I don’t have the time to go into it.  Better to Google it. 

A murder trial recently concluded in France which can only be described as one having inexplicable facts, followed up with an inexplicable sentence imposed on the defendant.  Veronique Courjault, 41, was ordered to serve eight years in prison for the murder of three of her children shortly after their births between the years 1999 to 2006.  The crimes came to light in July 2006 when Ms. Courjault’s husband discovered the remains of two infants in a freezer.  At the time, his wife was out of the country with their two sons on vacation.  DNA tests revealed that the infants were indeed the offspring of the Courjaults.  Incredibly, absolutely incredibly, Mr. Courjault denied any knowledge at any time that his wife had been pregnant ever during the relevant time frame.  Mr. Courtjault was never charged in the crimes.

So, if the husband is to believed and if it is accepted that the defendant successfully hid these pregnancies from her family, how to explain the sleight of hand?  An answer was provided by a team of psychiatrists - a mental illness which they called pregnancy denial.  The defendant, who confessed to the killings in October of last year, testified in court that she was conscious of the pregnancy but then “all of a sudden I wasn’t anymore.  It was lost . . . If there was a dissimulation, it was first inside of me.”  The psychiatric explanation provided the French population with a handy rationalization which explained the overnight transformation of Ms. Courjault from being a monster to that of a sympathetic victim of her own self.  But more importantly, the defendant came from an upper middle-class background with a stable family setting, two “normal” children and an educated husband.  

The idea of infantcide is associated in France, much like in the U.S., with uneducated parents from poor backgrounds or teen mothers.  A psychiatric explanation provided the public with the rationalization necessary to give Ms. Courjault a pass on an otherwise inexplicable crime, something that would have never occurred had the defendant been anything other than privileged and bourgeois.  You want to believe that this kind of thing could only happen in a rarified, gentried criminal justice system common to the European inquisitorial scheme.  But then again, considering the willingness of the public to buy into the diagnosis provided by paid psychiatrists and the “attractiveness” of the accused, helping people visualize the “there but for the grace of God go I” BS, I can see it being peddled here with success.  Especially out in California where, I swear, even if they did convict Phil Spector, anything is possible.

Yesterday, Judge Womack of the Court of Criminal Appeals filed a short two-page dissent in the case of Ramiro Gonzales v. State of Texas, No. AP-75,540.  Below is the full text of the opinion:

The Court holds (ante, at 13-15) that the trial court did not abuse its discretion in allowing the psychiatrist to offer an expert opinion on the probability that the defendant will commit future acts of dangerousness that will constitute a danger to society.

The fact that there was no evidence introduced (and there seems to be no evidence at all, anywhere) of the reliability of these predictions of future dangerousness should be dispositive.  “Now the ordinary rules of evidence require that evidence be reliable in order to be admissible.  Reliability in the context of scientific evidence requires scientific validity.  It is doubtful that testimony about future dangerousness could withstand Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)] analysis.” [citation omitted]  We apply that analysis to psychiatrists’ and psychologists’ predictions of future dangerousness. Russeau v. State, 171 S.W.3d 871, 883-84 (Tex.Crim.App. 2005).

It must always be remembered that the capital murderer who is not sentenced to death will be sentenced to prison for life without parole.  So the relevant question is whether he will commit violent acts in prison.

Our laws permit people with communicable diseases to be quarantined.  The laws based on scientific research that has shown that, without quarantining, the diseases will be spread.  Before we accept an opinion that a capital murderer will be dangerous even in prison, there should be some research to show that this behavior can be predicted reliably.

I respectfull dissent.

Filed June 17, 2009.  Do not publish.

I would say that this is a brief but important shot across the bow.  One down and eight to go for the proposition that the rules of evidence should be applied with equal vigor to State’s expert witnesses on future dangerousness, just as they are religiously applied to those defense experts whose opinions are elicited in rebuttal. 

Isadore E. Millstone was a gifted individual, truly gifted.  He found his niche in the construction business, founding Millstone Construction in 1927, the year that Lindberg flew solo across the Atlantic Ocean.  He company prospered, making him a millionaire many, many times over.  His firm built Busch Stadium in St. Louis, his hometown, not to mention many highways,  bridges and schools.  One of the early accomplishments of Millstone Construction was the completion of an early double-decker highway, U.S. 40. 

He was proud of his work but held no real sentimental attachment to what he erected, all the while knowing that nothing lasts forever and that some things just lose their purpose and must come down.  So, he didn’t weep when they tore down Busch Stadium in 2005; he understood perfectly.  He made it a point not to become attached to material things.  He lived simply in a single-story house.  He drove a Chevy Impala.

All through the years heading up Millstone Construction, Isadore earned a reputation as a man who was ahead of his time.  He supported civil rights at a time when it was not exactly the thing to win you business in a white-dominated business environment of 1940’s St. Louis.  He refused to sign contracts unless the unions admitted minorities.  He jump-started vocational schools for black men so they could learn skills and go on to work as bricklayers, electricians, plumbers and welders.  He was a well-known member of the board of trustees for Washington University.  He gave away millions of dollars to all kind of charitable causes and was quite vocal about his contempt for other wealthy individuals and their penurious ways for not giving enough away.  Just last month, he addressed an audience at the Jewish Community Center with a speech, delivered without notes, in which he talked about the depth and breadth of his gratitude for life and all those little things that make our existence temporally meaningful.  So you can share perplexity with those good souls in St. Louis to hear that less than two weeks later, he drove to the Daniel Boone Bridge which spans the Missouri River and leaped to his death.  He was not terminally ill.

Mr. Millstone had outlived everybody around him.  His wife of 68 years, Goldie, had died in 1998.  A second wife, Helen, then passed away in 2007.  His only two children, a daughter (44) and a son (68) predeceased him as well.  At 102, he had done everything.  Maybe he was just tired, tired of the struggle, tired of the despair of having seen his contemporaries and their children go on before him.  As a Jew, his faith does not hold with suicide but does it really matter, given the substance of this man and his accomplishments.  He was an accomplished swimmer, having maintained his passion into his 90s.  Perhaps he simply chose to close it all out with one last, grand dive and a swim. 

The DVD had been sitting in one of my drawers in the office for several months.  I thought it was about time that I took it out and fired it up.  And I’m glad I did.  The DVD, produced by the Texas Lawyers’ Assistance Program of the State Bar, tackles the thorny problem of depression and the practice of law.  Through interviews of four lawyers who talk openly and painfully about their ongoing battle with the disease and four mental health professionals, the issue is handled thoughtfully. 

Let’s just say that the legal profession experiences the highest rate of depression of any profession.  We also have the highest rate of controlled substance and alcohol abuse, even easily beating out the doctors.  The deadly trifecta is rounded out with established figures showing that we as a group have the highest rate of completed suicide.  A Texas study showed that we are twice as likely as the general population to carry through with the Dutch act; an ABA-sponsored study concluded that we were six times more likely to kill ourselves.  Make no mistake about it - our profession is unlike any other and probably lends itself to these grim facts and statistics.  Like one of the lawyers interviewed in the program notes, whereas the surgeon is surrounded in the operating room with fellow professionals who are all working in unison toward a common goal - to save the patient’s life and improve his or her overall physical health - the lawyer ”operates” in a similar life’s laboratory where there is an equally skilled, ambitious opponent who is actively working to kill your patient.  That doesn’t exactly lend itself to a positive work environment.  Nothing less than success and total victory will do. 

What’s refreshing about the DVD are frank discussions about how the practice of law can so easily lead to the onslaught of depression and why certain kinds of personalities, predisposed to depression, are drawn to the practice of law.  Most of those who practice day in and day out know what I’m talking about here.  We’ve all dealt with some forms of the condition from time to time and not just “the blues.”  But for some of us, things get so bleak and so bad that just getting out of bed in the morning becomes a task, in and of itself, insurmountable.  The production turned out to be a real surprise and it’s worth watching when you have the time and attention to focus on its content.  The DVD is free and can be ordered by calling the TLAP at 1-800-343-8527.  I recommend that every lawyer watch it, maybe even twice.      

Hack came across a short blurb in The Marshall News Messenger, a small-town newspaper that the Amarillo Globe News could learn a few things from.  Authorities there found the body of a woman in a mud pit just north of the tiny hamlet of Jonesville.  Through fingerprints, she was identified as Lashun Rena Jenkins of Marshall.  Investigators with the Harrison County Sheriff’s Department believe that she was killed somewhere else and then moved and dumped at the mud pit.  The police are continuing their investigation.  But what made this unfortunate story a little out of the unusual was the revelation that the decedent was the niece of Mabelline Jenkins who was found dead of a gunshot wound to her head in February of 2003 in her home there in Marshall.  She was also the late niece of Joann Jenkins who died from a shotgun blast to the chest in June of 2004 there in Marshall too.  Then came the eerie part: Mabelline’s killer was Derrick Demond Jenkins, age 25 at the time.  He pled guilty to that homicide as well as the murders of two young women at a Marshall convenience store the same year.  He is currently serving a life sentence so we can at least eliminate him as a suspect in the murder of yet one more Jenkins in Marshall.  What are the odds of all of this happening the way it did?   

Well, I gave you the winner but at 11-1 Summer Bird was a tad too short for me.  I had him in my business, putting him everywhich-a-way in multiple trifectas with Mine That Bird and Charitable Man keyed to win.  So, SB runs down MTB for the win, just like his daddy, Birdstone, hooked Smarty Jones a few years back.  The big surprise was Dunkirk who went off at 9/2.  He ran his eyeballs out, proving he has matured much more than I gave him credit for.  One disappointment had to be Charitable Man who never really got into the track and sort of ran around the oval.  Maybe he had his mind on the bucket of oats awaiting him back in the barn or he just didn’t feel like running on that particular day.  The biggest flop had to be Chocolate Candy who never lifted a hoof.  This synthetic-to-dirt switch is not proving to be kind to many of the California horses.  And I still believe that Summer Bird should have been paid more than 25.80 to win but as Blackie Sherrod has often said, better a “short” price than a long face.  There’s plenty of good racing this summer with the older horses and then, come late October, it’ll be Breeders Cup at Santa Anita.  Now that’s when things really get serious.