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Let’s not allow August to slip by without remembering the birth of an idea fifty years ago.  It’s just as worthy of recognition as Woodstock or Neil Armstrong’s walk on the moon. 

Lamar Hunt was rich and young and ambitious and, above all, a Texan.  He wanted a professional football team all his own.  But it was a matter of bad timing for Hunt.  Old, entrenched NFL owners were in no mood to talk to an upstart Texan about any of this, especially after the classic 1958 title game between the N.Y. Giants and Baltimore Colts.  It proved one thing: football was made for television.  Knowing this was the future, Lamar set about to do something even more audacious than what the NFL had already denied him.  If you can’t join the league, start your own.  So, on August 22, 1959, Hunt, Ralph Wilson, Bud Adams and other owners announced the creation of the A.F.L.

Of course, things are never as simple as they seem.  Make no mistake about it.  Hunt and the others were there to make some dough, something all were good at.  But aside from their pure mercantile interests, these guys were brilliant in their collective ability to foresee so many of trends and developments coming in the next two decades.  For example, Hunt believed that the old NFL was too East-Coast oriented.  That was true.  Aside from the two California teams, what else was there west of St. Louis and Chicago?  They brought the sport to the center of the land, a place where people hungered for good football. (more…)

RecessionWire is in the midst of compiling what it calls a Recession lexicon to track new words and neologisms inspired by our semi-hardscrabble downturn.  Here’s a few with some thrown in from NYTimes netheads.

Slasher - A person with more than one profession, such as a banker-slash-entrepreneur, an accountant-slash-yoga instructor.

Pre-Fired - Being dismissed from a new position before you even start.  Usually because the company folds between the offer and your start date.

Canniversary - A year from the date when you got canned from your job.

Outshipped - When your company lets you keep your job but ships you to a developing country. (more…)

James Marsters lost his hearing when he was just a toddler from the effects of scarlet fever and measles.  As a child, he learned to read lips.  He also developed speech through proper therapy.  He was smart, dedicated and driven.  He excelled in his studies, earning a B.A. in chemistry at Union College and later, obtained a dental degree in 1952 from New York College of Dentistry.  He earned that degree without any special accommodations whatsoever.  He later earned a master’s degree in orthodontics at USC and opened his practice in Pasadena two years later. 

Marsters never let his deafness impede his ability to derive joy from life, either professionally or personally.  He was a success in his chosen profession.  He could communicate well face to face with others.  He married and raised a family.  But there was one thing he simply could not do - talk on the telephone. (more…)

Wanna get a gander at an alien from another dimension who lives among us?  Seriously, take a look at some the vile, rotten, contemptible nonsense which passes for discourse on the subject of health care reform and then watch how Rep. Barney Frank handles it.  Enjoy.  No, “enjoy” is in inapt term.  I should say behold and be repelled.

As Warner Wolf used to say, “OK, let’s go to the videotape” and scan the more significant amendments to criminal law and procedure, courtesy of the 2009 Texas Legislature.

Punishment alternatives

SB 2340 amends art. 42.035 C.C.P. to allow a court to order a defendant serve part or all of his sentence in county jail by participation in an electronic monitoring program.

Guilty plea admonishments

SB 1236 amends Art. 14.06 C.C.P. to require that class C misdemeanors  contain written language explaining possible loss of right to possess firearms if convicted.  The solution is to place these federally-mandated admonishments on the face of the citation.

Bonds

HB 1506 amends art. 17.292 C.C.P. by authorizing a magistrate to place a defendant charged with an offense involving family violence under GPS as a condition of an emergency protection order.

Intoxication offenses

SB 328 expands police power in securing mandatory warrantless blood tests and in the process amends Sec. 724.017, Transporation Code as it relates to blood draws.  A mandatory warrantless blood draw is allowed if the person is arrested for an offense under Chapter 49 of the Penal Code involving the operation of a motor vehicle or watercraft and the person refuses the officer’s request to submit to the taking of a specimen voluntarily and another person has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment or the person is under arrest for DWI with a child passenger under the age of 15 or the person has been previously convicted of DWI two or more times or the person has been previously been convicted of DWI with a child passenger under the age of 15, intoxication assault or intoxication manslaughter.

HB 2730 amends Sec. 524.039, Transporation Code by requiring a demonstration of good cause before State Office of Administrative Hearings will issue a subpoena for the breath test operator as well as permitting the DPS to reschedule a hearing if the breath test operator is not available. (more…)

Remember when one of the hot topics about the Keller hearing was that the judge was wanting the Commission to appoint the Dallas firm Jackson Walker LLP as her counsel and reimburse the law firm for the attorney’s fees she would incur during the process?  I heard quite a few criminal defense lawyers as well as several layman chuckling over that one.  Her nerve!  Her chutzpah!  Got ‘em the size of church bells, right?  The letter that the Commission sent Judge Keller informing her of its refusal to appoint or reimburse was signed by a lawyer with the Austin blue-blood law firm Graves Dougherty Hearon & Moody.  That lawyer, John J. McKetta, also informed Chip Babcock, Keller’s lawyer, of his firm’s agreement with the Commission where Graves Dougherty had been hired to prosecute the action against Keller for the princely sum of - er, $1.00.  That’s right.  This firm of 68 lawyers agreed to take on the case at no small expense for all of $1.00, just like when Perry Mason used to take the George from some hapless schmuck, usually facing a contrived murder charge.  McKetta went on to inform Babcock that this farce is “the standard practice that the Commission has used to hire law firms for these type of proceedings.”  Why didn’t the media report this when it made so much out of Keller’s request?  And I am to believe that the well-connected law firm of Graves Dougherty Hearon & Moody took the case for the whole buck because of its commitment to good government?  Pull the string on the other bell and tell me if it goes off. 

The State Commission on Judicial Conduct concluded its hearing into the Judge Keller complaint on Thursday.  It’s time for an assessment of what the Special Master received into evidence.  We’ll call these Findings and Conclusions even though they won’t be written as such but they’ll serve similar purposes.  Yes, I have some opinions about the whole affair so let’s get to them.

Four thoughts come to mind in an overall analysis of what happened back on September 25, 2007.  First, none of this would have occurred had the Court of Criminal Appeals had in place a written set of execution protocol and procedure, detailing the mechanics of last-minute filings on behalf of a death row inmate whose execution is imminent.  Second, the weight of cumulative testimony, I believe, effectively quashes the notion that the attorneys’ failure to tender any kind of pleadings to the clerk or any members of the court was due to “computer problems.”  Third, if there be real, identifiable fault, it lies - unfortunately - at the feet of Mr. Richards’ writ lawyers, not Judge Keller nor anyone else with the Court.  Lastly, it was Judge Keller’s general air of indifference, operating as a contributing force, which landed her before the Commission on this unprecedented complaint.  Being indifferent to the process or, at times, to the defense bar, is not violation of a known judicial canon.  But it is regrettable that this trait seems to overshadow the judge’s opinions and public statements.  I daresay it will dog her from now on.  She won’t be remembered for her years on the bench or her leadership while having served as Presiding Judge of the Court of Criminal Appeals.  No, she’ll be known as the judge who refused to keep the Court’s door open to defense lawyers on the night that Michael Richard, whose conviction and death sentence had been reviewed and upheld on multiple occasions by various appellate courts, was finally put down.  That’s the way our world works; that’s the way the media works.  You see, Texas is a kill-crazy state where all we do in the legal community is sit around and think up ways to kill people.  People outside this state think we - everybody involved be it prosecutors, judges, incompetent defense lawyers - like doing it.  And any suggestion or notion, regardless whether supported by a shred of fact or not, that reinforces this belief; well, that’s ok and worthy of reporting. (more…)

The Supreme Court on Monday, in a highly unusual move, issued a one paragraph order directed to a federal district court in Georgia to conduct an evidentiary hearing in the death penalty case of Troy Davis who has been on the row for the 1989 murder of an off-duty police officer.  Mr. Davis’ case has attracted quite a bit of attention over the past few years, primarily because over 25 former prosecutors and judges have joined together in an amicus brief urging that the conviction be overturned.  Seven of the original trial witnesses who testified against Davis and fingered him as the shooter have now fully recanted their trial testimony.  Several other witnesses implicate the state’s primary prosecution witness as the actual triggerman in the killing.  The Supreme Court order directs the lower court to conduct a hearing and make findings relevant to Davis’ claims of actual innocence.

The terse order set up a fierce debate between two justices on the court whose views on the death penalty and its surrounding baggage couldn’t be more diametrically opposed.  While Justice Stevens wrote in a concurrence that the “substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing,” Justice Scalia countered that the Anti-Terrorism and Effective Death Penalty Act of 1997 (”AEDPA”) prohibited the issuance of the order.  Scalia went on to note in acerbic tones that the evidentiary hearing ordered by the high court was a “fool’s errand” since Davis’s claims were “a sure loser.”  Scalia then went on to crystallize the one issue that looms over this extraordinary order: he noted that the Supreme Court has never held that the Constitution explicitly forbade the execution of a convicted defendant who had received a full and fair trial but is later able to establish to the habeas court that he is factually innocent.  And that is exactly what the Court now needs to deal with, regardless of the intent or practical application of the AEDPA.

Davis’ lawyers secured the order of remand by filing a post-conviction writ directly with the Supreme Court rather than appealing the decision of the lower circuit appeals court.  This hasn’t happened in over 50 years.  That court, the 11th Circuit, in a 2-1 decision, refused to entertain Davis’s claims of innocence by noting it “cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder” in light of the available newly-discovered evidence.  And whereas Scalia argued that the AEDPA prohibited the Supreme Court from entertaining any appeal or even a direct filing such as this, Stevens countered that the AEDPA did not even apply to the Supreme Court or to inmates who establish their innocence. 

Perhaps the Supreme Court will take the opportunity to review the more draconian aspects of the AEDPA once it receives the case after the district court conducts the required evidentiary hearing.  The sole dissenting judge at the 11th Circuit, Judge Rosemary Barkett, carped that the AEDPA is now nothing more than a “thicket of procedural brambles.”  I can think of a lot more florid language to use when describing the way this particular law works but, for now, I’ll subscribe to Judge Barkett’s description.   

Ethan Nadelmann has headed the Drug Policy Alliance for the past twenty years.  As its executive director, he advocates for the legalization of marijuana and in so doing, he points out that there has been more progress toward this ultimate goal in the past four months than in all the previous years.  Nadelmann, a lawyer who also holds a doctorate from Harvard, has become a bit of a rock star in his own right.  He recently won over George Soros, the billionaire investor, to back the Drug Policy Alliance’s network of seven offices, 45 full-time staff members spread out over seven states. 

Nadelmann will tell you that, as he sees it, we have experienced four stages in this tortuous trek toward legalization with a fifth, and final, yet to be accomplished.  They are as follows:

Stage 1.  Bill Clinton: “I smoked but I did not inhale.”

Stage 2.  Al Gore: “I smoked, it was wrong, I regret it, shame on me.”

Stage 3.  Michael Bloomberg (N.Y.C. mayor, asked if he’d tried pot): “You bet I did and I enjoyed it.”

Stage 4.  Barack Obama: “I inhaled frequently - that was the point!”

Stage 5: Public Figure yet to come: “Yes, I smoke the occasional joint.”

Nadelmann is explicit about the whole thing when he says that we need to drop the “d” from “smoked” and move from past to present.  I wonder who the public figure, yet to be named, will be to step forward and break the mold?  It’ll have to be a Democrat or some effete, tree-hugging Northeastern Republican to do the dirty work.  But one thing is certain - we have a president who toked on occasion and no big deal.  I wonder if Sarah Palin ever twisted one and fired it up?  For my money, if she did, it wasn’t enough.

Residents in Long Branch, New Jersey reported seeing an “eccentric-looking old man” who was wandering around the neighborhood.  One homeowner called to complain about the subject walking into his yard.  Two police officers, both in their twenties, were dispatched to investigate.  What they found was indeed a rather disheveled man who carried no identification but who claimed to be none other than Bob Dylan.  He explained he was simply strolling around the area, looking at houses, before he took the stage that night with Willie Nelson and John Mellencamp.  Since he couldn’t prove who he was, officers accompanied him back to a hotel where concert workers confirmed his identity - yep, that was Robert Zimmerman, aka Bob Dylan.  One of the officers involved, Kristie Buble, told the media afterward that she had seen pictures of Bob Dylan from a long time back and the man she stopped and interrogated “didn’t look like Bob Dylan to me at all.  We see a lot of people on our beat, and I wasn’t sure if he came from one of our hospitals or something.  He was acting very suspicious.  Not delusional, just suspicious.”  Oh man, he must look like death warmed over.  And have you gotten a gander at Grace Slick lately?  I have to say that at the age of 70 (yes, 70 for God’s sake), she looks better than ever.  Those blue eyes will cut a swath right through you.