October 2007

There’s been some poorly reasoned counter-arguments bandied about the blogosphere regarding the push to have Sharon ‘Killer’ Keller sanctioned, impeached and/or disbarred for her refusal to keep the Texas Court of Criminal Appeals open an extra 20 minutes so that a request to stay an execution could be filed.

The argument boils down to this: the lawyers shouldn’t have waited until 5 o’clock to file their appeal – period, end of story. I responded before, in part, to this by writing:

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

Houston criminal defense lawyer Mark Bennett has written extensively on this subject as well:

Death penalty enthusiasts are chortling about Judge Sharon Keller’s action in closing the courthouse doors to Mr. Richard. A common theme among their responses is "blame the lawyers." One [anonymous] sample, in comments to my first post on the subject:

Why didn’t the lawyers who needed to file do so BEFORE the court closed????? That is the most ridiculous thing I have ever heard. She closed on time, so you’re filing a lawsuit against her?

HELLO???? Is anyone out there?????

Apparently not. Get real. You’re supposedly fighting for a man’s life and are running 20 minutes late? What a JOKE!!!!!!!!

Here’s Houston criminal defense lawyer Troy McKinney’s (an HCCLA past president and, more importantly, my attorney) reply to the argument that Keller was just following the rules, from comments on today’s Houston Chronicle editorial calling for Keller’s ouster:

The Supreme Court of the United States did not grant certiorari on the case involving the chemicals used in the death solution until that day. There were not days and weeks to prepare. There was less than one full day. As I understand it, it took until afternoon to get the materials that were used to obtain the review in DC and then the rest of the afternoon to draft the materials for the Court of Criminal Appeals. Although the Texas Supreme Court allows email or fax filing of emergency matters, Judge Keller also refused to allow the petition and motion to be filed by fax or email. The court even refused to allow a single copy to be filed immediately and the remaining 11 required copies (of the several hundred page document) to be filed shortly thereafter. At 5:20 p.m., when it was ready to file, the doors to the clerk’s office were locked so there was no way to get it to the people at the court (including in the clerk’s office) who were still at the court.

Never before has the Texas Court of Criminal Appeals not been available on the day, evening, or night of an execution to accept whatever, if anything, was to be filed — unless they were told in advance that nothing would be filed. Of course, here, Judge Keller through the clerk and staff was told that something would be filed and she made a conscious decision not to allow it be by closing the court and making the clerk’s office unavailable.

The decisions made by Presiding Judge Keller are inexcusable.

The Harris County Criminal Lawyers Association is also filing a complaint with the Judicial Conduct Commission. There will be over 100 local lawyers who sign it.

I hope it’s clear from my previous posts where I stand on Judge Killer – on this issue as well as others. But let me make 2 points here.

#1) I still think it’s possible to argue that Michael Richard’s lawyers could have been more prepared. Yes, cert was granted that day, but the Supreme Court doesn’t just grant cert out of the blue. This case had been pending for awhile, including of course the request for cert. 

Lawyers should be up to date on the types of cases they are handling, whether initially before the trial stage, or in the post conviction/extraordinary remedy situation. Having said that, this was a pretty unusual situation, and I should have made it clearer that I’m not criticizing the lawyers in this particular case. My comments were meant partly as general advice – and were more specifically labeled as the one / one millionth of one percent of what was defensible of Judge Killer’s quote about her decision.

I’m no stranger myself to paranoia about missing deadlines, and I try to have several levels of safeguards in place to ensure that doesn’t happen. 

But, and this is the biggie…

#2) If it really really had been the fault of the lawyer, then the execution is even more – not less – inexcusable.

So, if as they claim the ‘lawyer should have known better,’ the pro-death penalty argument is truly senseless.

If you believe that the lawyer was the one to blame – rather than say a corrupt, lazy and intellectually dishonest judge – well…

Should the client DIE because his lawyer screwed up?

Is that what passes for ‘justice’ nowadays?

Glad to see national coverage on ABC News about Judge Sharon Killer’s refusal to keep the Court of Criminal Appeals open an extra 20 minutes to allow defense lawyers, who were apparently having computer/technical difficulties, to file a stay of execution.

Some quick background. The United States Supreme Court has agreed to hear a case, Baze v. Rees,  to decide whether lethal injection is a constitutionally permissible execution method. The legal issues get a little more complicated than that actually, but suffice it to say that this isn’t some crackpot defense lawyer theory: the American Medical Association’s code of ethics prohibits its members from participating in lethal injections. And there is ample evidence to show that without proper medical attention, lethal injection executions run a high risk of being botched. 

Botched execution methods? Potential for Eighth Amendment cruel and unusual punishment appeals? Apparently SCOTUS wants to take a look at the issue.

So, many states are wisely deciding to stay executions using this method until the Supremes come to a decision. After all, it’ll be a little hard to ‘undo’ the punishment, if SCOTUS rules for the defense.

Back to Judge Killer. When Michael Richard’s lawyers called to alert the court that they were having problems getting to the court by 5 p.m., they were told, essentially, “tough s**t”.   No extra hour, not even an extra minute to file the appeal. Richard’s lawyers wanted the stay based on the Baze case. And they would have eventually gotten it.

How do we know? Well, the US Supreme Court ordered Texas to halt an execution two days later, based on the same reason for appeal.

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

[Also see Mark Bennett’s blog to sign the complaint being filed in this matter.]

Last week I referenced that the U.S. Congress Joint Economic Committee was holding a hearing on the over incarceration problem in America.

More specifically I anticipated that the testimony of Dr. Glen Loury and Dr. Bruce Western of Brown and Harvard respectively would be worth listening to. And indeed it was.

From Loury:

First, I wish to emphasize that with the advent of the mass incarceration policy we have witnessed an historic expansion of coercive state power, deployed internally on a massive scale. Violent crime peaked in the early 1990s, and began what has proven to be a long, precipitous decline…

As a result of this policy, the American prison system has grown into a leviathan unmatched in human history. Never has a supposedly “free country” denied basic liberty to so many of its citizens.

As of December 2006, some two-and-one-quarter million persons were being held in the nearly 5,000 prisons and jails that are scattered, like an archipelago, across America’s urban and rural landscapes.

Incarceration is now being used in the United States on an unprecedented scale. We imprison at a far higher rate than any other industrial democracy in the world. We imprison at a higher rate than Russia or China, and vastly more than any of the countries in Europe.

And, it is costing us a veritable fortune. Spending on law enforcement and corrections at all levels of government now totals roughly a fifth of a trillion dollars per year. In constant dollars, this spending has more than quadrupled over the last quarter century.

From Western:

Three types of policies would help alleviate the social and economic effects of mass incarceration.

1) Congress should re-examine the large of number of collateral consequences limiting the access of ex-felons to Federal benefits and employment. Many restrictions such as limitations on educational, welfare, and housing benefits do not serve public safety, impede the reintegration of the formerly-incarcerated, and penalize family members. While restrictions on benefits or employment might be justified if they are closely linked to particular crimes, such restrictions should be strictly time-limited, given the strong pattern of criminal desistance with age.

2) Congress should support prisoner re-entry programs that provide transitional employment and other services. Well-designed programs have been found to improve employment and reduce recidivism. Research suggests that community-based re-entry programs should ideally be integrated with education and other programs in prison, and also provide housing, drug treatment, and health care to improve the job readiness of released-prisoners. Post-prison employment would be encouraged by passage of the Second Chance Act of 2007. Employer incentives can be promoted through expansions of the Work Opportunity Tax Credit and the Federal Bonding Program. Taken together, these three measures would provide an important first step to a comprehensive Federal re-entry policy.

3) Congress should support the establishment of criminal justice social impact panels in local jurisdictions that can evaluate unwarranted disparities in juvenile and adult incarceration. By assessing the link between socio-economic disparities in offending to disparities in incarceration, local social impact panels could identify and take steps to eliminate disproportionate incarceration in poor and minority communities. Social-impact panels could also be charged with assessing disparities that may arise under proposed sentencing reforms.

These snippets are literally the tip of the iceberg. Read the transcripts and spread the word that incarceration is not the solution to everything.

Do news anchors giggle when they read stories about Theft, Murder, Burglary, Rape, Assault, Kidnapping, etc.?  Obviously not.


How do we explain the behavior of the anchors (all of them) in the above clip then?


Simple.  They know their audience thinks that possession of marijuana is not serious criminal activity.  Probably shouldn’t be criminalized at all.  And they aren’t afraid to show it.


Why then must State and Federal legislators continue the charade?

The always excellent Adam Liptak writes about a ‘quirk’ of United States Supreme Court death penalty jurisprudence: the fact that it takes 4 justices to grant review, but 5 to stay an execution leads to the execution of defendants before their cases can be heard.

From ‘Going to Court, But Not in Time to Live”:

It is possible, then, for a death row inmate to persuade the court that his case is so important that it deserves a place on the court’s tiny docket of roughly 80 cases a year — but not so important that he should be allowed to stay alive in the meantime.

Consider the case of Luther J. Williams, who was put to death on Aug. 23 in Alabama. Four justices had voted to stay the execution.

Mr. Williams’s appeal included a challenge to the constitutionality of the chemicals used in lethal injections, which have the potential to cause excruciating torture if administered improperly. A month after his execution, the court agreed to hear that question in another case.

When you hear death penalty advocates insist that all defendants have had full access to the courts… remember that this is the definition of full access.

Supreme Court math used to yield different results. As Justice Lewis F. Powell Jr. wrote in a 1986 decision, “the court has ordinarily stayed executions when four members have voted” to hear an appeal.

But Justice Powell, who was in those days often the swing vote, grew testy about the practice. It “illustrates how easily the system is manipulated in capital cases,” he wrote to the other justices after providing the fifth vote for a stay as a courtesy in a 1985 case.

By 1990, things had changed. “For the first time in recent memory,” Justice William J. Brennan Jr. wrote, “a man will be executed after the court has decided to hear his claim.” The man was James E. Smith, and he was put to death in Texas the day the stay was denied.

This is one of those situations where there’s a clear injustice, and a simple solution.

#1) The reason it doesn’t take 5 justices (out of 9 total) to grant a petition to hear a case in the Supreme Court is that they haven’t actually heard the case yet, so they don’t know how many total votes for reversal there might be. 4 out of 9 to grant review is perfectly reasonably. That fifth vote to reverse is frequently there.

#2) Requiring 5 out of 9 to grant a stay of execution is ridiculous, in light of #1.

#3) The current rules lead to absurd (never mind unfair, immoral, illogical, etc.) results. So change the rule. Make it 4 out of 9. Simple – ‘nuff said.

Gosh, next thing you know, ‘full access to the courts’ will mean they’ll be executing people because some lawyer forgot to file a petition on time, rather than on the basis of actual guilt. Or that executing the actual innocent defendant doesn’t rise to the level of cruel and unusual punishment.

Oh wait…

Robbie Cooper of UrbanGrounds has weighed in at the comments section of my post ‘A Staunch Pro Death Penalty Advocate Responds’.

For some background, the blogversation starts with Radley Balko, comes to “Execution is Proof of Guilt in Texas,” and has sparked a new thread at Defending People.

Before we get to the meat of Robbie’s comment, let me set the table.

First, Mark pointed out that Robbie was unaware that Texas does now indeed have Life without the possibility of parole in capital cases. And indeed, many Texas District Attorneys opposed giving the jury the option to sentence a defendant to LWOP. And support the destruction of evidence that could prove a defendant’s innocence post conviction, as long as we’re on the subject.

Most defense lawyers believe that opposition to the LWOP option was based, at least in part, in the prosecutors wanting to be able to subtly argue that if the defendant wasn’t executed, he’d be released soon – perhaps even ride the elevator down with the jurors!

Defense lawyers were overwhelmingly in favor of the Life Without Parole option. Go figure.

Back to the main points in Robbie’s comments as to why he favors the death penalty. #1 was ‘there ought to be LWOP’ combined with ‘convicted murderers can still kill while imprisoned’. The rest:

#2) Some people are just pure evil. And the world is a better place without them. Most of the people who are sentenced to die fit this description.

#3) The death penalty isn’t about deterrence. It isn’t about revenge. It’s about justice — it’s about making the penalty for committing the crime equal to or worse than the violence committed upon their victims. Some people commit such ghastly crimes, that death is the only suitable and just punishment.

#4) But mostly, I support it because I believe that the value of human life is so high, that it is best affirmed by killing those who would kill others; that the ultimate price for taking a human life should be to give up your own.

I’m glad you didn’t mention general deterrence.

OK. Point by point.

#2) Some people are just pure evil. Perhaps true, perhaps not. It’s somewhere between a matter of opinion, and a matter of semantics.

But given that the comments from Jeff Deustch earlier in the threads focused on the absolute mathematical certainty that you can’t have a perfect death penalty system and supporters should expect some innocent deaths, it seems out of place. 

I mean, we started the discussion with Balko’s point about Texas DA’s opposing DNA testing for an already executed defendant. Robbie, it’s that kind of thinking that answers your question:

Of the more than 1000 people executed in the U.S. and the more than 400 people executed by the State of Texas — has a single one of them ever been exonerated by a court of law?

Not when folks aren’t allowed to investigate. Kind of makes it impossible to prove. And for the most part, well over 99.99% of the time, the defense lawyers stop working after their client is killed.

But defense lawyers should also acknowledge that we use a variation of this argument ourselves at times. If you can throw in a healthy dose of ‘the S.O.B. needed killing’ into your self defense argument in a murder trial, you’re going to do it. Yes, there are obvious differences, but let’s admit we aren’t above playing that card ourselves.

#3) The death penalty isn’t about deterrence or revenge. It’s about justice. Again, it’s only justice if you’ve got the right guy. And that’s one of my main problems with the death penalty.

Actually though, I think the point is about restitution. I think that’s the proper legal term for it.

If someone is convicted of theft, they are ordered to pay back what was stolen or damaged. If someone is convicted of a DWI involving a collision, they will be ordered to pay the owner of the other vehicle, or perhaps just the deductible if insurance paid.

The main argument, although rarely enunciated this way, that the State has going for it is the belief by the jury that the family of the decedent will feel better if the defendant is executed. I won’t pretend to be an expert on the subject, but I believe that in fact, there are studies that show that families who initially supported the death penalty in fact get no satisfaction from it.

Assuming that a loved one has been murdered, and that the defendant is the murderer, if the family members don’t actually get this ‘restitution’ as I’m labeling it, I think this argument fails. But, I think in some ways it’s the strongest argument for capital punishment.

#4) The value of human life is so high, that it is best affirmed by killing those who would kill others.

Honestly, and I’m going easy on this one… I just don’t get it.

You either believe #4, or you don’t.

This is an important subject; please feel free to weigh in…

Anne Reed tagged me (and thanks for the compliment) in her Simply the Best meme, and asks that I pay it forward. I feel a bit like Robert Ambrogi, who said about being an earlier victim of the original tagger – the anonymous Blawg Review editor:

I truly hate these things. The editor of Blawg Review (who I don’t hate) has started a meme he calls Simply the Best. He’s tagged his top 10 law blogs; each of them, in turn, is supposed to tag theirs, and so on, until we end up with one great big group hug. I’ve now been tagged — by both J. Craig Williams and Monica Bay — and had to think long and hard before joining in. (Legal Blog Watch, where I co-blog with Carolyn Elefant, has also been tagged.

Here’s the problem: My feedreader tells me that I subscribe to the RSS feeds of roughly 350 blogs. Those are the ones I at least scan on a regular basis. Almost every day, it seems, I discover yet another blog that I like. There are hundreds, if not thousands, of really good blogs out there. To pick 10 from among them is somewhat arbitrary and certainly capricious.

OK, so I don’t really hate memes – I just used that block quote to tag some more folks I could have included in my list. Yes, that’s cheating. It allows to me to tag more than ten blawgers. But it’s hard to pare this down to 10.

And I’m going to cheat some more by disqualifying Defending People and Simple Justice for the same reason that Anne did, that is, that she had meme’d them earlier this week. Well, actually I’m probably disqualifying them for the real reason that she did: more cheating and it allows for more in the list. Heck, if I’m gonna think like that, I may as well disqualify Gideon and Capital Defense Weekly just because they made Anne’s list. And Doug Berman for making the original list.

Alright, enough stalling/cheating. Here’s my ‘I wish I had more spots’ and in no particular order top 10:

And polishing it off, neither a law nor even a lawyer blog, just a guy that blogs about how to blog, which all blogging lawyers can use…

There you go. Also, I left out about 30-70. But those I named must press on…

Update: Others have joined in.

May It Please the Court, The Common Scold, The UCL Practitioner, Robert Ambrogi’s LawSites, Where’s Travis McGee?, What About Clients?, New York Personal Injury Law Blog, Overlawyered, TalkLeft, Lowering the Bar, Charon QC, Arbitrary and Capricious, Binary Law, Sui Generis, Nearly Legal, Legal Blog Watch, StandDown Texas Project, Minor Wisdom, Family Lore, Law School Innovation, GeekLawyer, lo-fi librarian, China Law Blog, More Partner Income, Patent Baristas, The California Blog of Appeal, Decision of the Day, QuizLaw, f/k/a

The federal Marihuana Tax Stamp Act was passed on October 2, 1937, seventy years ago today. It was the first law criminalizing marijuana sale and possession in the United States.

That very day, the FBI arrested Samuel Caldwell for selling two joints to Moses Baca who was also arrested. Caldwell was sentenced to four years in Leavenworth; Baca 18 months. Neither was paroled. The maximum was five years.

Technically speaking Caldwell’s crime was not buying the $1 stamp that was a tax levied on the purchase and sale of marijuana. Apparently it was no legal defense that the stamp wasn’t available; after all, he was arrested the day the law was enacted – the stamps didn’t exist yet.

From the NORML website, the judge in his case sounds like he may have had a part in ghost writing Reefer Madness:

Caldwell’s wares, two marijuana cigarettes, deeply offended Judge Foster Symes, who said:

"I consider marijuana the worst of all narcotics, far worse than the use of morphine or cocaine. Under its influence men become beasts. Marijuana destroys life itself. I have no sympathy with those who sell this weed. The government is going to enforce this new law to the letter."

Some thirty two years later, the United States Supreme Court struck down the Tax Stamp Act as unconstitutionally violating a defendant’s Fifth Amendment right against self-incrimination. Leary v. United States, 395 U.S. 6 (1969). Yes, that Timothy Leary. But I digress.

Of course, the case didn’t do Mr. Caldwell any good, because he had already served his four years, day for day, and in fact got no satisfaction at all since he died about a year after being released.

And all 50 states as well as the Federal Government have simply moved on to directly criminalizing marijuana sale and possession. And the prison industry thanks them for it.

Other bloggers/Same Subject: DrugWarRant, Friendly Fire.


[UPDATE:  Oooops.  Maybe this is the second arrest.]

[Hat Tip: Dave Shapiro, who posted this article on the Austin Criminal Defense Lawyer’s Association listserv.]

UTEP hosted a conference called “Interrogations & Confessions: A Conference Exploring Current Research, Practice, and Policy,” last week. The Rio Grande Guardian wrote an article** about it.

The recent spate of DNA exonerations, usually in death penalty cases, has understandably increased interest in the previously widely disbelieved phenomenon of false confessions. The Innocence Project reports that fully one quarter of wrongful convictions involve false confessions:

False confessions and incriminating statements lead to wrongful convictions in 25 percent of cases. More than 350 jurisdictions now record interrogations.

False confessions are another leading cause of wrongful convictions. Twenty-five percent of cases involve a false confession or incriminating statement made by the defendant.

Of those cases, 35 percent were 18 or under and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings.

More than 350 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

From the Rio Grande Guardian article:

Professor Ray Bull, from the University of Leicester, spoke on what really happens in police interviews with suspects. He helped to develop reforms in the United Kingdom. That country responded to problems within the criminal justice system and changed the way interrogations were conducted. Tape recording of all interviews with suspects is now mandatory.

“It’s a win-win situation,” said Meissner, who reported that in areas where interrogations are tape recorded, everyone is happy. Judges, prosecutors, defense attorneys and police who are often accused of using force, all can rely on the tape instead of someone’s word. There are fewer expert fees and court costs involved when interrogations are taped, he added.

So, the UK has it right. At least when it comes to capital cases in the United States, we need to go to an absolute rule: Eligibility for the Death Penalty Requires a Videotaped Confession.

We would need rules and jury instructions as well regarding the circumstances surrounding any ‘confessions’.

I assume this would satisfy folks like Jeffrey Deustch, who has been polite enough to engage me and other readers of the blog in a death penalty debate recently.

People who are less concerned with the ‘accuracy rate’ when it comes to the ultimate punishment will remain unconvincible.  But in the meantime, anyone else want to add Texas to that Innocence Project list?

[** Given the url, which ends with “/features_story.asp?story_no=1” I fear this link may go dead. If so, maybe you can use the search feature in the future to look for the story.]