The state’s highest criminal court dismissed the indictments against former Gov. Rick Perry on Wednesday morning, apparently ending the case that started with his threat to veto state funding for a local prosecutor if she refused to quit her office.
After Travis County District Attorney Rosemary Lehmberg was arrested and pleaded guilty to driving while intoxicated, Perry threatened to veto state funding for her office unless she first resigned. The Travis County DA's office was home to the state's public integrity unit, which is charged with investigating and prosecuting state corruption.
Lehmberg, who served a short jail term, refused to quit. Perry followed through on his threat to veto state funding for her office.
He was indicted by a grand jury, accused of using his office to coerce a public official. He and his lawyers argued — successfully, as it turns out — that he was acting within the powers of a governor and did nothing criminal.
Here's the only news we need more of.
Two of the courts nine judges dissented; one abstained.
Here are the nine Texas Court of Criminal Appeals judges. They include Chief Justice Sharon "Killer" Keller, Bert Richardson (about whom I have written extensively and endorsed in 2014) Larry Meyers (the only Democrat on the bench), and six other greasy no-name Republicans. Until I know for sure, I'll wager that Richardson and Meyers were the dissenters -- or the abstention. Meyers (Place 2), Place 5 (open) and Place 6 (Keasler, R incumbent) are on your November ballot. We'll be blogging a lot more over the next eight months but for now, keep in mind that this court needs fresh, uncorrupted faces.
You get the highest criminal court in Texas ruling that it's legally okay for pervos to take upskirts.
Confused and frustrated people tore out enough hair to fill a ten-gallon hat when the Texas Court of Criminal Appeals ruled that a statute banning “improper photography,” such as taking sketchy shots of children in bathing suits who have no idea they are being photographed, was unconstitutional this week. The WTF reactions went beyond the Lone Star State with national newssites wondering how it was possible that such a blatant personal violation — and one that is a potential harbinger of child pornography — could have no legal ramifications?
Yet, with almost complete unanimity (only one of the nine judges dissented), the highest criminal court in Texas struck down the section of the improper photography law that forbids taking photographs in non-bathroom and non-dressing room spaces (essentially public spaces) under the following conditions:
— without the other person’s consent; and
— with intent to arouse or gratify the sexual desire of any person
Didn't I just reference something about the egregious, horrid, painfully obnoxious, conservative-extremist-Republican Court of Criminal Appeals less than a week ago? I wonder if any straight-ticket-voting Republicans will try to blame this on those ACLU socialists at the CCA.
The case they decided involved a nice fellow -- none of his neighbors would have ever guessed he was a weirdo -- who took photos and video of women, and young children, in their swimming attire. Please note that bastion of Puritans in Massachusetts has specifically banned upskirt photos. Oh, and the Texas Lege went a little farther. But they apparently stretched too far -- surprise! -- and the court struck the law down.
It is evident in the ruling that fears of potentially sweeping First Amendment violations drove the ruling, which is painfully ironic considering presiding Judge Sharon Keller’s disregard for other individual rights. Keller earned the nickname “Sharon Killer” for effectively blocking the stay of an execution in 2007 by refusing to let her court remain open past 5 p.m. Apparently, Keller’s rigidly lethal punctuality is tempered by her generous view of freedom of expression.
There remain plenty of defenders of the right to... something.
Creepy? Yeah. Illegal? Not so, the Court of Appeals ruled.
The photos themselves and the act of using a camera are covered by the First Amendment’s protections of freedom of speech, the court said. If the photos aren’t actually obscene, it’s not the government’s job to police how a person reacts to them.
People in public can’t expect total privacy, the court went on. They are, after all, publicly visible to anyone who might pass by. Even someone taking an upskirt photo.
“A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their heads,” the court said.
The original law does accomplish what it aimed to do, criminalize upskirt photos, the court added. But it goes much farther than that, which could lead to the law being misused — which is why they struck it down.
“This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street,” the court said.
Bottom line? The invasion of privacy of an upskirt photo is “intolerable, and the legislature ought to ban it, the court said. This just isn’t the law to do it.
Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the 1st Amendment was designed to guard against. We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from 1st Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression.
Yup, you read that right — anti-creepshot laws are “paternalistic.” Indeed, Thompson’s attorney echoed this sentiment, in casting the laws as “Orwellian.”
This story should give pause to Texan women everywhere. The Court essentially ruled that women anywhere out in public have no reasonable expectation of privacy, even if an unwanted photographer’s intent is overtly sexual — in practice, it makes visiting a water park for a woman in Texas like signing a release waver to be ogled and snapshotted. This isn’t to say that freedom of expression, photography and videography rules in public places aren’t important — they undoubtedly are, and forcing courts and juries to make judgments about the intent behind random photographs can be a precarious position.
But as the law stands now, especially after this ruling, it’s hard not to feel as though Texas’ women are being failed in the most basic of ways. When the same anti-creepshot law was ruled against in 2013, the Bexar County district attorney’s office put out a press release with a cautionary title, according to The Guardian: “Cover up while we appeal.” For now, at least, that message still rings true — in Texas, it seems, wearing a swimsuit in a public place is giving license to lech.
I'd like to think that Texas women -- and yes, Texas liberals and progressives, the people who are the only ones concerned with the greater good -- could begin to gradually correct some of this legal nonsense by establishing a habit of voting every time there's an election. And if the tide is turning; if it's happening as this is written, then all the better. I'd just like to live long enough to see some progress made with regard to the Neanderthals in the Texas judicial system evolving into something that comes closer to being human. You know, with a soul and/or a conscience.
When you go up against these thugs, you better be well-armed and well-prepared.
Nearly seven months after the 4th Court of Appeals ruled prosecutors had missed the deadline to file a contempt claim against local defense attorney Michael McCrum, the decision was reversed Wednesday by Texas' highest court for criminal matters.
The Court of Criminal Appeals opinion again opens the possibility that McCrum — currently serving as special prosecutor in the case against Gov. Rick Perry, who is also accused of professional misconduct — could spend up to six months in jail if found in contempt of court.
McCrum has denied any wrongdoing.
The Bexar County district attorney's office filed the contempt motion against McCrum in January, several months after a trial in which his client, Taylor Rae Rosenbusch, was convicted of intoxication manslaughter.
Prosecutors alleged McCrum had instructed Melanie Little, a punishment-phase witness who had served as Rosenbusch's addiction counselor, to “get lost for awhile,” turn off her cellphone and take a long lunch to avoid coming back to testify.
He was also accused in court documents of having told her “the DA was out for blood” and “wanted Taylor to be put away for a long time.”
A contempt hearing began in January, but it was halted after McCrum's attorneys took the case to the San Antonio-based 4th Court of Appeals, arguing that the state missed its deadline. The 4th Court agreed, ruling in February that the state was five days late.
The article goes on to detail some of the long-standing grievances between McCrum and the Bexar County DA's office. Bad blood indeed.
That could make for some awkward moments next year in the CCA building.
I'd like to see more develop out of this investigation or hearing or whatever it may be called as it moves forward, but I expect McCrum and his counsel to be ready and able to defend his integrity, should the claims against him proceed.
I just don't think Rick Perry's indictments are going away so easily.
-- Barack Obama appears to have carried Harris County by two votes. Out of almost 1.2 million cast. There are still provisionals and a few mailed stragglers to be counted, so the outcome of which party controls elections in two years is still to be determined. We're split right down the middle here, folks.
I suppose somebody might choose to blame their losing on one of the two third parties.
-- Texas House Dems gained seven seats in the Lege, with Craig Eiland holding on to retain his Galveston-area seat. Gene Wu is the brightest star in that freshman class of 2013.
-- County Attorney Vince Ryan turned back Crazy Bob Talton 51.5-48.5. Maybe that stripper donation business cost him. Sheriff Adrian Garcia's race was closer (53-45) than it should have been, and not because of Remington Alessi (2%). Dr. Diane Trautman beat the Republican incumbent to claim a win for Harris County School Trustee.
-- Harris County Democratic incumbent judges Al Bennett, Larry Weiman, Kyle Carter, RK Sandhill, Michael Gomez, Jaclanel McFarland, Mike Engelhart, Robert Schaeffer, Alexandra Smoots-Hogan, Ruben Guerrero, David Mendoza, and Maria Jackson were all returned to the bench. Elaine Palmer, who defeated Judge Steven Kirkland in the May primary, also was elected.
D incumbents Josefina Rendon, Shawna Reagin, Randy Roll, Herb Ritchie, Erica Graham, and Damon Crenshaw and challengers Tracy Good, Donna Roth, Vivian King, and Mack McInnis all fell short.
All of these contests were decided by 3 percentage points or less, mostly on the strength of straight ticket voting. But the undervotes also played a large part in the demise of the Dems who lost. Apparently 60-70,000 voters who did not vote straight party didn't make it down the ballot to their races.
-- The two unopposed (by any Democrat) Greens on the statewide ballot, Josh Wendel running for TRC and Charles Waterbury for SCOTX, earned 10% in Harris County and 8% across Texas. Other Greens in downballot races performed to this level in statehouse races: David Courtney (SD-17, no Dem running) got 9%, Chris Christal (SD-26, against Dem incumbent Leticia Van De Putte) got 6%. Matthew Britt, the only candidate running against the odious Phil King in HD-61, gathered 11%. Herb Gonzales ran against a Dem incumbent in HD-124 and picked up 15%. Closer to home, Art Browning got nearly 10% as the sole challenger to Allen Fletcher. And Henry Cooper ran hard against Jessica Farrar, getting 14%.
These are foundational numbers for the Texas Green Party, and can be built upon in the future.
-- That said, the Libertarian Party of Texas approximately doubled the numbers of the Greens across the state. They have a better idea about how to secure continuous ballot access, running someone everywhere. They pose a greater long-term threat to Texas Republicans than do Texas Democrats, in my humble O.
(This last barely qualifies as good, in case you were wondering.)
Bad:
As mentioned last night, Texas Democrats have at least ten points of ground to make up with the electorate statewide. Keith Hampton's 55-41 defeat to Sharon Keller is particularly bitter. The appeals court wins were concentrated in the San Antonio-based 4th district, and the winners had Latino surnames. The two Harris County CCA, First and Fourteenth, saw Democratic challengers like Nile Copeland and Barbara Gardner lose by 5 to 7 points (53-46). Justice is still red as a baboon's behind in the Lone Star State.
-- Jill Stein got three-tenths of one percent of the Texas electorate. Disappointing to say the least. Gary Johnson got almost four times as much and that's underperforming for him compared to the rest of the country. I'll have more to say about this in the coming days.
-- Ann Harris Bennett lost her race for tax assessor/collector by 2,400 votes out of over 1.1 million total. There were almost 49,000 undervotes in that tilt.
Ugly:
There's some, but I'll hold it until later.
Charles Kuffner's wrap from last night covered a lot of this ground, and South Texas Chisme excerpts the Brownsville Herald's executive summary graf.
More added to this post as responses and analysis trickle out today.
(Keller) is the judge who shut the courthouse doors promptly at 5PM to a death-sentenced inmate, and agreed that poor people aren’t entitled to lawyers who remain awake during trial.
Here's Scott Henson at Grits for Breakfast, outlining the pitch-perfect strategy Hampton must pursue if he is to win.
Judge Keller, the self-styled, "pro-prosecution" judge,
has so much baggage coming in it'd be hard to know where to attack
first. The findings of facts against her by the Commission on Judicial
Conduct were damning and provide ample fodder for campaign attacks. (Her
punishment was overturned as illegal but the findings of fact on the merits remained untouched in a circus-like tragi-comedy that embarrassed the court and the state.) Keller was also fined by the Ethics Commission $100,000 for failing to disclose a vast web of financial entanglements. (See the ruling [pdf].)
Even more than those dark moments, though, many of her opinions and
dissents contain jaw-dropping pro-government assumptions that could be
mined for anti-populist material that would make any good Tea-Party type
cringe. Just as Governor Perry's greatest political achievement has
been to maximize power over state agencies through appointments of
political allies, creating a (relatively) strong executive where Texas
historically had a weak one, Judge Keller's principal achievement as the
CCA's Presiding Judge has been to oversee (and arguably principally
author) an expansionist accumulation of government power by law
enforcement and prosecutors over nearly two decades. A comprehensive
vetting of her opinions by a campaign researcher would yield lots of
attack fodder. But (Hampton) must undertake that work, then use
the information to construct and deliver political attacks: That's the
piece that I'm not sure is going to happen, though there's still time.
Most recently, the state of Texas executed a man whose IQ of 61 defined him as retarded. Though the United States Supreme Court has ruled that mentally incapacitated people are not to be executed, Sharon Keller -- and Antonin Scalia -- made sure he was put to death anyway.
Keith Hampton is the only sane option for Democrats, Greens, Libertarians, and Republicans. Period, end of story.
Hampton has a Facebook page, and here's his Twitter feed. Do what you can: volunteer, donate, advocate. We can't begin to change much in Texas until we rid our government of fiends like Sharon Keller.
BossKitty at TruthHugger discovered with minimal effort that any group using the words God, Christian, or Jesus has a free ride with the right wing media. Why is accountability off the table if you use those specific words? Rush Limbaugh, blinded by hatred for anything Obama, leaped before he looked at the facts ... and casually acted surprised when the truth was revealed, in Limbaugh Endorsed Christian Cannibals.
BlueBloggin was thrilled that the recent solar activity was only a light show. But because scientists warn that 2012 will experience more frequent solar events, why are the 2012 candidates ignoring this science? Updated: What is a CME and Why Should Presidential Candidates Care.
The Republicans opened a new front in the culture wars in Houston last week, when Pastor Steve Riggle of Grace Community Church suddenly opened fire on Mayor Annise Parker's right to have an opinion on gay marriage. PDiddie of Brains and Eggs has a dispatch from the front line.
For too long we've been told by our elected leaders that our government will be better if we sell it to the highest bidder. WCNews at Eye On Williamson reminds us that only the people can make it stop: Outsourcing at A&M, a microcosm.
Neil at Texas Liberal wrote about the Texas forced sonogram law, and about how this law is state-mandated rape. The facts are going to prevail on this issue. People in Texas, across the nation, and across the world are going to see that Texas has passed a law mandating the rape of some its citizens.
Abbott, 52, has joined a legal brief supporting Arizona's fatally flawed immigration law. He has sued the Environmental Protection Agency for daring to expect Texas to abide by the same, much-needed clean-air rules that apply to all 50 states. He is trying to block federal regulation of greenhouse gases. And when the Obama administration made the necessary decision to temporarily halt deepwater offshore drilling, Abbott filed yet another legal challenge – rather than focusing his efforts on how another disaster could be averted off our shores.
Meanwhile, there's plenty of work that needs to be done in the Texas office of the attorney general.
...
(A)fter eight years of Abbott, Texas can go no farther down this path.
Democratic challenger Barbara Ann Radnofsky offers a viable alternative. She's a smart, hard-nosed attorney who rightly suggests that the incumbent has done a poor job of picking battles. ...
... Radnofsky earns our recommendation. She's well prepared for the job and would back off from battles the state can't win – and shouldn't be fighting. Voters should not give Abbott another four years to tilt at Washington's windmills.
-- There will be a debate between Hector Uribe and Jerry Patterson, the Land Commissioner candidates, tomorrow in Austin.
-- What Kuffner said about Sharon Keller skating. I'm just too revolted to add any more vitriol to the last chapter in this sordid saga. Grits has a take as well.
You may have noticed a recent AP story (picked up by USA Today here) on my announcement that Texas temperatures were rising and that triple-digit temperatures would be the norm within a few decades, as the story put it. I'd like to provide a little context about the story itself and about future Texas climate.
First, here is some helpful context that I received by email from an anonymous email account, here quoted in full with a tiny bit of character substitution: "hey you pathetic lying scumbag everybody is laughing at you and the al gore scam. what a stupid poiece of scum you are. professer mt a**. try dumba** al gore a** kisser."
Maybe you'd like some different context? Good.
And it gets better and more 'sciencey' from there.
Berger writes the best blog at the Chron (no disrespect to Dwight or Kate or J.R., who are almost indispensable themselves). During the hurricane season just passed, I didn't look at teevee once for storm information. Just Eric's posts and Stormpulse.
-- Here is last week's Harris County Clerk candidates' debate, between Ann Harris Bennett, Stan Stanart, and Don Cook.
Among his other many outstanding qualifications, Keith Hampton is -- according to Scott Cobb -- the attorney who persuaded Rick Perry to commute the capital punishment of Kenneth Foster.
The Texas Court of Criminal Appeals has developed a reputation as a court that turns its back on verdicts that need a second or third look.
It's easy to see why. Seven of the nine judges have backgrounds as prosecutors, and the presiding judge once campaigned as "pro-prosecutor." Court-watchers recite a list of marquee cases of failed justice. The court's tilt is a concern, considering that Texas leads the nation in executions and has far more DNA-proven miscarriages of justice than any other state.
The Nov. 2 election for Place 6 on the court is an opportunity for a rebalancing. Austin defense attorney Keith Hampton, running against veteran Judge Michael Keasler, has the legal credentials and a perspective now missing on the court: If elected, he would be the only member to have involvement in a capital murder case from indictment all the way to the U.S. Supreme Court.
Hampton, 49, a Democrat, has pushed for important legal reforms in Austin as legislative director for the Texas Criminal Defense Lawyers Association. One effort led to a law giving juries the option of life without parole for murderers. An unsuccessful effort last year would have improved police photo lineups – an overdue reform in light of widespread cases of documented witness misidentification.
Without any Democrats on the CCA for the past twelve years, the ideological spectrum of the Court has shifted dramatically to the right. One Republican judge on the Court, Lawrence Meyers, recently toured newspaper editorial boards promoting the state’s fairness, prompting Dallas Morning News Editor Michael Landauer to write, “Try not to laugh.” (Source: Dallas Morning News, June 2009). Scott Henson, an award-winning blogger who writes for the non-partisan criminal justice site Grits for Breakfast, wrote the following about the political nature of the CCA:
There is no liberal wing on the Texas Court of Criminal Appeals. There’s a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller. (Source: Grits for Breakfast, June 2009)
The “totalitarian wing” of the Court has a well-documented and thoroughly perplexing history of unprofessional actions. From the “sleeping lawyer” case in October 2000, to investigations into the judicial conduct of Sharon Keller in 2007, the Texas Court of Criminal Appeals is in desperate need of professional, accountable judges on its bench.
-- Bill Hammond, the president of the Texas Association of Business, tried to compare Bill White's plan for transportation to California. He got McBloggered for that.
-- Former chair of the Texas State Board of Education Don McLeroy, defeated in the Republican primary for re-election (because apparently even the GOP can occasionally be embarrassed), continues to shame the entire state.
-- The Texas Supreme Court bravely upholds Sharon "Killer" Keller's slap on the wrist.
-- Greg Abbott, who has waded into every single federal law issued or proposed of late with his popguns blazing -- from comprehensive healthcare reform to cap-and-trade to the offshore drilling ban -- declines to offer an opinion on whether transgender marriage might be "legal" in Texas.
“What is important is that a handful of people – the superintendent, the one (one!) librarian, and “several” (three? five?) parents – took it upon themselves to overrule the vast majority of teachers and librarians and students who had chosen one of the most popular YA authors in America to be their headliner,” wrote Hautman in a blog post. “That is a form of censorship as damaging and inexcusable as setting fire to a library.” And on her blog, de la Cruz wrote, “I believe that as a writer, we have to stick up for each other, and against censorship, and against people who want to tell everyone else what to think, what to read, what to watch.”
Censorship? At a Houston-area high school? Tell me no.
As the state convention opens today in Corpus, this series on the Texas Democratic Party's slate of statewide candidates continues with the bios and introductory videos of the candidates for Commissioner of the General Land Office Hector Uribe, and the nominees for state Supreme Court Blake Bailey and Court of Criminal Appeals Keith Hampton.
Uribe's goal is to lead the GLO from 20th century hydrocarbon-based energy sources to 21st century renewable ones. Uribe will vigorously battle global warming by promoting renewable energy sources such as wind and solar power, while preventing any negative impact to the revenue streams that flow into the Permanent School Fund.
Uribe has extensive experience in legislative and governmental advocacy, having served almost a decade in the Texas Senate and 3 years in the Texas House. Equal educational opportunity, economic development, and job creation were the hallmarks of Uribe’s tenure as a state senator.
He authored the bill to merge Pan American University into the UT System (it's now called UT-Kingsville), providing graduate programs to previously underserved college students in the Rio Grande Valley. He similarly authored the Texas Enterprise Zone Act, designed to create new businesses and jobs in economically depressed areas. His varied legislative committee assignments prepared him in a broad range of areas including the protection of our environment. He chaired the Senate’s standing subcommittee on Water and vice-chaired the joint subcommittee on Oil Spills and Water Pollution Abatement.
But again, the most significant differences come when you compare him to his opponent, incumbent Jerry Patterson. Look:
The Christmas Mountains, in the heart of the Big Bend region of Texas, were given to the state in 1991. They should have been transferred to the National Park Service (NPS) and been made part of Big Bend National Park a long time ago. However, Republican Land Commissioner Jerry Patterson has prevented that from happening, insisting that he wants to sell the Mountains to a private entity.
The foundation that gave the land to Texas wanted the Christmas Mountains to remain public. Patterson refused to transfer the Mountains to the NPS because he claimed to take issue with any entity that disallows firearms – but in reality, Patterson is just an ineffective steward of Texas’ public lands who is more interested in selling Texas off than preserving it. [Source: NPR, 10/22/07]
Congress lifted the ban on firearms in National Parks and President Obama signed the bill into law earlier this year. Because Patterson claimed his refusal to transfer the Mountains stemmed from the NPS ban on firearms, the hope was that he would finally transfer the Mountains to the National Park Service. However, instead of sticking to what he said, Patterson just moved the goal posts. He now says his problem is that hunting would not be allowed in the Mountains under Park Service control. [Source: Washington Post, 2/19/10; San Antonio Express-News, 4/9/10]
If the ban on hunting in national parks were lifted, would Patterson finally drop the act and transfer the Mountains, or just come up with another excuse?
With Hector Uribe, there are no questions about integrity. On Hector’s first day as Land Commissioner, he will transfer the Christmas Mountains to the National Park Service, so that they can be cared for responsibly and enjoyed by Texans for generations to come.
Uribe’s focus will be on protecting Texas’ rich and wild environment. He will be a responsible steward of our vast public lands -- not an ideologue who keeps moving the goal posts however it suits him.
Bailey's pet peeve is the same as mine: the 100% Republican Texas Supreme Court is completely biased against little-guy plaintiffs and in favor of the biggest corporations.
In a recent, Blake Bailey pointed out that Wal-Mart is far more successful appealing lawsuits in Texas than anywhere else in the country. From 1998 to 2005, Wal-Mart has won 100% of the appeals brought against them in Texas; outside of Texas, Wal-Mart has only won 56% of their appeals.
That statistic is the most staggering of a long trend facing the Texas Supreme Court: they have a controversial history of supporting big business in their rulings. From 2005-2006, eighty-two percent of all rulings went in favor of defendants. The rulings themselves wouldn’t be as much of an issue, if it weren’t for the contributions that came along with them.
From 2000-2008, the more money donated to Texas’ Supreme Court justices, the higher the chance of success. A study conducted by the non-partisan consumer advocacy group, Texas Watch, showed that the success rate among donors who gave to the justices on the Supreme Court increased based on how much the donors gave. Here’s a breakdown of their findings:
345 donors who had cases before the court gave less than $10,000. They had a success rate – a favorable court ruling – of 54%.
44 donors who had cases before the court gave between $10,000 and $24,999. Those 44 donors had a 58% success rate on their cases.
48 donors who had cases before the court gave more than $25,000. Those 48 donors had a whopping 64% success rate on their cases.
Justice should not be for sale, regardless of price or party. It is offensive to think that giving more money to the Texas Supreme Court justices will correlate with a higher success rate in the Court – but the findings detailed above demonstrate it to be true.
Bailey's opponent is recently-appointed Justice Eva Guzman... another of Rick Perry's ham-handed attempts at Hispanic outreach. Guzman has accepted large contributions from insurers and bragged on her website about how judicial "reform" has improved the business climate in Texas. Attorneys representing the state's largest insurance companies have even told Bailey point-blank that they were unconcerned about the verdict in a jury trial against his clients, because an appeal to the SCOTX virtually assured them of victory.
This "Supreme Court For Sale to Big Business" aspect is one of the most important things we can change in November.
Hampton is running for the Texas Court of Criminal Appeals, Place 6. He is challenging two-term incumbent Republican Michael Keasler. When first elected in 1998, Keasler replaced the last Democrat to hold a seat on the Court. Since then the CCA has been under complete Republican control. Sound familiar?
Without any Democrats on the CCA for the past twelve years, the ideological spectrum of the Court has shifted dramatically to the right. One Republican judge on the Court, Lawrence Meyers, recently toured newspaper editorial boards promoting the state’s fairness, prompting Dallas Morning News Editor Michael Landauer to write, “Try not to laugh.” (Source: Dallas Morning News, June 2009). Scott Henson, an award-winning blogger who writes for the non-partisan criminal justice site Grits for Breakfast, wrote the following about the political nature of the CCA:
There is no liberal wing on the Texas Court of Criminal Appeals. There’s a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller. (Source: Grits for Breakfast, June 2009)
The “totalitarian wing” of the Court has a well-documented and thoroughly perplexing history of unprofessional actions. From the “sleeping lawyer” case in October 2000, to investigations into the judicial conduct of Sharon Keller in 2007, the Texas Court of Criminal Appeals is in desperate need of professional, accountable judges on its bench.
In order to restore a semblance of fairness and justice to the Court, Texas Democrats can help elect Keith Hampton to the Court of Criminal Appeals, Place 6.
A special master has concluded that Texas Court of Criminal Appeals Presiding Judge Sharon Keller doesn't deserve to be removed from office or even given “further reprimand beyond the public humiliation she has surely suffered” for her conduct in a death row inmate's failed effort to file a last-minute appeal before his execution. San Antonio-based District Judge David Berchelmann Jr., serving as special master in the case of alleged judicial misconduct, wrote that the Texas Defender Service in representing Michael Richard “bears the bulk of fault for what occurred on September 25, 2007.”
Unbe-fucking-lievable. Here's her attorney:
"Judge Keller takes to heart the advice that she should strive to be more collegial and that the Court's internal communications should improve," (attorney Chip) Babcock's statement said.
Interesting to note that "public humiliation" is a substitute for an official reprimand when a judge engages in behavior that's "not exemplary of a public servant" and considered "highly questionable." ... Judge Berchelmann's recommendation will now go to the full Commission on Judicial Conduct who will decide whether to dismiss charges, reprimand Keller, or recommend her removal from office.
The timing of (death row defendant Michael) Richard's last-minute appeal was especially key in this case. He was set to be executed the same day the U.S. Supreme Court stayed all executions in the country after it decided to hear Baze v. Rees, which questioned whether lethal injection constituted cruel and unusual punishment. The SCJC review says Richard's execution would have likelybeen stayed too, but his lawyers had to exhaust the lethal injection argument in state courts first. The claim was never presented to the Texas Court of Criminal Appeals, which Keller leads, after a series of miscommunications between her court and lawyers from the defender service. A key miscommunication had to do with the message about the early closing time.
I gotta say I'm speechless. A compilation from the StandDown Texas Project for the history of this case is here and my previous postings are here.
Equality under the Law? Due Process for all?
Not in Texas. More process than is due to and superior standing under the law is accorded to Chief Judge Keller than to litigants before her. Apparently those who dare approach her Court seeking Justice enjoy neither equality nor due process. She cannot be bothered to keep open the Court House door after 5:00 p.m., even though a defendant's life hang in the balance.
WSJ Law Blog (the most conservative source I would ever post):
Well, we weren’t entirely sure that Sharon Keller, the presiding judge the Texas Court of Criminal Appeals, was going to get in big trouble over the events of Sept. 25, 2007.
But we hardly expected that the special master presiding over the judicial misconduct charges against Keller would blame another party for the unfortunate series of events. Or that the master, San Antonio-based judge David Berchelmann Jr., would express sympathy for Keller.
Ethics in Texas is never really ethical, and this case is no different. Judge Sharon Keller closed her office promptly at 5pm and allowed a man to be executed, rather than accepting the appeal. ...
Republican judges saving Republican judges. Ahhhh the ethics of Texas. Way to go, impartial judiciary.
The Texas Progressive Alliance hopes everyone had a happy Election Day last week, and is already looking forward to the next one. Here are this week's highlights.
refinish69 announces his endorsement for the Democratic nominee for Texas governor at Doing My Part For The Left. The progressive choice has to be Hank Gilbert with his policy issues and especially his strong stance on GLBT issues. Hank Gilbert for Texas Governor was the only choice refinish69 could make.
quizas of South Texas Chisme notes that Galveston medical facilities are among those not notifying about rules for the poor, while CouldBeTrue notes South Texas Democrats join Republicans in shafting poor women. Shame on them.
BossKitty at TruthHugger Let me "dis" the local Austin TV news media who gets around to breaking the health care reform bill news TWO and a half hours later.Hooray for the House, but Austin just lives in a bubble.
Over at BlueBloggin, nytexan takes a long look at another disgusting practice of our medical insurance industry: We Have One Twisted Health System, Living Organ Donors Beware. The organ donor's family is never charged for donating. The family is charged for the cost of all final efforts to save your life, and those costs are sometimes misinterpreted as costs related to organ donation. Surprise for organ donors: unexpected medical bills. An Austin man who gave a kidney to co-worker is one of many who have faced health complications and billing problems.
Harris County Clerk Beverly Kaufman toes the ethical line with her active promotion of an assistant for her job, and the local media thinks that's just fine. Get the details in PDiddie's Brains and Eggs.
At TexasKaos, Libby Shaw has news for John Cornyn and Pete Sessions about the Republican Resurgence. As she notes:
I wouldn't gloat too much, boys. Your job in Washington just got a lot harder. Meanwhile back here at home -- in case you boys forgot that Houston is the largest city in Texas -- three progressive Democrats and one Republican ran for mayor. The Republican dude and the old white guy with boatloads of bucks lost. The run-off race is between a gay woman and an African American male.
Neil at Texas Liberal bought Thanksgiving cards drawn by a young person with cancer who is being treated at Houston's M.D. Anderson Cancer Center. The design Neil bought is both bleak and hopeful.
For a long time it has been universally agreed upon that people should engage in end-of-life planning, at least until right-wing pundits made such discussions a target of their battle against health care reform. Xanthippas at Three Wise Men takes aim at these critics, and the very real harm they do to people with their dishonest and partisan attacks.
Neil at Texas Liberal is back from a two-week vacation that took him to Chicago, Kenosha, Wisconsin, Indianapolis, Cincinnati, Dayton, Ohio and northern Kentucky. This itinerary is consistent with a post he made earlier this summer encouraging folks to visit the industrial midwest. With vacation over, it's time now to think of school and swine flu. It sure would help if more working people had paid sick days to help manage getting sick themselves and having kids sick at home.
Neil at Texas Liberal wrote a helluva post about the inability of the Republican Party to return to its pre-1929 stock crash numbers in the U.S. Senate. He also wrote about the albino buffalo in Kenya. Texas Liberal passed 600,000 total page views this week and is averaging 1570 a day for 2009. Thanks blog reading public!
Arlen Specter's political deathbed conversion didn't strike PDiddie at Brains and Eggs as something wonderful. And Burka's conflating Kay Bailey into the conversation was greeted with even more derision.
BossKitty at TruthHugger wonders about those poor souls on death row who depend on the passion of protesters and technology for hope. Whether they know they are guilty or innocent, at least they know they'll get the needle instead of the chair or the noose. Those death row inmates now have the best chance ever, and with revelations about bias and legal system misconduct front and center, death penalty question marks are getting bolder. Take a look at Killer Texas Laws and Lawmakers Continue To Amaze with many historic reference links to click.
The first is "Killer" Keller's impeachment inquiry. From Trailblazers via Grits:
Sharon Keller, the chief justice of the Texas Court of Criminal Appeals, could soon face impeachment proceedings - there's a resolution under review by the House Judiciary and Civil Jurisprudence Committee to consider impeachment for "gross negligence of duty ... with willful disregard for human life." Keller's court hears appeals in capitol murder cases, and she refused to keep her office open past 5 p.m. to accept an appeals filing hours before an execution in 2007. The committee hearing begins upon final adjournment of the House.
On Monday, the Texas House Judiciary and Civil Jurisprudence Committee will hold a public hearing on a bill which will give Texas bloggers and citizen journalists some much-needed protections under Texas law.
The committee will take public testimony on House Bill 4237 by State Rep. Aaron Pena (D-Edinburg).
This bill gives bloggers and citizen journalists the same protections that the mainstream media has when it comes to covering matters of "public concern," such as legislative proceedings, school board meetings, and the actions of state officials.
Under current law, commonly known as the "Privileged Matters Clause" of the Texas Civil Practices & Remedies Code (Sec. 73.002), coverage by the mainstream media of matters of "public concern" such as those listed above cannot be used as grounds for a libel action.
Texas bloggers and citizen journalists, however, do not have similar protections. In theory, if a politician or officeholder wanted to cause a blog a great deal of problems, he or she could file a libel or slander lawsuit over writings discussing a matter of "public concern." It would then be up to the court system--after, no doubt, significant expense for the blogger or citizen journalist--to determine whether or not the "Privileged Matters Clause" applies to bloggers.
Texas bloggers have been fortunate in that no one has been forced to be a test case for this yet. Rep. Pena's bill ensures that no Texas blogger or citizen journalist ever will. It gives us the same protections as the mainstream media in this regard.
Texas bloggers and citizen journalists have pushed for "Privileged Matters" protection since 2006.
The fight for "Privileged Matters" protection was triggered after State Rep. Vicki Truitt (R-Keller) filed HB 129 in late 2006. Truitt's bill was a broadly-worded bill which would have essentially subjected every blog and citizen journalist in Texas to frivolous lawsuits.
Truitt said the bill was designed to allow people legal recourse if someone knowingly publishes information about them online that could lead to identity theft.
However, her bill was poorly drafted and opened bloggers and citizen journalists to frivolous lawsuits.
Truitt ultimately pulled the bill after Republican and Democratic bloggers (as well as party-neutral bloggers) raised outcry significant enough for the mainstream media to notice.
After Truitt announced she had screwed up on the bill, the Fort Worth Star-Telegram editorialized that bloggers and citizen journalists needed "Privileged Matters" protections, which I first wrote about a couple of days after Truitt's bill was filed:
The law specifically protects "a newspaper or other periodical" from being sued for libel when reporting on things that happen in a court of law, the proceedings of a government body or meetings dealing with public issues.
The protection also extends to "reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern for general information."
One way to look at it is that the Star-Telegram is specifically protected by state law when it criticizes Truitt for her official acts, but Internet bloggers are not. That's not good.
We're both doing the same thing, and we both deserve the same protection for fair reporting and comment.
During the days before the 2007 session, with the controversy over the election for House Speaker and other concerns, it was difficult to find legislators willing to introduce legislation to give bloggers and citizen journalists "Privileged Matters" protections, and the issue was ultimately laid to rest after Truitt pulled her bill with the intent of trying again for the legislation this session.
This session, State Rep. Aaron Pena (D-Edinburg) was asked to carry the legislation and agreed to do so. Pena is himself a blogger and understands the technology and the legal issues at play for bloggers.
If you are in Austin today, make your voice heard. Update: Muse has a Twitter feed posted.
Vince Leibowitz (who wrangles the best of the Texas left-o-sphere each week) notes: "The round-up got drunk at an Oscar party, and I had to chase it up and down the street before one of the dogs finally caught it. Evidently it was upset that the lady from My Cousin Vinny did not win another Academy Award. "
This is a woman who voted to deny freedom to a man imprisoned for rape even after DNA evidence showed the sperm belonged to someone else. Her argument: He might have worn a condom.
Later evidence provided proof of his innocence even she couldn’t explain away.
This is a woman who, with her colleagues, appointed grossly incompetent lawyers to handle appeals for indigent death row inmates and then said, “Sorry, your client had his chance,” when skilled lawyers later came in to try to clean up the messes.
This is a woman who, a week before Christmas in 2002, voted to deny freedom to a man who under pressure had accepted a plea bargain for a crime that new evidence showed — “unquestionably,” according to the trial judge who heard the evidence — he did not commit.
Sadly, those aren't even the worst of this woman's crimes against justice.
Chief Judge Keller went home early and was called shortly before 5 p.m. by Marty. Richard’s lawyers were having computer problems and wanted the clerk’s office to stay open until 5:20 or so to receive their filing. Rather than forward the message to Johnson as policy required, Keller instructed Marty to tell the lawyers no. The lawyers made attempts up until 6 p.m. to deliver the filing but were told nobody was there. Richard was executed at about 8:20 p.m.
Two days later, the Supreme Court stopped all executions by injection based on the same arguments Richard’s lawyers made. Richard was the only convict executed until six months later, when the Supreme Court OK’d lethal injection as constitutional.
Here’s the stunner: The morning after Richard’s execution, the nine judges had their weekly conference. At the end of it some of the judges expressed surprise that Richard’s lawyers hadn’t submitted a filing.
Cochran even raised the question — hypothetically, she thought — of what would happen if the lawyers showed up after the clerk’s office closed. She said the court should accept the filing anyway. According to witnesses, Keller said, “The clerk’s office closes at 5 p.m. It’s not a policy, it’s a fact.”
Keller lacked the decency or the courage to tell her colleagues about the call she had received.
Human life is worth more than property. It seems like a universal truth. But apparently not in Texas, or other states with similar laws.
Over the past week, I've researched the Texas Penal Code and discovered some provisions that were surprising even to this fifth-generation Texan. The law of our land seems to place more value on the property being stolen — even if it belongs to a neighbor — than on the life of the burglar stealing it.
A review of our state's protection-of-property statutes suggests that Horn's repeated declarations about not letting the burglars "get away with it" may be the words that ultimately set him free.
If Horn doesn't get indicted, don't blame the grand jury. And don't blame Harris County District Attorney Chuck Rosenthal. Blame the section of Chapter 9 of the Penal Code that deals with protection of property.
Under the section, which has been in place at least since 1973, a person is justified in using deadly force to protect a neighbor's property from burglary if the person "reasonably believes" deadly force is immediately necessary to stop the burglars from escaping with the stolen property. It's also justified if the shooter "reasonably believes" that "the land or property cannot be protected or recovered by any other means."
The vast majority of Texans -- conservative Republicans and Democrats alike -- love this idea of Judge Roy Bean, "shoot-first-ask-questions-later" dispensation of justice. The rest of us know it's crude, ignorant, and abhorrent, and the majority of nearly 500 comments (at the time of this posting) from Chronicle readers at the link to the op-ed above proves it.
The "hang 'em high" mindset screeches at full volume today on the Chron's website, from that page to the latest report about Judge Sharon "Killer" Keller's 5 p.m. justice. Commenters at both pages represent many more -- and likely a majority of Texans -- who would just as soon take matters into their own heavily armed hands and dispense their personal opinion of 'criminal justice' at the end of a gun, or a needle, or a noose.
If that's really what Jesus would do, then I'm glad I'm not a Christian.
Falkenberg finds someone who acknowledges the inherent political cowardice reality:
"My sense is that the reason, not just Texas, but other states have been enacting statutes more and more like this is because politicians are afraid to vote against them," said Steven Goode, a law professor at the University of Texas.
"They don't want the next attack ad to be one where they are criticized for voting against someone's ability to protect themselves in their home."
"In a calmer and less politicized environment we might have different laws," Goode said. "But campaign ads don't allow for particularly nuanced discussions of issue."
Let's bottom-line it.
Judge Keller needs to resign, or be impeached. Joe Horn needs to be arrested and charged with murder in the first, so that a jury of his "peers" can determine his guilt or innocence. I'm convinced he'll be just as safe following the verdict as he is today -- certainly so if he is tried in Harris County. That's how justice is supposed to work, after all.
Time again to show some love for the best posts from the members of the Texas Progressive Alliance from the preceding week, brought to you once again by Vince at Capitol Annex. I get to bat leadoff this week:
Diarist Scott Cobb at Texas Kaos updates on the growing movement to hold rogue judge Sharon Keller accountable for her callous disregard for the responsibility of the Court of Criminal Appeals, while she displays her intoxication with its power.
State senator Craig Estes, Senate District 30, was given numerous examples of Texas Railroad Commission malpractice, negligence, incompetence and cronyism at his recent town hall meeting in Wise County. TXsharon at Bluedaze asks: Will Senator Estes Investigate the RRC's Malpractice?
Adam at Three Wise Men looks into the future to give us his expert opinion on the 2010 Texas gubernatorial race.
Muse vs. state senator Kevin Eltife. A whole lotta safe sex going on, or should the the state of Texas get involved in adults getting free condoms on campus?
Think arbitration is fair? Think again. John Coby at Bay Area Houston notes that the bottom line from the data is clear. In the nearly 20,000 cases where NAF [National Arbitration Forum] reached a decision, First USA prevailed in an astonishing 99.6 percent of cases.
