February 7, 2014
Texas Grand Jury Declines to Indict Pot Grower Who Shot and Killed a Cop During an Early-Morning Raid

Surprising news:

This week a Texas grand jury declined to indict a marijuana grower for shooting and killing a sheriff’s deputy who burst into his home in the early morning to execute a search warrant. Henry Goedrich Magee, who was indicted on drug and weapon charges (the latter only because he was growing marijuana), said he believed Burleson County Sgt. Adam Sowders was a burglar. “This was a terrible tragedy that a deputy sheriff was killed, but Hank Magee believed that he and his pregnant girlfriend were being robbed,” Magee’s lawyer, Dick DeGuerin, told A.P. “He did what a lot of people would have done. He defended himself and his girlfriend and his home.”

DeGuerin, a well-known defense attorney who has been practicing for half a century, said “he could not immediately remember another example of a Texas grand jury declining to indict a defendant in the death of a law enforcement officer.” That sort of outcome is rare not just in Texas but throughout the country, since people who shoot cops invading their homes usually do not get the same benefit of the doubt as cops do when the roles are reversed. (Just ask Cory Maye.)

Rare indeed.  This is a big win for civil liberties advocates of every stripe.  While I don’t relish the thought of police officers being shot to death, it is no crime for a person that genuinely and reasonably fears for their life to defend themselves using deadly force.  It is not the homeowner’s fault that he reasonably feared for his life when his door was busted down in the middle of the night by armed men shouting at the top of their lungs.

This is a perfect example of why these types of drug raids are dangerous to everyone involved.  Police frequently execute these raids in the middle of the night, often using no-knock warrants when people are asleep, startling the inhabitants and leading them to believe that their house is being invaded by an intruder.  This creates a low-information/high-stress environment where tragic consequences are entirely predictable.  These raids are completely unnecessary in most cases where they are used, and they put everyone involved—police officers and home-owners alike— in unnecessary danger.  

July 2, 2013
Misrepresenting Women On Abortion

Kirsten Powers is not happy about the support garnered by Wendy Davis for her opposition to a recent Texas bill that would’ve banned abortion past 20 weeks.  

Wendy Davis has achieved the dubious victory of maintaining a very dark status quo. Texas women will still be able to abort a healthy baby up to the 26th week of pregnancy for any reason,as the current law allows.

According to the Parents Connect website, if you are in the 25th week of your pregnancy, “Get ready for pat-a-cake! Baby’s hands are now fully developed and he spends most of his awake time groping around in the darkness of your uterus. Brain and nerve endings are developed enough now so that your baby can feel the sensation of touch.” Let’s be clear: Davis has been called a hero for trying to block a bill that would make aborting this baby illegal.

And rightly so, for reasons I’ll get to in a minute.  Powers continues by citing statistics that indicate the majority of Americans don’t “stand with Wendy” either:

According to a June National Journal poll, 50 percent of women support, and 43 percent oppose, a ban on abortion after 20 weeks, except in cases of rape and incest.

One can assume I am also not the only woman in America who is really tiring of the Wendys of the world claiming to represent “women’s rights” in their quest to mainstream a medical procedure—elective late-term abortion—that most of the civilized world finds barbaric and abhorrent. In many European countries, you can’t get an abortion past 12 weeks, except in narrow circumstances. Gallup reported in January that 80 percent of Americans think abortion should be illegal in the third trimester, and 64 percent think it should be illegal in the second trimester.

These statistics are not all that compelling.  The majority of Americans, at one point or another, have supported policies that turned out to be morally abhorrent when judged by the standards of later generations.  Anti-miscegenation laws come to mind.  Sodomy laws that were selectively enforced against gays.  The Death Penalty continues to be supported by a majority of Americans, despite being abandoned in the rest of the civilized world.  In other words, these statistics offer far less support for Powers’ argument than she thinks.  Just because the majority of people agree with your point of view at a particular time and place does not mean it is a morally “correct” point of view.

Powers continues:

If the majority of Americans oppose elective late-term abortion, why do we have Davis complaining to CBS’s Bob Schieffer that the male politicians who are championing the late-term abortion ban are “bullying women”? Maybe it’s she who is bullying the rest of us into supporting a view that is mocked by scientific advancement; namely 3-D sonograms. Maybe we should be thankful for the men and wonder what is wrong with the women who think protecting the right to abort your baby for any reason up to the 26th week is a “human right.”

Nothing is wrong with those women, of course.  Many of them are simply familiar with facts that Powers has neglected to mention.

First, Powers’ claim that her view is backed by “scientific advancement” is a little absurd when, as I’ve stated elsewhere, you take into account the fact that the generally-agreed-upon point of viability for a fetus is around 24 weeks.  And even at that point, “the incidence of disabilities remains high.”  Neonatologists generally will not even provide intensive, life-saving care to a fetus that is born prior to 23 weeks because it is unlikely that the child will survive even with the aid of medical attention.

Second, the statistics that Powers’ cites are misleading.  I imagine that many of the poll respondents who opposed elective late-term abortions opposed them under the assumption that women seeking a medically necessary abortion will be able to obtain one.  Yet one wonders how the poll results would change if respondents were asked a different set of questions.  

For example, how many people would support a ban on elective late term abortions if they knew that doctors might refuse to perform legitimate abortions out of fear that they’ll be scrutinized (perhaps illegitimately) by law enforcement?  That’s essentially what has happened in states like Mississippi, where extreme restrictions on access to abortion have left most of the state without access to an abortion provider.

And what if poll respondents were told about the "elective abortion" of Danielle Deaver, a Nebraska woman who, at 22 weeks, was forced to watch her premature child suffocate as a result of Nebraska’s misguided “fetal pain” law:

Deaver, 34, and her husband planned the pregnancy and wanted a second child, she said.

Their dreams ended tragically when they learned, shortly before the premature birth, that the pregnancy could not go to term and that the fetus had virtually no chance to survive. She was in her 22nd week of pregnancy when her water broke…

…Doctors said there was less than a 10 percent chance the fetus would have a heartbeat and the capacity to breathe at birth. If it lived, there was perhaps a 2 percent chance that it  ever would be able function on the most basic level.

After consulting with doctors, the Deavers decided it would be more humane to terminate the pregnancy than to allow the child to be born, merely to suffer for a few brief moments before dying after birth.  Nebraska’s anti-abortion law, however, prevented that from happening:

…After consulting attorneys, doctors told Deaver and her husband that the Nebraska law prohibited an abortion in their case. She had to wait, give birth, and watch the infant die.

Nebraska’s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come.

And that’s what happened. The one-pound, ten-ounce girl, Elizabeth, was born December 8th. Deaver and husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later.

This is what happens when you place the government between women and the decision to abort a child at any point during the pregnancy.  Kirsten Powers and the “majority” of Americans who oppose elective late-terms abortions are probably only thinking of situations where a healthy baby is being terminated by a feckless mother, for whom the thought of raising a child is a mere “inconvenience.”  But it’s not always that simple.  Powers et al. apparently can’t conceive of a situation where a doctor might refuse to perform an otherwise legitimate abortion out of fear of being subject to scrutiny by law enforcement.  Or a situation where the supposedly “elective” nature of an abortion forces a mother and father to watch their premature child die the second it is born, like Danielle Deaver and her husband.

No abortion law, no matter how carefully drafted, can possibly account for every situation in which a woman who carries a pregnancy past 20 weeks might have a legitimate reason to seek an abortion.  Medical science is not exact, and situations always arise where the risk of death or serious injury—to either mother or fetus—is nebulous enough to make doctors hesitant.  Furthermore, not every pregnancy complication is discovered prior to 20 weeks of gestation.  To assume that this cut-off point is somehow appropriate or “backed by scientific advancement” is ludicrous.  

Furthermore, Powers completely fails to address the ethical calculus of her argument.  Even with an exception for the life and health of the mother, how high must a woman’s risk of death or serious injury be before she is allowed to abort a child past 20 weeks?  50%?  25%?  5%?  1%?  The Texas law opposed by Wendy Davis does not say (nor do most laws like it).  

More importantly, what gives Powers the right to decide the above question on someone else’s behalf?  Powers has no more moral right to decide what the appropriate level of risk for death or serious injury in pregnancy is than she has the ethical right to force someone to stand on railroad tracks while a train is coming through. In the latter case, we certainly would not say that it matters whether the chances of a train coming are 50%, 25%, 5%, or 1%.

Were all of these things made plain to the poll respondents mentioned by Powers, I imagine the numbers would look a little differently.  Furthermore, people who oppose abortion restrictions past 20 weeks are not interested in making 100% elective abortions a “human right.”  They are interested in protecting the lives of women, and furthermore, in protecting the right of doctors and parents to determine for themselves when it is appropriate to end a pregnancy without the risk of a police officer showing up at their door, or being forced by the Government to carry a non-viable pregnancy to term.  

In short, Powers is misrepresenting women, and misrepresenting Wendy Davis’s supporters.  She’s entitled to her beliefs, of course.  But she is not entitled to her own facts.  And in this case, she’s left them out in spades.

June 26, 2013
Texas Sized Filibusters


It’s always fun waking up and reading various opinions about Texas politics splashed across the entire media spectrum, particularly discussions about the rules. Texas filibusters are nothing like what you now see in Congress, and more like the fictional Mr. Smith’s filibuster. The longest filibuster was 43 hours. You can read more about the Senate’s rules and filibusters here.

June 26, 2013
Thoughts On The Wendy Davis Filibuster

(Edited for clarity and Rebloggable by Request)

My thoughts on the Wendy Davis filibuster are similar to Matt Yglesias’s:

I absolutely #standwithwendy on the merits, but the process where the side with the most votes wins still makes a lot of sense.

I think Yglesias’s concern is with the abusive nature of the filibuster.  The original justification for the filibuster is that it gives elected officials the ability to extend debate on a bill, in the hopes that a grand speech might help them convince their peers to vote a certain way.  In practice, it’s usually just a delaying tactic.  And if the Texas legislature’s rules on filibustering are anything like those in Congress, then a supermajority vote is required to end the filibuster.  

In this case, a piece of legislation died because one person was willing to stand up and talk forever.  On a systemic level, I’m not sure that’s the best way to get things done in a democracy.

The important thing to remember is that the filibuster is a procedural maneuver, and it is neutral by itself.  It can be used for “good or evil,” as it were.  In Wendy Davis’s case, I’m obviously thrilled to see that anti-abortion legislation in Texas was killed.  On the other hand, a pro-life senator could easily use this same tactic in the future to shoot down a bill that expands abortion rights.  The filibuster is a double-edged sword in that way.

With all that being said: in a world where filibusters exist, I have no problem with elected officials using it as a tool to represent the interests of their constituents.  I’m also a lot more comfortable with the old-fashioned “stand up and talk” filibuster than I am with the “pre-emptive” filibuster that dominates Congress.  An old-fashioned filibuster is physically exhausting, and it’s one of the few times you can see a representative earnestly sacrificing themselves for their constituency.  It would be stupid to have a legislative tool available and expect representatives not to use it to save their constituents from bad legislation.

Still, it can work both ways.  And in an ideal world, I think there needs to be limits to what a filibuster can accomplish.  An intransigent minority shouldn’t be able to prevent a duly elected majority from passing legislation in perpetuo just by threatening to filibuster.  So I’d like to see a world in which filibusters play less of a role in the legislative process.  Maybe then Congress might actually be able to vote on some federal judges.

June 26, 2013

zachvaughn said: Saw your post on last night's filibuster. In Texas, the senator must stay on topic or the filibuster ends. They also cannot leave their desk or receive any assistance. Many of the points of order called last night were based on these rules in attempts to end the filibuster. Obviously those points were not upheld. However, if the Republicans had played their cards right in the first place, this filibuster never could have happened.

(Regarding this post).  Thanks for the info.  I also saw that there was some shenanigans towards the end of the vote, e.g., Republicans tried to alter the time-stamp of the voice vote to make it appear as if it took place before the midnight deadline.  It’s always interesting to see just how much of an impact procedural strategy plays in the legislative process though.

12:40pm  |   URL: http://tmblr.co/ZMMjnxoE-9uo
Filed under: politics texas 
December 23, 2011
Cracked.com: 5 Lesser Known (Completely Ridiculous) American Civil Wars

[T]hrough most of U.S. history a lot of the states kind of hated each other. This sort of thing can come to a head when the two have to cooperate. Like, for example, if they’re building a bridge to connect them.

So you have the Red River, which provides a natural border between Texas and Oklahoma. Because the two states could hardly work together long enough to build a bridge, several private companies had made a killing on opening their own toll bridges and charging people to cross.

In the late 1920s, the states figured it was time to enter the modern era and start building public bridges people could cross for free. They started buying out the private bridge companies and building their own. In the bleak as hell year of 1931, Texas and Oklahoma, showing a little teamwork, completed the Red River Bridge and prepared to open it.

However, a private toll bridge owner claimed that Texas had failed to buy out his rights and got a legal injunction against the bridge. Texas Governor Ross Sterling took that guy’s side and ordered the bridge closed on the Texas end.

Oklahoma Governor “Alfalfa Bill” Murray, figuring there’s no such thing as an insane overreaction in those circumstances, declared martial law. He sent the Oklahoma National Guard in to keep the bridge open and, hilariously, showed up there himself, armed with a revolver.

Meanwhile, Governor Sterling sent in the Texas Rangers to enforce the bridge closure order.

Back on the Oklahoma side, Governor Murray decided the situation wasn’t anywhere near stupid enough yet, so he increased the dick move quotient in the skirmish by 75 percent and ordered the Oklahoma National Guard to block and demolish the road north of the private toll bridge, rendering the area impassable.

Then, he expanded his martial law order to both sides of the Red River bridge. And that was how Oklahoma National Guardsman wound up occupying land in Texas.

Eventually, two court orders ended the standoff. The blockade of the north entrance to the private toll bridge was stopped by an Oklahoma court and a federal judge in Texas rescinded the injunction against the free bridge.

The story had made national and international headlines, reaching as far as Europe where it made Hitler believe that the United States was more divided and weaker than it actually was. Texas retained custody of the “Don’t Mess With Texas” motto, and Oklahoma optioned its rights to become a terrible musical. Everybody won.

11:53pm  |   URL: http://tmblr.co/ZMMjnxDifFbX
Filed under: politics texas oklahoma 
November 7, 2011

Brandi Grissom, a reporter for The Texas Tribune, reports that the Texas Court of Criminal Appeals has granted a stay of execution to Hank Skinner so that DNA testing can be done.

Justice may yet be done.


Brandi Grissom, a reporter for The Texas Tribune, reports that the Texas Court of Criminal Appeals has granted a stay of execution to Hank Skinner so that DNA testing can be done.

Justice may yet be done.

October 21, 2011
Texas Bar Association Investigates Prosecutorial Misconduct In Wrongful Conviction Of Michael Morton

Chuck Lindell at the Austin Statesman reports today that the State Bar is investigation prosecutor misconduct allegation stemming from the Michael Morton exoneration. The story opens:

The State Bar of Texas is investigating actions taken by trial prosecutors in the 1987 wrongful conviction of Michael Morton, an official said Wednesday.

The bar took the rare step of acknowledging an ongoing disciplinary investigation because of the attention Morton’s case has received since mid-August, when his lawyers announced that DNA tests showed another man killed his wife, Christine, in their Williamson County home.

Morton was freed Oct. 4 after serving almost 25 years in prison, and the state’s highest criminal court later proclaimed his innocence and tossed out his murder conviction and life sentence.

"We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it," Maureen Ray, with the bar’s office of chief disciplinary counsel, said Wednesday.

Also Wednesday, the former district attorney who prosecuted Morton, Ken Anderson, filed a motion to quash a subpoena forcing him to testify under oath about allegations that he improperly hid evidence favorable to Morton.

Morton’s lawyers are set to depose Anderson, now a district judge in Georgetown, on Oct. 26. However, through his attorney Mark Dietz, Anderson said District Judge Sid Harle lacked the jurisdiction to issue the subpoena and that he was not provided 10-day notice as required by court procedures.
Who is surprised that Judge Anderson doesn’t want to testify under oath about why exculpatory evidence wasn’t turned over to the defense? I still doubt that the State Bar will discipline any prosecutor in the case, because, as Lindell reports at the end of the story, they almost never do:
The state bar rarely investigates prosecutors for cases of alleged misconduct, several lawyers involved in the grievance process said Wednesday. One problem is the lack of credible witnesses because complaints typically come from successfully prosecuted inmates.

It is also “very, very rare” for the bar to follow through with sanctions against prosecutors, said Chuck Herring, an Austin lawyer who specializes in lawyer discipline cases.

"In over 25 years doing this area of law practice, I have never represented a prosecutor," Herring said. "I can remember only a very few instances of reports of prosecutors being disciplined for any violation of the rules."

One such case came in 2005, when the bar sanctioned former Swisher County District Attorney Terry McEachern for hiding information about a paid informant’s criminal past to prosecute 46 people in a 1999 Tulia drug sting. McEachern was placed on a two-year probation that allowed him to continue practicing law.
The McEachern case is the one always mentioned, but that’s the only example I know of in the last decade where a Texas prosecutor was disciplined by the state bar for hiding so-called Brady material. To clarify, though, McEachern didn’t hide a “paid informant’s criminal past,” it was actually the criminal history of an undercover gypsy cop named Tom Coleman that he failed to reveal to the defense. Still, plenty of other cases have arisen where exculpatory evidence was withheld, including in capital cases, and the state bar tends to ignore them all.

Maybe, like McEachern’s case, things will be different this time because of intense media scrutiny. But I’d feel more confident that the profession was capable of governing itself if it didn’t take national media attention to prod them into action when Brady violations occur in criminal cases.

October 11, 2011
"I have no idea if Hank Skinner is guilty. Neither does the state of Texas. The difference [between us] is that I and anyone with a lick of conscience would prefer we find out before the man is put to death."

Radley Balko, “Hank Skinner Execution Less Than A Month Away”

October 4, 2011
"He’s eager to be released, as you can imagine, after all these years. He’s kind of going to be Rip Van Winkle — he’s never held a cell phone; Reagan was president when he went in. There’s going to be a lot of adjustments, but he’ll be fine."

Houston lawyer John Raley, who works with the Innocence Project • Discussing the imminent release of convicted murderer Michael Morton, who is expected to be released today after DNA evidence exonerated him from the crime of killing his wife in 1986. DNA evidence implicates a convicted felon who has also been tied to a similar 1988 murder. Morton, meanwhile, was convicted on circumstantial evidence and otherwise had no history of violence. Enjoy your freedom, Michael — they have these things called iPhones now, and they’re awesome. (thanks Michael Cote for the tip) source (viafollow)

Oh look.  Another wrongfully convicted inmate.  Surely giving a person a trial by jury of their peers a guaranteed appeal will root out the innocent, won’t it?  *queue hysterical laughter*

It’s time we come to realize that the criminal justice system, while necessary, is also flawed.  Even the burden of proof Beyond a Reasonable Doubt does not keep the innocent free.  Harsh sentencing regimes don’t deter crime.  They merely punish the innocent.

Proponents of harsh sentences for heinous crimes might ask: shouldn’t we punish people in proportion to their evil acts if found guilty of an awful crime, such as murder?

Take it away, Justice Harlan:

[I]n a judicial proceeding in which there is a dispute about the facts of some earlier event, the fact-finder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief-the degree to which a fact-finder is convinced that a given act actually occurred-can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.
…[but] In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff’s favor. The criminal analogue would be the acquittal of a guilty man. 
In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty.  As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513 , 525-526, 1341- 1342 (1958):
 …[Our society has made] a fundamental value determination…that it is far worse to convict an innocent man than to let a guilty man go free.

EDIT: Shortformblog informs me that that Mr. Mortion received a life sentence and was not sentence to death.  I have amended my remarks accordingly.

(Source: shortformblog)

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