"And For Your Last Meal, You'll Have A Choice Between The Fried Baloney Sandwich, And The Spam Enchilada."

Citing a complaint from State Senator John Whitmire (D., Harris County), the Texas Department of Corrections has announced it will stop offering condemned inmates the "inappropriate" luxury of choosing their last meal.


Prison officials halted the practice Thursday after a state senator complained about the last meal served to Lawrence Russell Brewer, a white supremacist who was executed on Wednesday for chaining a black man, James Byrd Jr., 49, to the back of his pickup truck and dragging him down a bumpy country road to his death a decade ago.

Brewer requested two chicken fried steaks, a triple-meat bacon cheeseburger, fried okra, a pound of barbecue, three fajitas, a meat lover's pizza, a pint of ice cream and a slab of peanut butter fudge with crushed peanuts. Prison officials said Brewer didn't eat any of it.

I'll bet they had a Texas-sized feast in the prison guards' break room that night.

In its way Whitmire's complaint makes sense.  It does appear that some condemned men as a final, and pathetic, blow against the State that's about to terminate their lives, order ridiculously large and varied meals they have no intention of eating.  So perhaps it makes sense, from a petty penny-pincher's perspective, to end such nonsense.  "You'll have corned beef hash, and like it!"

But even in a State which fervently accepts the idea that lethal injection is an appropriate penalty for murder, there's something especially cruel and unusual in Whitmire's demand that the old custom, which dates back to Roman times, be abolished even for inmates who don't abuse the "privilege" of a last meal.   The death penalty is supposed to be civilization's response to those who commit the ultimate crime, and it's supposed to be carried out in a humane fashion.  I'm not about to say that by making execution harder than it already is, by denying the condemned man even this little luxury, we show ourselves to be just as cruel as the murderer.  We simply show ourselves to be petty, and mean.

John Whitmire is one mean son of a bitch.

Italy Exists To Make Me Thankful For Fair Prosecutors … Like Mike Nifong

Seven Italian seismologists are facing manslaughter charges, for failure to predict an earthquake.

Victoria University Geophysics Professor Euan Smith says a conviction would be “outrageous and unjust”, and earthquake prediction isn't possible to that degree of accuracy.

No, it would be business as usual in Italy, where members of the government encourage hooligans to throw bombs at disfavored minorities, while still higher officials molest young girls with impunity.

Speaking of which, Amanda Knox is undergoing a retrial despite the conclusion of every non-Italian expert to have reviewed her case that the forensic evidence, which is the only thing tying her to the murder of Meredith Kercher, "fell below international standards".   To put it mildly.

We're hard on American prosecutors and police here, and justly so. But it's good now and then, with a little help from our friends abroad, to keep things in perspective.

I Show You State's Exhibit 4, Which Is A Photo Of A Sign Reading "Warning: This House Is Protected By CHUCK NORRIS!"

I suppose that explains why Maricopa County Sheriff Joe Arpaio chose to raid the home of Jesus Llovara, an unarmed animal cruelty suspect, using a tank.

And Steven Seagal.

Neighbor Debra Ross was so worried she called 911 and went outside where a nearby home had its windows blown out, was crawling with dozens of SWAT members in full gear, armored vehicles and a bomb robot.

“When the tank came in and pushed the wall over and you see what's in there, and all it is, is a bunch of chickens,” Ross said.

In other words, the taxpayers of Maricopa County paid thousands of dollars, Jesus Llovara and his neighbors were threatened with lethal force, and all Joe Arpaio got in return was chicken feed.

That and publicity:

[Llovara's defense attorney Robert] Campus said he believes the entire scene was basically a stage, to help actor Steven Seagal’s TV show, “Lawman.”

Seagal was riding in the tank.

No doubt because, although Llovara had only a misdemeanor record and owned no weapons, chickens are dangerous birds.

Of course, those who are concerned about animal cruelty can rest easy: All of Llovara's chickens were euthanized on the spot, thanks to Joe Arpaio and Steven Seagal.

Trust In The Devil

Conservatives, we are told, oppose big government and mistrust government in general. Liberals, on the other hand, love them some big government.

Given a sufficiently generic and uncritical definition of "conservative" and "liberal", that might be true — on some issues. "Conservatives" definitely tend to oppose government intrusion into the sphere of economic activity, whereas "liberals" urge and welcome it.

But here's the grotesque irony: when you stop talking about business — about money — and start talking about blowing shit up, putting people in jail, and executing them, the opposite seems to be true. The mainstream American voices generally identified as "conservative" tell us we must trust the government when it decides which enemies of the state to lock up (whether they are suspected terrorists or accused criminals), and tell us that insisting upon some semblance of due process for such people puts critics on the side of terrorists and criminals. People who are extremely skeptical about the government's right and competence to regulate, say, the amount of rat feces in breakfast cereal suddenly become the government's biggest boosters when the question becomes whether the government has the right and the competence to jail and execute a man accused of murder.

I submit that this is breathtakingly irrational (as is the belief of "liberals" that the government can't be trusted to run the criminal justice or military spheres, but can be trusted to regulate every element of our economic lives). Prosecutors, cops, and military commanders are not some different species than IRS agents and regulators and city councilmen. They are all human: broken, fallible, subject to the insidious lures of power and the immense pressures of the culture in which they find themselves. All of them – any person who comes to wield the authority of the state against us — should be viewed with a healthy skepticism.

But that's just not our culture. Ask anyone who has ever tried to have a conversation with the average citizen about the presumption of innocence. Ask any defense lawyer who, during voir dire, has ever asked prospective jurors whether they think that the guy probably did something if he's sitting there at the defense table.

Ask Anthony Graves.

Anthony Graves spent 18 years in prison in Texas because of prosecutorial misconduct. Mark Bennett has been documenting the story admirably; read his work and follow his links to the searing Texas Monthly story about the case.

Anthony Graves was accused of a horrific mass murder. He was accused despite an utter lack of physical evidence: rather, he was accused based on the uncorroborated word of a man who admitted to participating in the murder, and based upon an expert's opinion that Graves' knife, among many other knives, was "consistent" with the weapon used in the killings. Graves was tried and convicted despite the fact that the actual murderer — Robert Carter, Graves' accuser — recanted and admitted that Graves had nothing to do with it. You'd think that would matter to a jury. Perhaps it would have — but multiple courts found that prosecutor Charles Sebesta didn't disclose that his star witness, the only witness establishing that Graves had anything to do with the murder, had recanted and exonerated Graves, then flip-flopped again in time to testify against him. The actual murderer, Robert Carter, went to his execution declaring that Graves was innocent. Yet Texas courts rejected Graves' appeals. It took the United States Court of Appeals for the Fifth Circuit to reverse the conviction. This week, the special prosecutor assigned to the matter dismissed charges against Graves, and he walked free after 18 years of incarceration.

Carter was patently a killer and a liar, uncorroborated by relevant evidence. But the jury bought his story — because the government told them to, and when the government wears the prosecutor's hat, people trust it. The proposition that the government's concealment of Carter's recantation was irrelevant is facially ridiculous — yet Texas courts bought it, because judges are people too, and when the government wears the prosecutor's hat, people trust it. Prosecutor Charles Sebesta — who took out an advertisement in the paper defending the conviction — still has his supporters, and many will say that this result is an example of clever lawyers getting criminals off on a "technicality" — because the government accused Graves of a crime, and when the government wears the prosecutor's hat, people trust it. I suspect that if you said to many of those people "when the government decides how much taxes you should pay, or how you should run your business, or what kind of health care plan you ought to have, you should trust the government," those people would react with disgust, seeing that statement as morally treasonous and displaying a canine level of devotion to the state. But tell them that defense lawyers spin bullshit to get the guilty off the hook, and they'll nod sagely and agree. It's a cultural thing. Some people identify more with folks who like to shoot dogs, and some people identify more with folks who like to tell you that you can't buy dogs.

Giving the government the power to do things we like tends to give the government the power to do things we don't like. In a perfect world, conservatives would see that reposing uncritical trust in prosecutors and cops ultimately promotes the government's power to regulate their businesses and their health care. Liberals would see that trusting regulators and bureaucrats increases the government's power to jail citizens upon flimsy evidence. Maybe one day more people will meet in the middle and recognize that the appropriate stance of an informed citizen towards all elements of the government is vigilance, skepticism, and firm support of individual rights against the state. Perhaps more people will agree that the correct response to any government attempt to control the individual is to question: "What evidence do you have to support this? Is it really believable? Can it be trusted? Is it enough?"

But I'm not holding my breath.

Wanted: Less Honesty, More Sensitivity, In The United States Senate

Weld County, Colorado District Attorney Ken Buck is drawing fire for his insensitivity in refusing to prosecute a man who probably didn't commit a crime:

When Weld County District Attorney Ken Buck refused to prosecute a rape case five years ago, he probably had no idea that anyone beyond a small circle of people would care. …

The victim, a Weld County rape awareness advocate, admitted she invited her ex-boyfriend over, and admitted that she got drunk with him, and admitted that they had sex, which she was unwelcome as she, in her stumbling drunkenness, as she passed in and out of consciousness during the act, said she said "No" to.

In explaining why he wouldn't prosecute the case to the victim, Buck, who's now running for U.S. Senate against Michael Bennet, the man who did more than any other to destroy the Denver Public Schools, explained that a Weld County jury, charged with finding guilt beyond a reasonable doubt, would likely conclude that this was a case of "Buyer's Remorse."  Meaning that she invited her ex over, they had sex, and she felt bad about it in the morning.  So, being a rape victims' advocate, she called the police to arrange a vindictive prosecution, which, being a rape victims' advocate, she knew can be easily arranged.

A frank expression of the case.   The complaint against Buck is that he was honest.  That's precisely what a conscientious jury would conclude, by a reasonable doubt, might have happened.

Buck may be honest, but he's a troglodyte.  We can't have Senators who are honest about their beliefs.  It's wrong to say such a thing to a woman, even one who knows better than most how the law works.  To tell a woman, whose work revolves around rape, that yes, you may have been stupid to invite your ex-boyfriend, with whom you'd had a sexual relationship, over to your home, then to get so drunk with him that you kept passing in and out of consciousness.  That maybe you should have known better, and maybe, horrid as it seems, even if you're telling the truth, a jury might not buy your story.  (That maybe, and here goes my political career, she should have taken some personal responsibility before opening that second bottle of wine.)

Assuming, of course, that she was telling the truth, and that it wasn't a case of buyer's remorse.  Which is the first thing that pops into MY troglodyte mind when I read this story.

I'll go further, and alienate 99% of our readers:  A woman who invites her ex-boyfriend over to her house, gets him drunk, and gets herself drunk, at night and alone, is asking for it. Especially if she's a rape awareness advocate, who has to know that this is exactly how date rape happens and why it's so damned difficult to prosecute.

Assuming, of course, that it wasn't buyer's remorse.  Only she and the ex know.  Which is precisely what a jury, charged with finding guilt beyond a reasonable doubt, would have concluded in finding the ex not guilty.

And so the rap against Buck is, not that he did his job commendably, refusing to carry a rape prosecution which was a sure loser all the way to the end to burnish his credentials as tough on crime and for political gain. It's that he was frank, and honest.  Or insensitive, which is the way honesty is condemned by scoundrels.

God forbid we have frank, honest people in the Senate, who call it as they see it.  Better that we continue with a legislature that does what's popular, and tells us what we want to hear.  That's what's made America the greatest country in the world, and will keep it the greatest country in the world as we embark on our second American Century.

A Laudable Formula, But It's Missing Some Variables

Missouri to Judges:  Do you have any idea what it costs to put these people in jail?

Judges to Missouri: Actually, we didn't.

When judges here [St. Louis] sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

This may seem a crass question, but why shouldn't the cost of imprisonment be one factor, of many, that judges weigh in their sentences?  It's not as though a second degree murderer is going to get probation, but it is nice to know that a judge might have to think about what it costs to lock up a small time user or seller of marijuana.  After all, someone has to pay for a judge's largesse in handing out active time to non-violent offenders such as drug users.  And the people paying are not judges.  Nor are they the prosecutors who are having absolute conniptions over Missouri's consideration of cost in sentencing.

[C]ritics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime.

“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.

The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison.

With all respect due to the honorable Robert P. McCulloch, Mr. McCulloch has not earned an honest dollar since he took over the office of state's attorney for St. Louis County.  I define an "honest dollar" as one voluntarily transferred, by its owner, to another in return for goods or services of perceived value.  All of the dollars Mr. McCulloch earns are involuntarily transferred, by people who fear, for good reason, that if they do not pay taxes they will be imprisoned by someone like Robert P. McCulloch.

I suspect that if the St. Louis County prosecutor's office had to hold a pledge drive, or a bake sale, or a car wash, to pay its bills, Mr. McCulloch's salary would be far lower.  He might have to take an honest job to supplement his pay.

Judges, and prosecutors, do not generate wealth.  They merely subsist on involuntarily transferred wealth generated by others, as do police, prison guards, wardens, public defenders, social workers, probation officers, legislators, and all of the other traditional "stakeholders" in the criminal justice system.

So why shouldn't they consider what it costs others to lock up an offender, versus supervised release?  For that matter, doesn't Robert P. McCulloch, as a public servant charged with husbanding the resources of the citizens of Missouri, make that decision every day?  Do St. Louis county prosecutors go balls to the wall every time some jerk is accused of driving 79 in a 55, or letting a passenger hold an open container of beer, insisting on jail time for petty crimes and misdemeanors?  Of course not.  They husband their own resources, their precious time, because they don't want to try cases until midnight 7 days a week, or to let murderers go because they were busy throwing the book at a 19 year old who tried to get into a bar with a fake ID.

No, the objection to Missouri's novel system is that it's a rabbit hole, and prosecutors know exactly how far down that rabbit hole goes.   If judges are allowed to consider the cost of a prison sentence, the public may as well.  The public should as well.  The public, in post-industrial St. Louis County, might consider exactly what it costs to run the state's version of the war on drugs, and to prosecute other victimless crimes.  God only knows where that could lead.  It could lead to a lot of St. Louis County prosecutors losing their jobs, as St. Louis County voters consider whether their money is better spent on improving the county's abysmal schools than on prisons.

And if judges are to consider the cost of imprisonment, they might be encouraged, openly, to consider other societal costs that they already consider covertly when they're doing their jobs properly.  Like the cost to society of taking a father away from his children for several years over a non-violent offense.   Or whether a dishonest police officer or other public servant costs society more than a dishonest taxpayer (who holds an honest job as I've defined it above).  Horrors!

If we go all the way down the rabbit hole, we could see judges given some actual discretion in sentencing, as opposed to mandatory minimums, structured sentencing, and other appealable guidelines.   It would be just like the 1970s, dope fiends running around in the streets of St. Louis raping white women with only Dirty Harry, the Warriors, and Charles Bronson (whatever the name of his character was), standing between America and anarchy.  And then, as the Russians invade the east coast, the Chinese invade the west coast, and the Cubans invade the south coast, and the Canadians invade the north coast, only the Wolverines! will fight to stave off communism.

Or not.  Maybe, if judges are required to at least think about costs of sentencing, St. Louis County will actually be safer and better governed, with prison time (that is to say, someone's honest dollars) being channeled from victimless crimes to truly violent offenders.

Via Jeffrey Miron, who has a sense of humor rather like my own.

Dead Men Rotting

Audit concludes 230 cases investigated by the North Carolina State Bureau of Investigation were tainted.

The North Carolina justice system shook Wednesday as an audit commissioned by Attorney General Roy Cooper revealed that the State Bureau of Investigation withheld or distorted evidence in more than 200 cases at the expense of potentially innocent men and women.

The full impact of the disclosure will reverberate for years to come as prosecutors and defense attorneys re-examine cases as much as two decades old to figure out whether these errors robbed defendants of justice. Some of the injustices can be addressed as attorneys bring old cases back to court. For others, it's too late: Three of the defendants in botched cases have been executed.

As an example, defendants were routinely given the results of unsophisticated (A, B, O, AB) blood tests, but as a matter of Bureau policy, they were not given the results of more sophisticated tests that might have led to exoneration.  The SBI held onto those results because, well, who needed them anyway?

Of course there's no evidence that any of the three men who've already been executed and whose cases are mentioned in the audit, weren't actually guilty.  We aren't going to be given the findings in their specific cases.  Because they're dead.  What good would clearing a dead man do?  He's still dead.  Finality of judgments is an important procedural value.  The United States Supreme Court has said so.

And anyway, they were guilty of something.  Probably murder, or something like it.  Thanks to the institutional safeguards already in place, we know that no innocent man has been executed since 1977.

And it's not as though most of the defendants involved were convicted of important crimes, like murder.  While the North Carolina State Bureau of Investigation doesn't handle petty crimes, there are plenty of non-capital felonies, which are simply punished by years of imprisonment, that the SBI routinely handles.

But in the words of a great policeman, "There's just … one more thing that's bothering me."

The News & Observer reported this month in a series, "Agents' Secrets," that analysts across the laboratory push past the accepted bounds of science to deliver results pleasing to prosecutors. They are out of step with the larger scientific community and have fought defense attorneys' requests for additional information needed to review the SBI's work. Cooper last month dismissed SBI Director Robin Pendergraft after she struggled to answer questions about SBI cases and policies.

This audit focused only on the SBI's record of handing over exonerative evidence.  The scientific methodology its crime lab employs wasn't the the topic of the audit.  That will have to wait for another day.

Still, they were probably all guilty, of something.

So Many Horror Stories, So Little Time

Things I've wanted to write about this week, but haven't been able to hit.  Fortunately, they've been well handled by other bloggers:

Just thought you'd like to know.

Yet Who Would Have Thought The Old Dog To Have So Much Blood In Him?

If you want a textbook case of what's wrong with the drug war, look no further than Marietta Robinson's bathroom.

Full disclosure:  I take everything Ms. Robinson has to say on faith.  Why?  Because Marietta Robinson has never lied to me.

Marietta Robinson, to my knowledge, has never invaded a 62 year old lady's home, looking for someone who doesn't live there, and shot a 13 year old dog which had been placed out of harm's way for his own protection.

Marietta Robinson has never described the dogs she didn't shoot as "pit bulls," because she doesn't shoot dogs, and even if she does, they aren't pit bulls.

Marietta Robinson has never used her victim's water fountain to wash the blood off her hands after casually firing eight shots into that victim's pet.

Marietta Robinson has never tried to fob off fortune cookie wrappers as glassine bags containing drug residue.

All of this, on the other hand, is Standard Operating Procedure, Business As Usual, in the War on Drugs. Of course, Marietta Robinson is lucky to be alive, much less not arrested because the fortune cookie wrappers didn't actually contain any drugs, so she should shut up and stop complaining.

Out! Out! Damned Spot!  Oh, I'm sorry.  The dog's name was Wrinkles.

I, on the other hand, don't have to shut up.  This could never happen to me. I'm a white male lawyer of good family and reputation, not an old black lady.  So I'll say it.

Everything about the drug war is a miserable failure.  Millions of otherwise productive citizens languish in the criminal justice system, while drugs continue to circulate, making billionaires of the criminals who control the trade.  That's a problem of policy, not the fault of the police, who are merely following orders.

But it's also a problem of execution, and that's the problem with the people who are just following orders.  Because it takes a special sort of person, the sort of trigger-happy goon who would be drummed out of the military for bloodthirstiness, to want a job that involves home invasions and shooting 13 year old dogs.  We hire the dregs of society, base animals barely better than the dogs they shoot, to enforce our laws.

The fault, dear Marietta Robinson, is not in our stars, but in ourselves.  We vote for the people who retain and expand these laws.  We pass bonds to pay for more prisons, and more thugs in uniform.

And until we do something about it, it will continue.  It just won't happen to people like us.

Everything I Know About The Police I Learned From Raymond Chandler

Or was it James Ellroy?  It was definitely James Ellroy.

A Los Angeles County sheriff's detective is the subject of an internal investigation looking into accusations that he had an affair with a woman whose husband he had investigated and helped prosecute for allegedly threatening her.

The department opened an investigation into Det. Phillip Solano in April after the allegations were brought forth by the husband, Alberto Gutierrez. Solano, who had been assigned to the City of Industry station, is on administrative duty for now.

The facts, as alleged by Alberto Gutierrez in a Section 1983 suit filed in the Central District of California, would be that Detective Solano carried on an affair with Gutierrez's wife while investigating and serving as a prosecuting witness for charges of stalking and domestic violence.  According to Gutierrez, Solano cooked up the charges to help the wife obtain a restraining order and full custody of Gutierrez's daughters.

Gutierrez only learned of the affair when his defense attorney's investigator turned up a Facebook friendship between the wife and Solano.

Now this is really "inside baseball" stuff, but for you non-lawyers out there, Facebook is not the typical means by which the police maintain contact with crime victims.  At least not in the United States.

And again, I apologize for the boring monograph on police procedure, but typically the police don't exchange expressions of romantic desire, love, "I miss you," or the like with witnesses.  No, usually the police confine themselves to factual matters, such as asking questions about where the incident took place, the identity of the assailant, the names of other witnesses, whether a weapon was used, and such things.

Evidently this breach of police procedure, which is to say Facebook friendship and other evidence of a romantic relationship between the complaining witness and the investigating officer, was enough to convince the judge presiding over Gutierrez's criminal trial, over a year after charges were filed, to dismiss the case.

We lawyers call this a "technicality."

Anyway, Gutierrez alleges that the relationship was common knowledge in Solano's division of the Los Angeles County Sheriff's Department, and that Solano's superiors allowed him to stay on the case, prosecuting his lover's ex-husband, while conducting the affair.  That the Sheriff's office turned a blind eye while Detective Solano used his office and power to send his lover's ex-husband to prison.

The Los Angeles County Sheriff's Department, of course, calls Gutierrez's charges against Solano "ridiculous" and "unfounded," even as it concedes its Internal Affairs unit is investigating Solano, and that the Detective has been transferred from the field to administrative duty.  Which is to say, the Sheriff doesn't know the facts either, but still denies everything.

We lawyers call this "standard procedure."  Laypeople, as opposed to lawyers, might call it "bullshit."

Via Radley Balko