Friday, January 23, 2009

Are You Effing Kidding Me?

Rick Perry has no Goddamn shame. Today he uttered something that I liken directly to Bush's "political capital" claim (after winning by the narrowest margin in history), or his declaration of the end of major combat operations in Iraq (after which violence and American deaths increased).

Now, Perry, whose Trans-Texas Corridor pet project was so controversial and the voice of the people was so ignored that we created new policies for making sure the voices of the people were heard and actually listened to in public hearings, has uttered one of the largest falsehoods of his administration.

Despite years of attempting the single-largest land grab in Texas history, he states that "In Texas we understand the concept of having as a last resort the process of eminent domain to... build our roads..." What a lying bastard.

I wish I had more to say on this subject other than that I view this as the single most deceptive thing a governor of Texas has ever said. This Orewllian bullshit would make George Bush proud.

I never thought I'd say this, but thank God Kay Bailey is running for Governor. It's the only reason Perry will start to listen to the people and I guarantee it's the only reason he canceled parts of the TTC.

CPS is Stealing Fewer Kids

The impetus behind this reduced rate of state-sponsored kidnapping has been discussed at length over at Grits for Breakfast, so I won't re-hash it here. And of course, CPS should remove kids in the face of abuse or neglect, but it's still good to know that even the CPS has evidently realized that their arrogance has reached its limit.

That's not to say that they'll behave in the future, but whatever gets them to calm down, even for a little bit, is a good thing.

"We treat all cases the same."

Oh really. Then would the DA's office kindly like to tell me how often they set bail at an embarrassingly low $30,000 for for a damn child rapist who lives right down the street from the victim?

Sure, he's innocent until proven guilty, but so are the black and Hispanic and white ones who just so happen to not be former law enforcement officers.


Note To Self:

If I get arrested for DWI, make sure everyone thinks I'm a white judge.

Because while Driving While Black is enough to get you pulled over and even shot in your own front yard in places like Bellaire, driving 92 in a 65, with open containers and smelling like beer isn't enough to support probable cause after a DWI stop. In Cleburne. If you're white. And a judge.

That kind of makes you wonder about "no refusal" programs. If the goods they had on this judge aren't good enough to get a warrant for blood, how can it be that just declining to take a breathalyzer is?

Thursday, January 22, 2009

Dear Governor Palin:

This is not an attack on your children. So don't necessarily reference this anonymous blogger in your tirade against the press, because I am far from part of the media that could do you any damage. So far I think this is read by only a couple of Democrats that aren't going to vote for you no matter what, and a handful of pissy little assistant district attorneys that will--again, no matter what.

And I'd like to mention that I like the older ladies and like to hunt myself, so if you ever ditch the First Dude just look me up. Uber-Nazi uptight older women in glasses with their hair up are awesome in the sack, I hear.

However. One cannot help but wonder why you think your family shouldn't have been an issue in this past election--or any future one. I know that kids will be kids. Besides, your daughter is attractive and you're a former beauty queen yourself, and now you're the governor, so it's only natural that your daughter would create a target rich environment wherever she went. Can't blame your daughter's husband (can't for the life of me remember his name right now) one bit for wanting to bounce up and down on the governor's daughter. Shoot, I'd like to bounce up and down on the governor myself. You, not Rick Perry. I only make that clarification because I know you're not real smart, and because you probably think being a Democrat makes me gay, but I'm willing to set you straight in person on that one. And oh yeah, because our own little Republican heart throb might be gay. So, let's make sure you know that I'd do you up right.

And I would accept you just as you are. All the imperfections, and flaws, and lack of reading material that would go with a relationship with you, I'd be OK with. You'd even look great, because you still have all of those spiffy clothes you said you were going to give back. They make you look even more uptight, which makes you even sexier.

Except, maybe, there's one thing I couldn't get past: You appear to be a terrible parent. Your teenage daughter gets knocked up, she and her husband-to-be drop out of school, and you think that's OK? And what's more, you think you and your party should be in charge of public policy on things like teen pregnancy? You can't keep your only legal-aged daughter's legs closed, and you think you can keep millions more from doing what she did? On top of that, you want to continue abstinence-only education as the means by which we control our absurd rate of teen pregnancy? How'd that work out for your own family? It didn't? Oh, well, clearly you should continue the practice then, right? Fuck a duck lady, get a clue.

And I won't even get started on how motherly you looked toting Trigg around. Don't worry--I'm one of the people who think he probably really is yours, because you know what one of the leading causes of Down's Syndrome is? OLD LADIES LIKE YOU HAVING BABIES. How utterly stupid and irresponsible it was of you to get pregnant that late in life, knowing what we now know about the consequences. Or has medical science not reached Alaska? Or did you think laying hands on your tummy and praying would make him better? You looked like someone was forcing you to hold an abomination when he was shoved into your hands after the debates, or wherever else it was you were flying while your oldest daughter was riding up and down on the closest high-school drop out back home.

While your attractive, sexually promiscuous, tattooed, high school drop out of a daughter isn't fair game, how you've handled things definitely are. Hell, you went after Obama endlessly for what Jeremiah Wright was saying, and they weren't even related. I know they all look alike to you, but that's just not the same thing.

So, to end this I will just say that I support your candidacy in 2012. Business suits with tight above-the-knee skirts are my favorite, and you look like you've got a lot goin' on beneath that overly-dressed exterior of yours so I can't wait to see you out on the trail. The mute button on my remote still works, so I'm in good shape. Besides, having you on the ticket would pretty much guarantee that a Democrat wins since the only thing you can energize besides the Republican right-wing religious fanatics that you call "the Republican Base" (which is an increasingly smaller group as the literacy rate rises), is the penis of guys like me who dig the older ladies in tight skirts.

See you in three years, dumbass.

Monday, January 19, 2009

It's a Brave New World... Court

First off, you should know that I am tremendously opposed to the World Court, or any authority not found in the Constitution that would seek to try American citizens for crimes. Article III is there for a reason, and no court should have the power to convict an American other than one that is created by the document that established our little experiment in democracy.

But in this particular case, I think we got it wrong, mostly because this guy wasn't an American citizen. We failed to follow even our own treaties by preventing him from having access to his consulate. Now, he's evidently a rapist and a murderer, so I'm all for hanging him high--assuming certain safeguards are on place ensuring his rights, a fair trial, etc.

The problem is that if we don't advise foreign nationals of their right to speak with their consulate, why would other countries advise our citizens overseas of theirs? And as goofy as our justice system can be, I'm much more worried about the system in places like Colombia, Mexico, half of Europe, and oh, the entirety of Africa and Asia.

What were we afraid of? That if his consulate hired an attorney for him (as they have done in other cases, I just can't find the one I'm thinking about right now), that he wouldn't be convicted? In Texas? Didn't work for the defendant in last year's trial, so I can't imagine it would have been any different for this guy.

I cannot imagine why Texas refuses to play by the rules. We endanger not only the convictions that we could have won anyway, but in cases like this they put the security of Americans abroad at risk.

Saturday, January 17, 2009

Outsider Trading

Here's a story I've been following for a while, and I think it's an excellent example of how a person can make shady deals in the open air and no regulatory agency even takes a second look.

Here's how I see this going down:

1. Stock price at $22.00.

2. Fertitta says "I want to buy the whole company, take it private."

3. Stock prices drop, making it easier to buy.

4. Fertitta announces funding deal, stock prices stabilize.

5. Fertitta claims deal wasn't cool, announces that it "falls through."

6. Stock prices drop, making it easier to buy.

7. Fertitta says "hey, whadda ya know, I now have 57% ownership of the company" made possible because stock prices are now at less than a third of what they were when he began the process.

8. Fertitta gets new funding, made possible by the double savings incurred by having to fund only 43% of a buyout because he owns more than ever, and the stock prices are at less than a third of where they were. So he gets what he wants at a fraction of the expense he would have had to under the previous deal.

Neat how that works out, huh?

I'd like to say that I would be boycotting his restaurants because of these shenanigans, but because his restaurants suck, I already avoid them.

Bob Meadours Update

Welp, in a surprise to no one, the officers who shot Bob Meadours over a dozen times were exonerated.

I'm thinking that the lawyer for his family didn't play up the "our officers are trained for this sort of thing" part of the 911 call enough, and the Defendants' argument that the bullet holes in his back "could have been caused" when he turned (after having been shot at least six times in the front?) is pretty damn weak if you ask me. There were four cops there. And they don't remember? Please.

His parents were stoic, and if nothing else a training requirement for handling the mentally ill during incidents like this have been put in place, so hopefully this sort of thing won't happen.

Now if only we could keep them from shooting same people who are laying on the ground in their own yards or in subway stations, we'd be on to something.

Someone else's DNA you say? Eh, no big deal.

This should get interesting.

Admittedly, the guy confessed. And while not all confessions are genuine, the circumstances of his particular confession will have to be investigated before it can be dismissed. He was also seen jumping over the victim's fence the night she was killed, which adds to the evidence against him, although eyewitness identifications (especially at night, across a yard...) can be suspect.

Still, the guy confessed, and I just don't understand how someone not guilty of murder could confess to it. Or why he was sent to death row despite a confession--usually that gets you a plea. I can see confessing to theft to get out of jail time, but murder? Of killing a small, frail, woman?

The guy also sounds like he had a history, and while that makes him suspect it also makes him the perfect person at whom to point the finger.

It will be interesting to see how the state explains the new DNA results and if their theory at trial was that he acted alone this may be just enough evidence for a new trial--or at least it would be if the CCA didn't allow new theories to be brought up on appeal, which they do in cases like this.

Right now the only conclusion that can be made is that there is at least enough evidence to commute his death sentence, if not grant a new trial. I wonder how Rosenthal overlooked his evidence in his "destroy it all before they discover we made a mistake" rampage a while back.

Thursday, January 15, 2009

Death Knell for the Drug War?

Of course not. But there's an interesting article in today's Houston Chronicle about reducing certain charges for minor drug possession, and the charge is being led by a Republican, of all people.

I'm not a fan of completely decriminalizing the drug offenses, but recent trends focusing on treatment as opposed to incarceration are contributing to this movement gaining ground. In addition to not having the jail space for drug offenders, they'll only be back again if we don't do something about it. Besides, it's increasingly expensive to fight Nixon's last remaining war, and folks in possession aren't the ones gunning people down in border towns by the dozens. They do contribute to the market, however, so if we can treat the addiction we can keep them from being both a consumer of drugs and buirden on the jails.

Makes sense to me, and I'm encouraged to see it making more sense to others. I guess you can teach old Republicans new tricks.

Sunday, January 11, 2009

Racial Tension? In Bellaire? You don't say.

Who in the world would have though there would be an issue with racial profiling in Bellaire? Well, besides me in my original post on this subject, these people, for starters. This article details some very specific cases where the Bellaire PD would just drive up to a person and ask them why they were there, for no apparent reason. And that's what bothers me the most--that a person can be walking down the street and a cop asks him why he's there. Who cares? It's a public street. Or how one can drive up to someone and assume he's not the owner of a house in their fair city. Or have a continuing habit of reporting "suspicious cars with stolen plates."

I'm not too impressed with the "stolen meat" couple's story, however, assuming the store owner really did point them out. And I agree that Bellaire's proximity to 610 and other business traffic might throw the demographics of their stops off and that they may actually be in compliance with statutes intended to prevent racial profiling. But, that in no way excuses their continuous pattern of profiling, as evidenced by those in the article--some of whom have multiple incidents to report.

And imagine how many people don't speak up.

I think it would be interesting to require cities with an apparent problem such as Bellaire (as evidenced by racial demographics of their traffic stops differing greatly from their city's demographics) to record not only the race of the people they pull over, but the address as well. That way they could confirm that the proximity to Houston indeed causes their higher incidences of pulling over people of color, because otherwise their claim of proximity is merely anecdotal. They should also be required to record all contacts, because pulling over and asking a guy if the owner of the house on which he's installing Christmas lights is not a traffic stop requiring that the police report it for profiling purposes. Nor is the one where the family was walking down the street.

But they are almost certainly incidents of racial profiling.

Tuesday, January 6, 2009

Sexual Harrassment in MY Courthouse? It's more likely than you think.

You know, I always got along with Judge Kent. I was in front of him several times, even tried a case in his court about six years ago. I was never the target of his his rants (pdf), and he was actually very professional during my trial and all of my hearings over the course of about three years. But I'd always heard about his antics, and even that he was a bit of a philanderer. But hey, I'm a lawyer, so who am I to judge?

It does finally appear, however, that he's getting what's due. Of course he's innocent until proven guilty, and it sounds like he's not going down without a fight. But the allegations are mounting and by all appearances it looks like he's going to spend a couple of years avoiding Bubba in Pound-Me-In-The-Ass prison.

My only real question? Why he hasn't been impeached yet, and continues to draw a salary at taxpayer expense. Yet another case of the legal profession failing to adequately police their own.

Monday, January 5, 2009

Bellaire Shooting Update

Well, I have to admit that I was wondering about how two bullets got in the house after I was questioned in the original Bellaire shooting post. Now, I'm even more confused.

It seems that not only did two of the three bullets fired at Robbie Tolan hit the house, but they were lodged in the damn ceiling of the front porch. So even if Tolan was standing up, and by all accounts he was not, how in the Hell did that happen? I envision some kid using Dirty Harry's .44, with each shot's recoil causing the barrel to climb higher. And it was a .45, but surely a highly trained patron of the donut arts can handle a big boy gun like that.

Most telling, however, is that the bullet that hit Tolan, which is now permanently lodged in his liver, went through his lung first. Now, I've seen tons of CSI episodes, and I can imagine the old one-legged coroner shoving a long, skinny wooden dowel into the wound track to see what path the bullet followed to allow them to see where the bullet came from. And because the lungs are above the liver, where the bullet ended up, it appears that Tolan raised up off of the ground slightly as initially reported. To someone standing up a few feet away, that bullet track makes sense, as he would have fired at him with the bullet angling down though his lung and into his liver.

To me, that says that he was still largely prone and the cop fired one off that surprised even him, causing his next two to stick in the ceiling of the porch above him. So whomever it was that was asking me whether or not I trust the account in the Chronicle, I have to say at this point that it's looking more and more likely that it reported things correctly.

"Don't Worry Ma'am, We're the Police, We're Here to Help..." BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM! BLAM!

After being promised that officers responding to her call for help would be trained to deal with her mentally ill son, Stennie Meadours allows them to come in, whereupon the well-trained officers shoot him 14 times and he's dead within five minutes of their arrival.

Sure, they tried less lethal measures first, including shooting him with a bean bag when he would not come to them. Clearly, that was the wrong way to handle a visibly disturbed person who they know has a history of mental illness. And it clearly made the situation worse.

This case was so bad that even the Law And Order (and at that time far more Republican) Texas Legislature saw the need to deal with these situations differently and passed the Bob Meadours Act, requiring additional training for all officers in how to handle these situations.

Three of the four officers expressed no regret with how things went during the shooting, and of course they were never indicted by Harris County. Big surprise.

Sunday, January 4, 2009

Craddick's Out

Holy crap.

Well, guess my state rep is going to be safe. Damnit. In a last act of spite, Craddick endorses anybody but Straus.

1/5/09 Update: John Smithee (R - Amarillo), throws his hat into the ring. He's promptly endorsed by Craddick (which is something akin to McCain being endorsed by Bush), and is actually fairly popular. His legislative activity from the 80th Legislature is less than impressive, dealing primarily with insurance regulatory issues. And that makes sense, seeing as how he's the chair of various insurance and regulatory committees.

That causes me some concern, however, because insurance companies are the ones who foisted House Bill 4 on us, which went so far as to permit the legislature to make constitutional amendments without having to go through the usual amendment process. It was pushed largely by insurance companies, complaining of various lawsuits preventing them from making enough money, and evidently preventing doctors from practicing their love on women, according to President Bush.

Smithee is also anti-campaign finance reform, preferring not to have to disclose the source of his campaign funds if he does not have to. We do know, however, that 89% of his money comes from the very corporations he is charged with regulating.

2nd 1/5/09 Update: Looks like it's Straus. After looking into Smithee a little bit, I'd say we're in much better shape as a state with a much more moderate Speaker. I guess I can lay down my petty reasons for wanting Craddick to stay in to see what these guys do. Although based on his emphasis on infrastructure in the above article, I'm afraid the TTC's are on for sure. And that could suck.

Saturday, January 3, 2009

Aggie Jailers?

Jail cells that lock from the inside? I think I missed an angle in my post on what Texas can do better in reducing its jail populations--maybe, not make them more comfortable than the prisoners' homes were before they went to jail?

But I think my not looking closely enough at jails who allow inmates to come and go, have recliners in the cells, and have a pharmacy's worth of pills scattered around is understandable. What are we, in California? Who would have expected that? The bed of nails helps keep some semblance of Texas Justice(TM) though. Maybe there's hope for Montague County yet.

Friday, January 2, 2009

Man Fatally Stabbed Over Six Pack of Beer

You know, while I think killing someone over a six pack of beer is pushing it a little bit, the story doesn't tell me which beer it was, so I'll reserve judgment.

I will say, however, that the beers I would kill for don't come in six packs, so my guess is that this was over Tecate or maybe a Budweiser Chelada. But that's cerveza profiling, which is illegal, from what I hear.

Prosecutorial Misconduct

Ever hear of a prosecutor being sanctioned for misconduct? Disbarred or reprimanded for withholding evidence? Me either. I’ve heard about it loads for civil attorneys though. I see sanctions granted against attorneys on an almost daily basis in the civil courthouse over silly discovery disputes, including death penalty sanctions in a case for failure to respond properly to discovery or other shenanigans during the course of litigation. The phrase most often thrown around at these hearings are “we’re not supposed to have trial by ambush or Rambo lawyers anymore”, meaning that everyone is suppose to have full access to the evidence so they can fully and fairly evaluate their cases and either settle or be ready for trial. This applies to the largest multi-million dollar breach of contract case, or the silliest, smallest, B.S. car wreck case.

Why aren’t the same rules followed when a person’s life or liberty is at stake?

Keep in mind that this post was thrown together pretty quickly, and I’m running down rabbit trails already being discussed in one way or another in other Texas blogs in light of a slew of recent exonerations. So I’ll be following up with more research and will of course welcome the knowledge and criticism of others.

One thing that struck me in writing this is that all of the information regarding exonerations and prosecutorial misconduct in specific cases is readily available within minutes. Imagine what a real investigation would turn up…

Since we’re talking about misconduct, let’s start with the Texas Disciplinary Rules of Professional Conduct. While the Rules are intentionally broad and a bit vague, they’re that way to attempt to encompass more acts of misconduct that a very specific set of rules could. The first relevant portion here is Rule 3.09; Special Responsibilities of a Prosecutor, which states in relevant part:

The prosecutor in a criminal case shall:
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Now, the real question appears to be whether or not something negates the guilt of a defendant, and as you can see here, even veteran
prosecutors can have a hard time defining what is and is not evidence that could negate or mitigate the defendant’s guilt. So why leave it up to them? Why not open all files and all evidence? As other prosecutors have stated, taking the Brady question out of their hands only protects them from being accused of wrongdoing and possibly disbarred, so why wouldn’t more of them be in favor of it? My guess is because they have nothing to fear because they’re never disciplined or disbarred in the first place.

And what about Brady? With respect to withholding evidence Brady basically says “don’t do it” and gives certain remedies to the defendant, but what the hell happens to the prosecutor? Nothing. You’d think (and many may argue) that if it happens and is intentional, no district attorney would want someone like that working in their office and would probably fire them, thereby giving ADA’s incentives not to cheat. From sleeping with the judge to hiding evidence, prosecutors have free reign to disclose, or not disclose, whatever they like. If there was any doubt as to whether or not judges protect prosecutors in issues of ethics, the trial judge who was asked to permit discovery related to the affair between Charles Dean Hood’s prosecutor and the judge hearing his case said the discovery could go forward--but set the depositions for a date three days after Hood was to be executed. That irked even the MSM, which reported on the case extensively, no doubt causing that judge to recuse himself and the second judge to permit the depositions to go forward earlier. Hell, here in Harris County we promote those people to District Attorney so their malfeasance can become official policy. And no, Lykos haters, I’m not talking about her—I know she hasn’t tried enough cases for this to be a real threat in any of her cases. Rosenthal was famous for that kind of thing, going so far as to claim that he regularly closed files because he felt Defendant’s aren’t entitled to the information contained in the prosecutor’s files.
Just one other disciplinary rule (8.04) applies to prosecutors alone, and prohibits prosecutors from knowingly violating the Rules in several ways, or engage in dishonest or fraudulent conduct. Now, ostensibly the Rules contain punishment mechanisms for violations. Like I mentioned above civil lawyers are hit with them all the time. The question is, why aren’t prosecutors? They’re state actors with the full power and investigative abilities of a huge government system behind them. From local cops, to sheriffs, to the DPS (including the Rangers where needed), and even their own internal investigators (Harris County has to have over a dozen of them in the DA’s office alone), to crime labs and in-house forensics experts the state can bring an enormous amount of resources to bear on a single defendant. A defendant is lucky to get a court-appointed lawyer and oftentimes doesn’t even get that, much less experts and investigators.

Blogger Scott Henson at Grits for Breakfast has suggested prosecuting for abuse of official capacity under current Texas law. But, that statute generally deals with misuse of property and the statute itself makes reference to “the thing misused.” In fairness, the Grits discussion was about statutory changes that would help prevent Brady violations, and perhaps broadening that statute to encompass acts of omission as well as commission would help. I think the next provision (§39.03) related to Official Oppression is closer to viable, but as a lawyer I can read so many loopholes into that statute that its exceptions will swallow the rule. And all in all, it’s still just a Class A misdemeanor, meaning that a prosecutor can withhold evidence that would prove the actual innocence of a defendant, who has rotted in jail for decades or was even put to death, and the prosecutor is subject only to a misdemeanor conviction. I think we should expect more from our prosecutors than what we currently get, and the only way to get it out of them appears to be with a bigger stick on the punishment side.

Grits also suggested that the statute of limitations should be extended to allow for prosecutions years after the fact. The discovery rule in civil cases (Texas case law is replete with decisions related to the discovery rule so I won’t cite them here, and more than one statute related to limitations has a built-in discovery rule as well. Essentially, if some evidence is inherently not discoverable but is stumbled upon at a later date and the tortious conduct and injury can be objectively verified, the statute of limitations does not begin to run until the discovery is made.), allows for the statute to begin running at the time the injury is discovered. So, perhaps a §1983 claim for infringement of civil rights would be in good shape. Or would it? At least one Texas case, Garcia v. Howard, 904 S.W.2d 941, 944 (Tex. App.--Austin 1991, no writ), held that if a Defendant claims innocence, but is prosecuted and convicted, he cannot use the discovery rule because he knew he was innocent and therefore his innocence was not inherently undiscoverable to him! Are you kidding me? That case even holds that not only is there no relationship requiring disclosure of the potentially exculpatory evidence (a witness who perjured himself), but the relationship between the prosecutors and defendant is the antithesis of a confidential relationship, and therefore no duty disclose certain facts to the defendant exists, thereby rendering fraudulent concealment (and as a result, the discovery rule) inapplicable to any and all claims for wrongful prosecution. At least, I guess, unless you didn’t know you were innocent... To be fair, there is little discussion in Garcia about the knowledge of the police and/or prosecutors regarding the perjured testimony, but nonetheless the decision appears to hold that even if they did, they had no duty. This is clearly contrary to Brady, and it looks like Grits was dead right on this one--in addition to a bigger stick with respect to punishment, current Texas statutes of limitations would most likely have to be extended or have a discovery rule written in so that any punishment could be carried out at all.

And what’s “inherently not discoverable, anyway? That’s the most common argument made in civil cases by people whose conduct is discovered late, that it should have been discovered earlier. I’d say failure to disclose evidence known by a prosecutor, or as in the recent Rachell case, claiming that there was no physical evidence when in fact there was, would qualify. While there appears to be enough blame to spread to every lawyer involved in the Rachell case, it’s just one of many in Harris County and state wide where the allegation of withholding evidence has appeared. Because the Code of Criminal Procedure now allows for discovery in criminal cases just as the rules apply to civil cases (albeit with a few more hoops through which to jump because many discovery requests require the permission of the court), there’s pretty much no excuse for not filing a motion to gain access to all non-privileged file materials, including what should be all physical evidence and expert reports. Any defense lawyer not doing so is probably committing malpractice, even if the prosecutor tells them there’s nothing to request, as may have happened in the Rachell case. The down side of that for a defense lawyer is that it appears that almost everything is inherently discoverable, even if the prosecutor tells you it’s not in the file, unless you can get a full copy of the file and prove that it was withheld even from a discovery request. And even then, because it’s becoming more and more apparent that even if you didn’t actually find out about the misconduct for several years due to a prosecutor’s actions you’re still bound by the original statute of limitations with respect to civil cases.

And no matter what remedies are available to the defendant, we have yet to address what happens to the prosecutor. So, you first have to determine if they’ve made a Brady violation and failed to disclose evidence (which as mentioned above may not even allow you to bring a civil case), and hope that you discovered it within the statute of limitations because as shown above you’re out of luck in filing a civil suit because there is no applicable tolling provision. (There are vague references in some cases to common law tolling provisions applying to §1983 claims but those are usually deal with the incapacity of the defendant at the time his cause of action accrues, not based on a discovery rule.) But again, that has to do with a defendant’s remedy, not a prosecutor’s punishment. Apparently, the criminal case against him would be equally hopeless because it appears that the criminal and civil statutes of limitations are treated equally at common law, and the statutory tolling provisions in the Code of Criminal Procedure simply do not apply.

So I guess to make a long story short, a prosecutor can be sued, but only within the statute period because there is no discovery rule if you’re innocent. This is because you knew you were innocent and it should be no surprise to you. Prosecutors may be prosecuted, at this point for only a misdemeanor, and again only during the original statute period because it appears that there is no applicable tolling statute for his own malfeasance (maybe because it’s known to him?). So in all practical aspects, because the prosecutor’s misconduct is discovered years later, they can almost never be prosecuted even if a DA was inclined to do so. Finally, a prosecutor may also be disciplined by the state bar. Again, would that it was ever done.

So it appears that a prosecutor maintains in all practical reality immunity from prosecution and even discipline. No wonder they can quabble over the definition of words like ‘tends to’ and ‘negates’ because their bosses, who have done the exact same thing, won’t punish them and by the time the omission is discovered all criminal penalties are time barred.

All we in Harris County can hope for is that Lykos follows through on her threat to punish those in her office who withhold exculpatory evidence. I hate to say it, but an internal policy such as the one she’s proposed is probably the only hope the HCDA has to start hitting above the belt.

Thursday, January 1, 2009

Driving While Black

Never tell a cop in Bellaire that he shouldn't push your mother against the wall of her own home, or you just might get shot. This incident started when a police officer checked the license plate of a car driving in Bellaire "as a routine matter." Right. If by "routine" you mean "there's a black man driving through Bellaire at night, better check it out." According to the cop on the scene the plates come back as stolen, which as of now seems impossible to believe because there had been no report of the car being stolen by its owner, in whose driveway it was being parked, by her son, who was the one being profiled by the Bellaire cop.

So, the cop tells them to stop and lay down. They do. The mother comes out to see what's up, the cop tells her. She says it's her car, they throw her against the wall. The son leans up, still largely prone, and tells the cop not to hurt his mother, and the cop shoots at him three times. Good thing the cop has spent too much time in the donut shop and not at the range, because that can be the only explanation for how a ten year veteran hit a stationary and prone target only once.

It'll be interesting to follow this story and see what happens to the cop. My guess: nothing.

Mandatory New Year's Post

It appears that a blogger is required to post something on New Year's Day.