Runaway grand jury closes up shop

Yesterday the grand jury investigating the Harris County District Attorney's Office announced that it was not issuing any indictments. The news was greeted with a big yawn by folks around the Criminal (In)justice Center.

The grand jury foreman, Trisha Pollard, said the grand jury didn't find any evidence of a crime but that they were troubled by the actions of the DA's office. They singled out Rachel Palmer for her refusal to answer questions pursuant to her rights under the Fifth Amendment.

Left unsaid is why special prosecutors didn't offer Ms. Palmer immunity in exchange for her testimony. They went so far as to file a motion to compel her testimony that was denied by the judge. They claimed that none of the questions they wanted to ask were incriminating; but when given a choice between having Ms. Palmer answer the questions under a grant of immunity or not asking the questions at all - they chose to keep their mouths shut.

What information did they seek from Ms. Palmer? And if it was so damn important to the investigation that they were more than willing to ignore the Bill of Rights, why didn't they offer her immunity?

Whatever. Now Pat Lykos will stand up and declare victory and the Mike Anderson forces will stare down at their toes. The fact is the investigation is a black eye on Ms. Lykos and her administration. And, no matter how you want to spin it, Ms. Lykos and her office did their best to stonewall the investigation. That also doesn't bode well for a person who has the ethical duty to see that justice is done.

Given the public's notoriously short attention span and the fact that we don't know when the primary will be held, there's a good possibility that most of the folks in Harris County are going to forget all about this little affair before they step into the voting booth.

I'm not so certain that anyone in the DA's Office broke the law in the BATmobile fiasco. Withholding exculpatory evidence is a Brady violation and, at best, could get you a new trial - unless the error was determined to be (wait for it) harmless. There is no monetary or criminal sanction for not turning information over to the defense that the defense doesn't know about.

As such, there was never the possibility of anyone being indicted for not giving up the goods. The only thing that would have bitten someone in the ass was lying under oath to the grand jury.

So, go on, there's nothing to see here.

Not quite so open

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.

-- Texas Constitution, Art. 1, Sec. 13

Apparently that provision doesn't apply whenever a criminal court overbooks itself and sets so many cases on the docket there aren't enough seats in the courtroom for all of the defendants.

Sit in any Harris County misdemeanor court at docket call and you will hear the bailiff tell you to leave the courtroom if you aren't on the docket. Well, I hate to break it to you, but the public has a right to be in that courtroom. It is, after all, the people's court (thanks, Judge Criss).

The problem isn't mom or dad or husband or wife or boyfriend or girlfriend being there to support their loved one. The problem is requiring defendants to continue showing up in court for multiple settings when there is no need for the defendant to be there.

If it's a so-called "non-issue" setting on a criminal case, the only person who's presence is required is the attorney. Nothing's going to happen. The prosecutor may make an offer. The defense attorney may make a counter-offer, but that's it. Maybe the defense attorney files a motion or two. No reason for the defendant to be in court for the ceremonial exchange of paper.

A defendant's presence is necessary on the initial arraignment setting. After that, there's no need for the defendant to be present until the case is set for trial or to enter a plea. Requiring their presence only clogs the courthouse and puts pressure on defendants to plead out their cases because of the inconvenience of coming to the courthouse.

In pursuit of limited government

Where are the voices calling for limited government when we need them?

Where are the voices of the teabaggers, libertarians and wingnuts when it comes to the overpolicing of America?

Last week Jack Abercia resigned his post as Harris County Constable for Precinct One in the face of a federal indictment on corruption charges. As it turns out, all eight Harris County Constables are being investigated in one fashion or another by the County Attorney's Office.

But why do we even have constables anymore? They are a relic from another time. We already have the Harris County Sheriff's Office, the Houston Police Department, the Metropolitan Transit Authority Police Department,  the Port of Houston Police, the University of Texas Police Department, the University of Houston Police Department, police departments in all of the little bedroom communities within the city limits of Houston and those in the county, and of the school districts in the county.

Why is it that the proponents of limited government are nowhere to be heard when the issue of overpolicing arises? Why is it that they have nothing to say when the power of the government is used to infringe upon the freedom and liberty of the citizenry and not the corporations?

There is no need for this level of policing in Harris County. Duplicate functions need to be eliminated. If we are going to keep a constable's office in Harris County, the sole function of the office should be to serve process and subpoenas. But we have a Sheriff's Office. The bailiffs in every court (other than JP courts and municipal courts) are sheriff's deputies. Deputy sheriffs serve subpoenas in criminal proceedings.

There is no further justification for constables in these modern times, unless they are going to be employees of the justice of the peace courts and process servers. There are more than enough paramilitary units patrolling this county as it is.

Crisis? What crisis?

Yesterday my colleague Murray Newman serenaded us with word that there was a serious shortage of grand juries in Harris County because Pat Lykos and her minions dropped the ball.

Murray seemed quite concerned that someone the lack of indictments make cause the sun not to rise or cause solar flares or even cause the hole in the ozone layer to get bigger.

My response? So freaking what?

So the state's ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What's the problem, Murray?

We're criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone's freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.

This Old Courthouse: Harris County edition

Sadly one of the lasting legacies of Houston is our propensity to tear down anything that's older than we can remember. Developers in this town aren't too fond of old historic properties (the famous Shamrock Hotel below is Exhibit A).

In 1910 a courthouse was built in downtown Houston to house the civil and criminal courts. By 1940 they ran out of room and began looking for additional space. In 1954, a new criminal courthouse was built across the street (now the juvenile courthouse). In 1999 a new criminal courthouse was built and just a few years ago a new civil courthouse was erected. The 1910 courthouse was left without a tenant.

But someone had a pretty damn good idea. Why not restore the old courthouse to its original splendor? Why not move the 1st and 14th Courts of Appeals from their generic quarters at South Texas College of Law and put them in the old courthouse?

While I was in law school I worked as a clerk for a civil firm. I spent a good deal of time the old courthouse (before the new one opened). It was, in a word, ugly. There were a few hidden gems but, for the most part, all the cool stuff had been sheetrocked over.

The results of the renovations are stunning. The courthouse was built in 1909-1910. It was designed by Charles Erwin Barglebaugh in the Classical Revival style. As part of the renovations, the entrance was returned to the 2nd floor and marble was put back on the walls.

The view from the northeast.

Here's a closer look at the facade along San Jacinto.

These stairs lead to the new entrance on the 2nd floor. The 1st floor takes you into the tunnel system.

Looking up at the rotunda. This picture doesn't give it justice.

And looking down from up high. This shot gives you a good idea of just how much marble was used in the project.

This is the view from the balcony of one of the Courts of Appeal (I'm sorry, it's been a while and I didn't make a note of which court I was in). I think balconies in courthouses are awesome. 

We joke from time to time about how badly the government screws up construction and renovation projects. Well, this time they got it right. The 1910 Courthouse is a work of art.

Grand jury subpoenas top county officials in DWI probe

Remember that "runaway" grand jury investigating the HPD BATmobiles? Well, they're baaack...

The county judge and two commissioners have been subpoenaed to testify before the grand jury. It is believed that the grand jury is looking into the contract the county entered into with the Texas Department of Public Safety to administer breath test machines in Harris County. The county entered into the contract after Harris County District Attorney Pat Lykos urged county commissioners to dump Lone Star College after former HPD crime lab technical supervisor Amy Culbertson spilled the beans on the malfunctioning breath test machines in HPD's BATmobiles.

First a word for those of y'all not from Texas. The county judge isn't really a judge, he's the head of the county government. The commissioners are the elected representatives who run the county.

Ostensibly, the reason for the change in maintaining the breath test machines was a cost-saving function. The county's contract with the DPS is $330,000 for the first year versus $342,000 with Lone Star College. But there's more to the calculation than that. Remember, DWI is big business in Texas and running the breath test program is no exception. For every DWI conviction obtained without the use of DPS technicians, the state reimburses the county $22. Doesn't sound like a lot on the surface but, between 2008 and 2010, the county was reimbursed $220,000 by the state. Do the math; the DPS contract will cost the county more money in the long run.

The change had nothing to do with saving the county money. The change was retaliation against Lone Star College for hiring Amy Culbertson after she left the Houston Police Department. The change was retaliation against Ms. Culbertson for testifying truthfully about the problems with the BATmobiles.

Ms. Lykos and her minions got caught withholding Brady material from defense attorneys handling DWI cases. Ms. Lykos has blamed Ms. Culbertson and she has blamed HPD for the fiasco. All of that is an attempt to deflect attention away from the actions of the Harris County DA's Office.

A master and his craft

The other day I was stuck in the Harris County Criminal (In)justice Center a bit longer than anticipated. There was a trial going on in the 232nd - a young man was charged with murdering another young man. The young man was convicted. The punishment hearing happened to be going on the day I was in there.

The young man was represented by my esteemed colleague, Tyrone Moncriffe. I've seen Mr. Moncriffe give a couple of presentations at CLE seminars I've attended over the years. I hadn't, however, had the opportunity to watch him in person. What I saw amazed me.

His closing argument was eloquent. He stood before the jury and told them that he felt he had let his client down. He told the jury that he wasn't mad at them for their verdict - he was mad at himself. He also told the jury that he was afraid of them.

He pointed out that his client had no criminal history and that no one who took the witness stand had anything bad to say about him. He told the jury that what happened that night was out of character and he asked them to keep that in mind when they retired to the jury room.

He told the jury that they didn't know his client. They only saw him a few hours a day sitting at counsel table. He told them that he sat beside his client. He had met with his client's family and friends. He pointed out that once the jurors had rendered their decision that they could walk away from the case and forget all about it. But, the one thing that would stay with them was their decision.

It was a very powerful close. He never once raised his voice. He expressed his sorrow for the victim's family.

But, more than that, he expressed the feelings that all of us in the defense bar experience. There are few things harder than standing beside your client and hearing a jury declare him guilty.

Mr. Moncriffe's client was sentenced to 10 years in prison.

That's ten years of asking yourself if there was anything else you could have done.

UPDATE:

I spoke with Mr. Moncriffe this morning about his close and he told me the last offer from the prosecutor was 45 years. I would consider that a good outcome.

Staggering dockets won't relieve jail overcrowding

Harris County Sheriff Adrian Garcia has taken it upon himself to try to resolve the county's long-term problem of jail overcrowding. It's too bad that it won't solve a thing.

There are 22 district (felony) criminal courts and 15 county courts-at-law (misdemeanor) in the Harris County Criminal (In)justice Center. There is a "holdover" cell in each courtroom that is supposed to hold no more than 19 inmates. As they would say across the pond, that guideline is honored more in the breach than in the observance.

There is a giant holding cell in the tunnel between the county jail and the courthouse that can hold roughly 250 inmates. Now do the math. Thirty-seven courts with 19 inmates is a bit more than 250. The overflow inmates are lined up in the tunnel where they wait.

What is one to do?

Sheriff Garcia decided to stagger the times he has inmates delivered to courtrooms.This means that an attorney may walk into a courtroom and have no idea when his client might be brought over.

The problem with Sheriff Garcia's plan to alleviate overcrowding is that it doesn't. His plan only treats the symptoms, not the disease.

The way to reduce jail overcrowding in Harris County is to find a way to get those people in jail awaiting trial out of jail. Every person brought into the county jail is innocent unless proven guilty. To force someone to stay behind bars due to the arbitrariness of the county's bail schedule is a crime.

The first blog post I wrote dealt with the need to increase the number of personal bonds issued. Every person without a prior criminal record arrested for a non-violent offense should be released with a personal bond. The only reason to keep them behind bars is to coerce a plea out of them. Just wave that offer of time served in front of their face and they will gladly plead guilty to something they didn't do just to get out of that hellhole.

The other way to reduce the jail population in Harris County is to issue citations and summonses for non-violent misdemeanor drug possession cases. Confiscate the goods, issue the person a ticket along with a summons ordering them to appear in court on a certain day at a certain time under threat of arrest.

We need to do away with this notion that anyone charged with domestic assault must be held without bail until such time as he can see a magistrate so a temporary protective order can be issued. If we can find judges who are more than willing to hang around the courthouse (or by a fax machine) at all hours of the night to sign fill-in-the-blank warrants authorizing forcible blood draws, certainly we can find a judge or two who can sign an emergency protective order on short notice. It's not like they're going to read it or set a hearing to determine whether it's necessary or not.

Sheriff Garcia's plan addresses none of these issues.

County proposes plan to ration health care in case of emergency

If you're unhappy about the way your insurance company likes to question your doctor about the appropriate treatment for whatever ails you, you're going to love the new Harris County plan for dealing with a future flu pandemic.

After two years of drafting, the county is finalizing a plan on how to ration ventilators in the event of a flu outbreak the likes of which haven't been seen since the 1918 Spanish influenza epidemic that afflicted 500 million people and killed 50 million.

County officials have decided who will have access to a ventilator and who will be left to suffocate to death. Estimates are that a pandemic could cause over 10,000 residents to need a ventilator. Unfortunately, there are fewer than 400 unused ventilators in the county.

The Harris County plan notes that many patients with bird flu have required mechanical ventilation within 48 hours of hospitalization. In the event of a severe pandemic event, as many as 10,231 infected Harris County residents would need ventilators, the plan says, a number in addition to those already on ventilators for other conditions. Typically, there are less than 400 unused ventilators in Harris County at a given time.

Under the county's plan, folks needing the use of a ventilator would be placed into one of three categories: (1) patients who are healthy enough to recover without the use of a ventilator, (2) patients who are so sick that a ventilator won't matter and (3) patients who are sick but will recover with the use of a ventilator.

But it won't be the treating physician who will make that call. Nope. Say hello to the hospital review officer. That's right. A mid-level manager will be making those life and death decisions for you should you find yourself in need of a ventilator. After all, we can't possibly leave those kinds of decisions in the hands of medical professionals who have trained for years in the art of diagnosis and treatment - they'd just want everyone to have a ventilator. We need a bureaucrat with a pocket protector to work the calculus to determine who lives and who dies.

Lisa L. Dahm, an adjunct professor at South Texas College of Law, suggested that, in order to avoid lawsuits, county officials should push to suspend laws that require doctors to treat their patients with life-threatening conditions. Way to go, Ms. Dahm. Just brilliant how you took the focus off the ethics of a hospital administrator playing God to focus it on how to reduce the county's liability when someone's grandmother dies because the plan says she doesn't get a ventilator.

"These are difficult conversations none of us like to have. But the reality is, in a severe pandemic, there'll be serious shortages of medical resources and it behooves us to make the best possible ethical and clinical deliberations in advance about who should get them." -- Dr. Herminia Palacio, Director of the Harris County Health Department

In an ideal world we'll never know the public's reaction to the plan because the dreaded flu pandemic will never come. But, the increased use of flu shots will only serve to strengthen the resistance of the virus (much like gonorrhea has overpowered our arsenal of drugs). Oh, that damn law of unintended consequences can be such a bitch sometimes.

The public was invited to participate in the discussions and each participant received $75 per day. Would the fact that these meetings were held during a time when there was no fear of a pandemic affect the discussions? Would the fact that participants received a small stipend have an effect on the outcome of the meetings? William Winslade, an ethicist with the University of Texas Medical Branch thinks so. Hey, it's easy to toss around ideas like that when there's no pandemic in sight. And who would complain when they're getting paid much better than jurors to sit around a table and discuss the issue?

It's interesting that this plan is being drafted by unelected officials instead of the commissioners chosen by the people to govern the county. Is that because Ed Emmett and company don't want to take the heat from residents about rationing health care in case of an emergency? One would think that elected public officials who are paid by our tax dollars would have enough integrity to take a stand.

But, I've learned over the years never to start a sentence with the phrase one would think.

Looking at the death penalty county-by-county

Robert J. Smith, a visiting professor at the DePaul University College of Law has taken the analysis of death sentences across the country to an entirely new level. He authored a paper that will be in an upcoming issue of the Boston University Law Review tracking death sentences by county.

While Texas has a reputation for lining 'em up and mowing 'em down, the reality is that 220 of the 254 counties in Texas issued no death sentences between 2004-2009. Over that period, 19 counties imposed a death sentence only one time. Of the remaining 15 counties that imposed more than one death sentence over that period, only four counties sentenced defendants to die at a rate of more than one a year.

For anyone practicing in Harris County, these results should not come as a surprise. According to Professor Smith's research, these are the four counties that lead the state in death sentences:

• Harris (26)
• Bexar (10)
• Tarrant (10)
• Dallas (8)

Texas isn't even the leader in ordering the murder of its own citizens. Los Angeles County imposed more death sentences (33) in 2009 that the entire state of Texas. Maricopa (AZ) County imposed more death sentences (37) that the entire state of Alabama.

Professor Smith's research shows that 10% of the nation's counties account for every death sentence issued between 2004-2009. Less than 1% of the nation's counties sentenced, on average, more than one person a year to death - accounting for 50% of all death sentences. Thirteen counties average more than two new death sentences a year - they accounted for 29% of all death sentences.

It is also important to track executions at the county level. The strongest remaining rationale for the continued Eight Amendment validity of capital punishment is its retributive effects; however, if counties sentence people to death that the states do not execute then the retributive function of the death penalty is diminished because the act of execution is not realized. -- Robert J. Smith, "The Geography of the Death Penalty and its Ramifications"

If we look at the number of executions carried out, however, Texas is far and away the leader in the number of state-sponsored murders committed between 2004-2009 with 134 executions, accounting for 45% of the executions carried out during that period. The State of Ohio was a distant second with 25 executions, accounting for 8% of the total.

If we look at the "efficiency" of the state killing machine, only four counties across the nation saw more than one of their death sentences carried out (on average) each year. Those counties are:

• Harris (42)
• Dallas (13)
• Bexas (12)
• Tarrant (11)

Here's one other little nugget to think about, in Florida, a jury can sentence a person to death by a majority vote of the jurors while Alabama only requires that 10 jurors agree to death in order to impose the death penalty. Alabama and Florida also permit judges to overrule jury recommendations and impose a death sentence anyway.

The death penalty is applied arbitrarily and capriciously. It doesn't undo the deed that led everyone to the courtroom. It only serves to give politicians and judges a platform to declare that they are tough on crime.

Hear the one about the guy who thought he was innocent unless proven guilty?

Innocent unless proven guilty? Really?

Try telling that to Jose Torres. Mr. Torres was charged with aggravated sexual assault. It was alleged that he visited a house as a sales rep for a cable company and then went back two days later and raped a 14-year-old. The only problem was, he didn't do it.

The results of a DNA test confirmed that Mr. Torres was innocent.

But not until he had served two months in jail. No before he lost two jobs and his apartment.

Mr. Torres had never been arrested. He had a clean record. Like most folks, he just assumed that "the system" worked fairly well and he never worried about being falsely accused of a crime. No one does. That just doesn't happen to good people.

But it does happen. Our criminal (in)justice system sits logic on its head. Once you're arrested you ain't innocent unless proven guilty. No, you're guilty unless you can prove otherwise. Let's slap a high bond on you so that you can't fight your case from the outside. Let's put pressure on you to accept a deal for a crime you never committed. After all, how could the state and its allies, the black-robed prosecutors, possibly be wrong?

Mr. Torres is very fortunate. He is fortunate he is free and his case was dismissed. He is fortunate to have had  my colleague, Juan Guerra, as his attorney. He is fortunate that DNA tests were run. He is fortunate he didn't have to live the nightmare of so many other exonerees who stood and listened to juries pronounce them guilty and who sat in prison for years until someone took up their fight.

Once upon a time the grand jury system was devised as a way of protecting the reputations of those accused of crime unless there was sufficient evidence to warrant a trial. Nowadays the grand jury is nothing more than a de facto division of the DA's Office who takes its marching orders from the prosecutor presenting the case.

You could argue that in this case "the system" worked as it should. Just don't try telling that to Mr. Torres.

Buddy, can you spare some time?

Recently a member of the Harris County defense bar penned an article taking a critical look at public defenders' offices. And, somewhat predictably, those employed by the Public Defender's Office were up in arms about the perception that indigent defendants might not be getting the legal representation they deserve.

Clay Conrad wrote that public defenders are too overworked to provide the level of representation called for. Mr. Conrad points out that the main problem facing public defenders is caseloads that are too heavy.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are "pied out" without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts.

Per ABA Guidelines, attorneys should not handle more than 150 felonies a year. But what does it mean to handle that many felony cases a year? That works out to three felony cases a week -- each and every week. Assuming a 40-hour work week, that means just 13 hours per case. That thirteen hours includes court time, jail visits, witness interviews, research and motion drafting. It doesn't take into account trial prep and trying cases. It also doesn't take into account meetings, continuing education, lunch, vacation and sick time.

Does that sound like enough time to handle a case adequately?

The lack of time to work a case puts pressure on everyone to dispose of other cases as quickly as possible. Which cases just get the "once over" and which cases get further work? How are those decisions made? Whose lives are affected because there aren't enough hours in the day?

But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

I know many of the lawyers in the Harris County Public Defenders' Office and they are very good at what they do. They care and they want to make a difference. But idealism and energy can't make up for lack of time and money.

What happens when Harris County decides it's time to cut the budget? Indigent defendants aren't a large voting bloc in Harris County. Trim a little here. Cut a little there. At some point the ABA Guidelines will be tossed aside in the name of keeping the operation within its allotted budget. At some point there will be pressure to "work out" more cases in order to keep costs down.

It's hard to serve two masters.

Stuffed to the gills

Forget about all that 6th Amendment nonsense about the right to counsel, Harris County has decided that's not nearly so important as cramming as many pre-trial detainees into the Harris County Jail in order to coerce guilty pleas.

From: Armand, Stephanie (DCA)
Sent: Friday, May 20, 2011 2:50 PM
To: DC Criminal Coordinators (DCA)
Cc: DeLeon, Sisto (HCSO)
Subject: Contractual Logistics Transfers
Sent: Friday, May 20, 2011 2:50 PMTo: DC Criminal Coordinators (DCA)Cc: DeLeon, Sisto (HCSO)Subject: Contractual Logistics Transfers 

Good afternoon,   Due to jail overcrowding, pre-trial inmates with a future date of 35 days or over are transferred to outlying jail facilities in Newton and LaSalle County.      The inmates will be returned to Harris County Jail, two weeks prior to the setting in the court.     Video Conferences are available at both of these facilities to allow the defense attorney to visit with his/her client.         Defense attorneys may contact one of the following individuals to arrange the video conference: Lt. J.D. Clay @ 713-755-8434 or 713-755-8425 Sgts. C.D. Minshew or F. Dlouhy at 713-755-8420 Or Deputy Station at 713-755-1188 or 713-755-1189   Please convey this contact information to the defense attorneys.    This information is also available on the Coordinator’s Resource Webpage under Contractual Logistics Transfer Procedures.       Thank you in advance for your assistance in this matter.
 
Stephanie Armand Business Process Manager Administrative Offices of the District Courts 713-755-5704

Keep in mind that we aren't talking about people who have been found guilty of anything. These are the folks that are supposedly innocent unless proven guilty. These are the folks who are unable to post bond. These are the folks that most people don't give a rat's ass about.

But they're being transported all over the state because Harris County refuses to do anything to address the underlying problem of jail overcrowding -- punitive bonds.

And then there's HB 1173 that would allow counties with populations over 3 million people to extend the time they can hold a suspect without a probable cause hearing from 24 to 36 hours. That's just what we need here in Houston -- there's not enough room at the inn as it is and now we're going to allow the state to hold a citizen in jail an additional 12 hours.

Of course, if it's a bad bill related to criminal justice you know it must be sponsored by Sen. Joan Huffman. Interestingly enough, the fiscal analysis indicates that there should be no additional cost to the state (understood) or to local government (?). Just how many pretrial detainees are being transferred out of the county to make room for the new blood over on Baker Street?

Here's an idea for our legislators in Austin -- how about mandating the issuance of citations for Class B possession of marijuana cases? Confiscate the contraband, issue a citation with a promise to appear and go on about your business. It's going to be cheaper than shipping detainees out of the county and it might just allow Harris County to take care of its business when it comes to holding probable cause hearings within 24 hours.

And now a word from the kingmaker

What follows is from an open letter to the Texas Republican Party by Houston-area kingmaker and all-around wingnut, Dr. Steven Hotze...

Dear All,

Greetings! I am taking my stand with Norman Adams. He appears to be the lone voice of reason and common sense on the immigration issue.

I personally like the Hispanic people and their commitment to family and the work ethic. They are also a Christian based culture. I don't blame them for having made it to America by hook or crook. My great great grandfather pealed potatoes on a boat from Germany to get to America and the WASPs did not like him or the other immigrants that came with him. They also did not like the Irish or the Italians.

We had better embrace the Hispanics because they are going to be the dominant culture in Texas in no short order. I hope that Sen. Marco Rubio from Florida is our Republican VP in 2012.

Conservative Republicans from Texas helped elect 7 Hispanic Republicans to the Texas House. There were 2 Republican Hispanics elected to Congress from Texas. Why should we let the democrats steal them from our party?

It seems to me that there may be nativistic and prejudicial thinking on the immigration issue by many Caucasians. The argument is that millions of Hispanics broke the law to get here. Which one of you would not have done the same thng had you been in their shoes? I like people who take risks to help their families and are willing to work to better their families' lives. We have a whole lot of American born citizens who I would gladly trade in exchange for hard working Hispanics.

The majority of the Hispanic culture in America is Christian, pro-family, pro-life and pro-free enterprise. Sounds like they would make great Republicans to me. Let's go recruit them!

Gentlemen, it seems that the real problem we face is the Muslim immigration invasion of America. The Hispanics are our natural allies against the Democrats and Muslims.

With much appreciation, I remain, as always,

Sincerely yours,

Steven Hotze, MD

I hardly know where to begin. I will start off by saying that it is refreshing to hear a conservative speaking out in favor of immigration. Dr. Hotze is well aware that if his party "goes Arizona" here, they will lose the opportunity to build strong roots in the Hispanic community.

On the other hand, I am troubled by much of Dr. Hotze's commentary. Who are the citizens the good doctor would "gladly trade" for more folks from down south? Hmm. Not whites, I'm certain. Probably not Asians, either. That would leave African-Americans.

And let's not forget who our "real enemy" is. It's those folks from the Middle East that talk and dress funny. He can cast a net over the entire Hispanic diaspora as "good Christians" and then stereotype anyone who prays to Allah as the evil invaders.

And should I assume that Democrats and Muslims are the enemies of "right-thinking" conservatives? Haven't we had enough of the war metaphors for one lifetime, Doc? Does this mean that the judges who come to Dr. Hotze hat-in-hand must pledge fealty to the Republican cause and do battle against the good doctor's enemies? Just how many judges sitting on Harris County benches made such a blood oath in order to get the thumbs-up from Dr. Hotze?

It's hard enough for criminal defendants to get a fair shake in the courtroom as it is. How many more are starting squarely behind the 8-ball because of their faith?

Reasonable doubt?

Harris County (Texas) Commissioner Jerry Eversole (we might need to start calling him Teflon) walked out of the federal courthouse in Houston, Texas on Wednesday after a judge declared a hung jury.

Mr. Eversole was charged with accepting a bribe, conspiracy and filing false tax returns.

The feds alleged that Mr. Eversole had accepted bribes from real estate developer and personal friend Michael Surface. Mr. Eversole argued that any gifts that exchanged hands had nothing to do with county business and were private transactions between he and Mr. Surface.

After four days of deliberations, the jurors (once again) informed US District Court Judge David Hittner that they were deadlocked and that there were no expectations that they could come to a unanimous verdict. After receiving the note, Judge Hittner informed the jurors that if they could not reach a unanimous verdict another jury would have to be picked and all of the evidence would have to be presented again.

In other words, he asked the jurors to do their civil duty and save the feds some money.

His exhortation was to no avail as the jurors came back after some more deliberations without a unanimous verdict on any of the counts.

As to be expected, US Attorney John Pearson announced that los federales were prepared to tee it up again in their quest to convict Mr. Eversole.

In recent weeks both Scott Greenfield and Gideon have written about what beyond a reasonable doubt actually means. The jurors in Mr. Eversole's case heard the evidence. They went back in their little room, sat around a conference table and argued for some 18 hours about whether los federales had proven each and every element of their case beyond all reasonable doubt.

They were even castigated by a judge (and, in essence, were told they were wasting taxpayers' money if they couldn't come to a unanimous verdict) and went back and argued some more. Still they couldn't reach a unanimous decision on any of the four charges.

What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn't prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn't prove beyond all reasonable doubt?