Happy Birthday, Guantanamo

Where were you ten years ago? What were you doing? Who were you hanging out with? What changes in your life have you seen over the last ten years? Who's died? Who's been born?

Think back to January 2002.

That's when President Bush opened Guantanamo Bay in Cuba as a prison for detainees in the War Against Something Terror. That's when he decided to hold those detainees indefinitely without charges, without bail, without trial.

That's when President Bush said fuck the Constitution. And that's when our representatives and senators in Washington forgot all about that oath everyone took to uphold the laws of the United States.

Sure, it's a dangerous world out there. We all know that. But it's been a dangerous fucking world ever since man first decided to walk upright and venture out of caves.

It was a dangerous world long before 9/11. A good deal of that danger we brought about ourselves by meddling in the affairs of other countries.

Just how safer do you feel knowing that your government has been holding people in prison for a decade without ever bringing them to court? Without ever presenting the evidence it claims to hold against them?

Constantly changing security alerts. Scope and grope at the airport. War in Afghanistan. Feeling safer yet?

So, happy birthday, Guantanamo.

On secret prisons and shredding the Constitution

It would appear that the CIA has been operating a secret prison in Bucharest since the days of the Shrub administration.

The prison was used to hold and torture people suspected of terrorism. After the discovery of the basement prison, both US and Romanian officials denied its existence.

Is this what we have become? The US is supposed to be a place where the rule of law is supreme. A place where the Constitution and the Bill of Rights sets limits on what the government can and cannot do. A place where all men are equally presumed innocent before a jury.

But, in the name of security, our government has subverted the Constitution and has declared that the needs of the state outweigh the rights of the individual. Secret prisons. Indefinite detention. Military tribunals.

Is nobody willing to stand up in defense of the Constitution?

The only purpose of having secret prisons is to deny suspects the rights afforded to all of us. You don't need an attorney - all you need is a towel over your head and a steady stream of water. So fucking what if the use of torture against prisoners is outlawed - who the hell knows anyone's there?

I'm fairly certain that a good chunk of the populace doesn't care. They're terrorists - who cares what happens to them. Far too many people buy into the national security state. Far too many people are willing to cede their civil liberties for the illusory promise that the government can keep us safe.

The existence of these secret prisons should bother you. Hell, it should infuriate you. Our government has taken what's left of the Bill of Rights and run it through the shredder. When our government authorizes the torture of an inmate or a detainee or a terrorism suspect (whatever words you wish to use), our government is authorizing the use of torture against you and against me.

Our democracy is only as strong as the laws that constrain the absolute power of the state. There is no check on that power when the government operates in secret. There is no check on that power when the existence of a prison is hidden and denied.

If you don't stand up and demand that our government respect the rule of law, then who's going to stand up when they come for you?

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Death without due process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. -- 5th Amendment

The United States has killed two of its own. On Friday, under orders from President Obama, a US military airstrike resulted in the death of Ayman al-Zawahri, an American-born cleric who had become a vocal critic of US policy. Killed alongside Mr. al-Zawahri was Samir Khan.

In July, U.S. Defense Secretary Leon Panetta said al-Awlaki was a priority target alongside Ayman al-Zawahri, bin Laden's successor as the terror network's leader.

The Yemeni-American had been in the U.S. crosshairs since his killing was approved by President Barack Obama in April 2010 — making him the first American placed on the CIA "kill or capture" list. At least twice, airstrikes were called in on locations in Yemen where al-Awlaki was suspected of being, but he wasn't harmed.

Mr. al-Zawahri and Mr. Khan weren't arrested for anything. They weren't charged with anything. They were never indicted. They were never tried before a jury of his peers. They were never convicted of any crime against the United States.

There was no due process of law. Mr. al-Zawahri and Mr. Khan, were deprived of their most basic rights because they dared to voice criticism of US policy in the Middle East.

President Bush (the Younger) created a shitstorm when he ordered suspected terrorists and their supporters to be held indefinitely in prison. People were also up in arms (at least those who knew what was going on) about the expanded powers given to the government to spy on its own citizens. But neither of those policies holds a candle to ordering the death of American citizens without affording them due process of law.

As flawed as the Troy Davis situation may have been, at least he was afforded his day in court. That's more than Mr. al-Zawahri and Mr. Khan were given. If los federales had the goods on Mr. al-Zawahri and Mr. Khan, why not obtain an indictment? Why not seek to extradite them? Why not put them on trial? If their deeds were serious enough to warrant death - then let's see the evidence. What are you afraid of, President Obama?

Is it because their "crimes" involved being vocal critics of your foreign policy? Is it because of the words they spoke and wrote?

Thus far President Obama has caught flak for the state of the economy on his watch. Now it's time he catches it for ordering the deaths of two American citizens and depriving them of their constitutional rights. When President Obama was sworn into office, he took an oath to defend the US Constitution.



President Obama, you just violated that oath. You were not only part of a conspiracy to deprive two American citizens of their constitutional protections - you were the man in charge of the conspiracy. In depriving them of their constitutional rights, you also conspired to murder the two men.

See also:

"Ron Paul calls US killing of American-born al-Qaida cleric in Yemen an 'assassination.'" Washington Post (Sept. 30, 2011)

"Obama praises al-Awlaki killing," Time (Sept. 30, 2011)

Got Jesus?

Would you rather sit on a pew or sit in jail?

That's the choice being offered in the town of Bay Minette, Alabama for those accused of non-violent misdemeanors (let's forget, for a minute, the absurdity of putting someone convicted of a non-violent misdemeanor in jail). In exchange for attending church on a weekly basis, a defendant can have his or her case dismissed.

I thought Judge Clinton here in Houston had a goofy idea when he offered to reduce community service hours in exchange for reading a Christian how-to book. That was nothing.

The police chief sees nothing odd about the program. He doesn't think it violates the First Amendment because no one is forcing folks to take part and participants can pick the church of their choice. He thinks it's a good idea. And it saves the city the $75 it would cost to house an inmate per day.

I'm all for alternative methods of sentencing and rehabilitating folks. Just locking them up in the county jail (or the state pen) ain't working. Giving someone an alternative to their destructive behavior can't help being a step in the right direction.

But church? Religion has been used for centuries as a tool of manipulating the masses. Tell people that their lives aren't going well because God isn't happy is a masterful way to getting them to tune out the inequities in our daily lives and not question authority. Religion has been used to justify murder, homophobia and sexual abuse.

The charlatans who parade in front of the television cameras live high on the hog as they press their congregants to give up more and more of their hard-earned income because "God will give it back ten-fold!" Just look who's living in the McMansion an driving the Mercedes.

And what about that whole First Amendment thing? You know, the little provision that Congress shall make no law respecting the establishment of a religion. The Fourteenth Amendment applied those prohibitions to the states.

Offering to dismiss a case if a person attends church every week for a year discriminates against non-Christians and athiests. It violates the very spirit of equal protection under the law. Enacting such a policy confers additional benefits on those who share the religious belief of the judge.

Is the city getting a cut of the tithes?

US Constitution ratified 223 years ago today

And speaking of the Constitution...

On this date in 1788, New Hampshire became the ninth state to ratify the U.S. Constitution which, per Article VII, made the new blueprint for governing the country binding.

After being ratified by eight states, the fight for the Constitution became bogged down as delegates in New Hampshire and Virginia were split down the middle and delegates in New York were solidly against ratification. The so-called "Massachusetts Compromise" carried the day in New Hampshire.

The compromise was to ratify the Constitution now and amend it later.

The rest, as they say, is history.

Continuing down that slippery slope

On the morning of September 11, 2001, a total of 2,977 folks lost their lives in the terrorist attacks that felled the World Trade Center and damaged the Pentagon. The 19 men who carried out the attacks were killed in the course of the crimes.

Osama Bin Laden emerged as the primary suspect behind the hijackings. Evidence pointed toward the involvement of al-Qaeda. Bin Laden made admissions over the years that he was responsible for the attacks.

Under the law of parties, Bin Laden was as culpable as the men who actually hijacked the planes and crashed them into the buildings. He could have been charged with a myriad of crimes in several different jurisdictions.

The US Navy Seals who carried out their mission last week did not possess either an arrest or a search warrant. They broke into a dwelling displaying weaponry. They killed an unarmed man. (I say unarmed because the story surrounding what really happened changes from day-to-day and if there were some proof that Bin Laden was armed we would have seen photos or heard about it by now. The very fact the government keeps changing its account is enough to tell me that he was unarmed at the time of the shooting.)

The men who raided the compound intended to kill Bin Laden according to statements made by the US Attorney General Eric Holder:

‘The operation in which Osama bin Laden was killed was lawful,’ he said. ‘He was the head of Al Qaeda, an organization that had conducted the attacks of Sep 11. He admitted his involvement and he indicated that he would not be taken alive.'

‘The operation against bin Laden was justified as an act of national self defense,’ he said.
It was lawful to target an enemy commander in the field and the mission was conducted in the way that was consistent with US laws and values, Holder testified, adding that it was a ‘kill or capture mission.’

‘If he had attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that. And therefore his killing was appropriate,’ Holder said.

I'm not quite clear on how the killing of an unarmed man in another country by US citizens is "consistent with US laws and values." I understand that Mr. Holder is but a mouthpiece for the administration, but for an officer of the court to suggest that anything about this mission was consistent with our laws is disingenuous at best and outright hypocrisy at worst.

Jamison Koehler had an interesting post on Monday dealing with Americans overseas who seem to think that the Constitution protects them when they do something they're aren't supposed to do. It doesn't. Just like your parents' rules didn't protect you when you spent the night at a friend's house, our laws do you no good should you decide to smuggle dope into another country.

But where Mr. Koehler got off track was when he posited that Bin Laden wasn't entitled to any due process rights under the US Constitution at the time he was killed.

But I don’t agree with Kennedy when he uses this argument in connection with the extrajudicial killing of Osama Bin Ladin in potential violation of international law. While the U.S. Constitution does in fact apply to the actions of the American seals who raided Bin Ladin’s compound, and to the President who authorized that raid, it is a stretch to argue that Bin Ladin himself enjoyed any “due process” rights under the U.S. Constitution.

Bin Laden was wanted in the United States for crimes committed on American soil (or in American airspace). The raid was conducted by US military forces. We're not talking about some trigger-happy Pakistani soldier here, we're talking about a raid authorized by the President of the United States (and if I remember correctly, he took some oath in which he promised to abide by the Constitution).

The issue is not where the killing took place. Bin Laden was in American custody when he was killed. He was accused of a crime in the United States. He was entitled to his due process rights.

It's all relative

It's the middle of the night. Police surround a house. At the designated signal the front door is kicked in and officers storm the dwelling. The people inside the house see nothing but high powered flashlights and guns. They hear strangers shouting and threatening to shoot.

The officers continue through the house until they find the object of their raid. The man is unarmed. Instead of taking the man named in the warrant into custody they take him into another room and shoot him once in the chest and once in the head.

Maybe the evidence was overwhelming that the suspect was guilty as charged. We'll never know for certain because the police played the role of judge, jury and executioner. The dead man was, by law, presumed innocent. He was entitled to due process of law. He was entitled to a trial before a jury. He was entitled to consult with an attorney before making any statements once taken into custody. He was entitled to confront the witnesses against him and to put on evidence in his behalf.

Those rights were snuffed out in the blink of an eye.

What would your reaction be? What if he were charged with armed robbery? Aggravated assault? Murder? At what point is it acceptable to deprive the accused of his rights under the law? What if wasn't a citizen of the United States? What if the police officers were serving a warrant from another country?

The Constitution makes no distinction between the rights afforded to citizens and noncitizens. The Constitution makes no distinction between the rights afforded to a man accused of murder and a man accused of DWI.

Osama Bin Laden was accused of masterminding a criminal act of horrific magnitude in the United States. Mr. Bin Laden was unarmed at the time he was killed. No matter how heinous the crime of which he was accused, Mr. Bin Laden was entitled to his due process rights.

But the Navy decided to take justice into its own hands. The deprivation of rights is never anything to be cheered. Particularly by men and women who swore to defend the Constitution. If Bin Laden is not entitled to the protections afforded by the Constitution, who's next in line to lose their protection?

Up in arms about an illegal search? How about a Miranda violation? Didn't get your Brady material? Did you cheer the news of a killing in Pakistan? A killing that violated a man's rights?

We don't defend an individual as much as we defend the Bill of Rights. We don't defend what a person may or may not have done so much as we defend his rights under the Constitution. Sometimes it can be distasteful, but even the worst among us deserves his rights. That's what we do.

This is supposed to a nation of laws; but I suppose that's all relative.

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.

I'm a (true) believer

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

Texas Code of Judicial Conduct, Canon 3(b)(6)

Oh, Murray, Murray, Murray.

Don't speak so quickly. Have you forgotten that there was a Thirteenth Apostle (the Christian equivalent of George Best, I suppose)? I'm sure if we look long and hard enough that somewhere we'll find a testament written by some guy named Murray claiming to be that long lost apostle. Maybe that's who wrote the alleged Christian texts found in a Jordanian cave between 2005 and 2007.

(By the way, Murray, I liked the old layout better. I'm getting older and it hurts my eyes. There's always Google Reader, though.)

Another Houston colleague, Eric Davis, chimed in with a defense of Judge Clinton's using the bench as a pulpit. I understand what the judge gave as his motivation to offer "Jesus time" in lieu of community service. There are too many judges out there who just line up defendants and bring out on the chain for a mass plea (about how you'd expect the Rev. Sun Myung Moon to do it if he were a judge and not a huckster whatever he is). The problem though is that Judge Clinton was imposing a religious test in determining a person's sentence. And that, no matter how "divine" the intention, is just plain wrong.

Wiping out eight hours of community service in exchange for a person writing an essay about what it means to be on probation? Excellent idea. Discussing Jesus over coffee in exchange for wiping out the rest? Not so good.

This idea that having someone read a Christian self-help book will help them turn their lives around is fairly laughable when you stop to consider that some of history's greatest mass murderers were "God-fearing" men and that the Catholic Church conspired to cover up the world's largest child molestation ring. Just because you accept Jesus Christ as your savior or because you've completed a bunch of workbooks in Sunday school doesn't mean you're a saint. And, conversely, just because you're not a Christian (which I guess would be the majority of our fellow denizens of the earth), doesn't mean you're bad.

And just what is the message in Judge Clinton's book?

The origin of all problems–family, finances, career, relationships – can all be traced back to a single source: life-dominating sin. No human remedy can cure it. But everyone can find victory over sin in the Word of God.

Yes, you can also have victory over life-dominating sin, based on two biblical principles remarkable in their simplicity:

1. There is no human remedy for sin.
2. The only cure for sin is in Christ.

So, unless you subscribe to these principles, you can never achieve "victory over life-dominating sin." In other words, "I'm right and you're wrong."

Mark Bennett got it right when he looked at it from the perspective of the folks who didn't get offered the "I'm a Believer" discount. I don't think either of us is being alarmist when we ask whether the 4th, 5th or 6th Amendments are safe in Judge Clinton's courtroom.



This isn't a religious debate. I'm all for whatever people need to get through each day. I happen to prefer to lace up my running shoes and run around the neighborhood before the sun rises - but that ain't for everyone.

During the course of a meeting of the board of the Harris County Criminal Lawyers Association yesterday (called for the purpose of deciding what action, if any, to take regarding this incident), a member (who had spoken to Judge Clinton at the behest of the president) decided it would be a good idea to bring his new buddy, the judge, to the meeting.

And there he was, wearing a suit with a huge cross lapel pin. A true believer. The judge said he asked selected probationers if they were men of faith. He then asked if they were Christians. If he got the answers he was looking for, he offered them some "Jesus time" instead of community service. How could he not know that wasn't right?

In the end the leadership of HCCLA tucked its collective tail between its legs and decided not to do anything. Something about massaging the judge instead of stepping on him.

Said Stanley Schneider, past president of the Texas Criminal Defense Lawyers Association:

“I think this is a man that we really need to get behind. Anyone who wants to take the innovative, and trying to do something to help people in his courtroom to succeed in life, he’s someone we need to applaud.”

Dottie Griffith of the American Civil Liberties Union of Texas (who filed a complaint against Judge Clinton) had a slightly different take:

“The idea that a judge would use the power of the bench to coerce individuals appearing before him into accepting his religious beliefs offends the Constitution and should offend all Houstonians. If true, Judge Clinton’s actions are patently illegal.”

See also:

"Judge's sentence involving Christian book causes controversy," KHOU-TV (3/28/2011)
"Reading lesson for cons was Christian book," Houston Chronicle (3/29/2011)

Paper training for judges?

What is the proper response when you have evidence that a judge has violated the Constitution in the course of suspending someone's sentence?

How do you react when a judge asks a defendant entering a guilty plea whether or not he believes in Jesus?

Do you (a) send someone to have a private heart-to-heart with the judge, or (b) file an ethics complaint? Do you accept an explanation that the judge didn't realize he was doing anything wrong, or do you call bullshit based on the politics of the folks he keeps company with?

Is it even that big a deal? We are, after all, supposedly a Judeo-Christian nation. The Founding Fathers, however, were Deists who brought a whole different perspective to the dinner table than evangelical Christians.

If you launch a head-on assault on the judge, do you risk turning the Bible-thumping Teabaggers out in greater numbers to vote for judicial candidates with R's after their names? Or is it politics be damned, it's time to take a stand?

If we make a big stink about it, do we make it harder for any clients we may have who find themselves in that court? Or, do we stand for principle?

I will say this, I find it hard to believe in this day and age that a man could practice family law and then run for a criminal court bench without having a clue that religion has no place in the courtroom. The path to the Republican nomination in Harris County is to pander to the Christian right - and that means putting God "back" in government. That dynamic isn't going to change -- the nature of our political process means that candidates on the extreme fair better in party primaries than candidates in the mainstream; in the general election, however, both candidates move toward the middle and hope that no one was paying attention to the primary season.

If a judge knows that if he crosses the line all he'll get is a chat over coffee with a defense attorney, where's the harm? On the other hand, if a judge realizes he might get slapped with an ethics complaint, he, and his colleagues, will think twice.

Maybe this situation is touchy because no one wants to be seen as being opposed to religion. I think there are some folks out there who are afraid to confront a judge because they don't want the judge to take it out on their clients. Well, if that's the case, the judge will have future complaints on his plate for acting vindictively.

Futhermore, our very presence in the courtroom pisses off judges. Just think of how efficiently the docket would move if there weren't defense attorneys pushing for better deals and challenging the legality of police conduct. Without us mucking up the works, just imagine how many cases would plead out on the first setting in plenty of time to get a round in that afternoon.

It's a matter of principle, not expediency. If a judge is going to be so cavalier as to ignore the First Amendment's prohibition of state-sponsored religion, how's he going to treat the Fourth, Fifth and Sixth Amendments?

Just like that cute little puppy that left you a present in the living room; sometimes you have to stick his nose in it.

Preaching from the bench

"Do I ever have a deal for you. I know you don't have time to do all that community service you will be assigned as part of your probation -- so what would you say if I were to waive it in exchange for you reading something instead? Sounds pretty good, so far, doesn't it?


I'll tell you what. If you'll read this bible study book that I've written, I'll waive all of your community service hours. Sound like something you'd like to do? It's a whole lot more convenient than having to get up and go somewhere for some forced "volunteer" work, isn't it?


Hey, while we're at it, here, before you enter that plea, do you believe in Jesus?"

I'm sure that's not exactly how the talk goes when entering a plea in Harris County Criminal Court at Law No. 4,  but it is apparent that Judge John Clinton hasn't spent much time reviewing the Establishment Clause. It is also apparent that the judge either doesn't know, or doesn't care, that there are many religions around the world that don't exalt Jesus as the earthly embodiment of God. A trifling detail, I know.

I wrote about Judge Clinton when he was still candidate Clinton prior to last November's election. Judge Clinton is a retired police officer who was allowed to attend law school while working so long as he promised not to practice criminal law. He and his wife opened up a family law practice. That's his experience. At least the black-robed prosecutors judges who went directly from the DA's Office to the bench have experience in criminal law.

When asked why he was running for the bench, Judge Clinton replied:

This race is important because I see these as gateway courts. Often, young criminals make their first stop here. We have to make a firm impression on them. We must also protect the rights of both the accused and the victims. I think that often we look beyond the victims and what they are going through when crime enters their lives. These courts play a vital role in keeping our community safe and secure.

Excuse me, your Honor, the last time I checked, the Constitution laid out the rules that protect the citizen accused. The duty of the judge is to ensure that the accused's constitutional rights are protected from the time he is approached by the police until the time the case is resolved. It is the defendant who has the right to a fair trial and due process -- not the state and not the alleged victim.

That's right, until the state has proven beyond all reasonable doubt that a criminal act has taken place, there is no victim. There is a complaining witness or an alleged victim - but that's it. Using the word victim implies that one has already decided that a criminal act took place.

He then went on to say

I am the candidate with the practical experience and the perspective we need in this court. I will always look out for victims and protect the Constitution. These courts play a vital role in protecting our community. That's something I've been doing my entire adult life.

Judge, the role of the courts is not to protect the community. The role of the courts is to ensure that a person accused of a crime is afforded a fair trial and due process of law. Protecting the community is a task assigned to law enforcement agencies, not the men and women wearing black robes sitting behind an ornate raised desk.

While Judge Clinton is forcing his religious beliefs on the people in front of him, he might want to take a look at Matthew 7:1 --

Judge not, lest ye be judged.

Let's face it, when the only qualification for a judge is whether or not there's an R or a D after their name, we get exactly what we deserve.

Intellectually dishonest or just full of it?

With Supreme Court Justices Scalia and Thomas espousing original intent -- along with a gaggle of Tea Partiers and right wing Republicans -- an article I came across in Salon asked what original intent would look like today.

To begin with, the original document was silent on the right to vote. Voting rights were largely a matter of state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older. The original Constitution did not allow for direct popular voting for president or the United States Senate, and there was no clear language even allowing for voting for members of the House of Representatives.

At the dawning of the Republic, those who could vote would cast their vote for electors who would select the President of the United States. Women, blacks, teenagers and those without property had no say. The mind shudders to think how some states might attempt to restrict the right to vote.

The original Constitution didn't include a Bill of Rights. Alexander Hamilton, one of the framers and authors of the Federalist Papers, argued against it. The Bill of Rights protects many rights the Tea Party considers hallowed, such as the freedom of speech and assembly and a right to bear arms. Lacking a Bill of Rights, these freedoms wouldn't be protected against limitation by the national government.

Yet more evidence that those believing the Constitution should be interpreted as if the Founding Fathers were asked have no idea what the intellectual consequences of such folly would be. Those that espouse that view also think the 1950's were an idyllic time in this country; conveniently forgetting about segregation and the great Red Scare.

Now, even if you want to attach the Bill of Rights to the Constitution for purposes of deriving original intent (and such a proposition would be iffy since the Constitution made no mention of those protections associated with the Bill of Rights), as written, the Bill of Rights only prohibits Congress from infringing upon certain rights -- there is no prohibition against action by the individual states.

But even if we consider the Bill of Rights, which was adopted in 1791, to be part of the original Constitution, there are still many limits on its use. Most importantly, as written, the Bill of Rights limited only national power -- not state power...Subscribe to an original intent reading of the Constitution and states are free to disregard individual rights, including free speech, property, religion and others.

Relying on original intent we would still have slavery as it was legally ended by the passage of the 13th Amendment. Blacks would still only count as 3/5 of a white man when it comes to votes and there would be no laws against segregation.

The Supreme Court would have no authority to interpret laws passed by Congress since the Constitution makes no mention of the Court's power to interpret the law.

Of course, if we followed the logic of original intent the United States would be involved in far fewer conflicts around the world as Congress would have the sole power to declare war. Not to mention that if we include the Bill of Rights, los federales would be unable to conduct warrantless searches. Federal criminal dockets would be a lot smaller since treason would be the only federal crime.

Ultimately the problem with original intent is that we have no idea what those men intended when they sat down to draft the Constitution. The Continental Congress may have gone into session to amend the Articles of Confederation with lofty political and philosophical aims but, once they got behind those doors, good ol' horsetrading was the coin of the realm.

If I can't figure out what my wife means at times, how on earth can we expect to know what a group of wealthy landowners meant when they met over 225 years ago? It defies all logic.

Casting a light on the underbelly of the city

For months the Harris County District Attorney's Office fought to prevent the video of Chad Holley being beaten by members of the Houston Police Department from the public.

I'm a criminal defense attorney. It's my duty to defend the Constitution - regardless of how unpopular the cause might be. Some of my colleagues are defending the officers accused of beating Mr. Holley while he was down and defenseless.

One of my colleagues, Mr. Chris Tritico, wrote an opinion piece for the Houston Chronicle yesterday in which he argued against the release of the video. He argued that the video should have been kept under wraps until the officers stood trial for their alleged misdeeds.

I was as disturbed by the images on the Holley video as anyone. That is why Harris County District Attorney Pat Lykos got it right the first time. This video should have been seen for the first time in the courtroom. The court of public opinion is not the place to try these officers or anyone else.

Unfortunately Mr. Tritico aligned the interests of the Harris County Criminal Defense Lawyers Association (of which I am a boardmember) with that of the Harris County District Attorney's Office. Ms. Lykos did not "get it right" when she fought tooth and nail to prevent the public from seeing that video. Ms. Lykos wasn't concerned with whether or not the officers involved received a fair trial. That's never been the concern of the DA's office.

Ms. Lykos was scared of how the public would react to seeing what those of us in the courtroom know happens more often than anyone cares to admit. She was scared to death of how the public would react to the knowledge that those who are sworn to protect us and uphold the law are a lawless force unto themselves. She was scared that juries, having seen the video, would believe defendants who testified that they were beaten by the police. She was scared that juries wouldn't give the boys in blue the benefit of the doubt when questions arose regarding the legality of a search. She was scared juries wouldn't put their blind trust in the testimony of a police officer on the witness stand.

The release of this video, its airing and the rush to judgment by those who know better is a direct assault on the Bill of Rights. Lawyers on both sides of the docket have opined after the video was made public that these defendants will have a hard time getting a fair trial now. They are absolutely right.

The airing of the video is not an assault on the Bill of Rights. The video was obtained through the discovery process in a civil proceeding. A private citizen provided local television stations with copies of the video. The video ran on the evening news. There was no state action to deprive the officers of their right to a trial by a jury of their peers. There was no illegal search. The officers' right to remain silent was not violated.

A civil judge need not be concerned with the goings-on at the criminal courthouse. A criminal judge has no more authority than a civil judge.

The assault on the Bill of Rights is a daily battle fought at 1201 Franklin. The police, prosecutors and judges are all complicit in laying siege to our constitutional rights.

Our Constitution will be rendered a nullity the day that we take away any of the rights given to the people simply because we do not like what someone has been accused of doing. This includes the right to a public trial by an impartial jury and the fact that everyone accused of a crime is presumed innocent until proven guilty by that same impartial jury.

Our Constitution will also be rendered a nullity should we decide to ignore the First Amendment because the information may not be favorable to our position. Outside a protective order in the civil case, no agency of the state had any authority to prevent the video from being shown on the local news.

And, make no mistake about it, this is news. From a young age we are told the police are here to help and protect us. Most folks still believe that. Those of us who work in the trenches know the truth. We know that officers lie under oath. We know that officers plant evidence. We know that officers bend the truth in their offense reports. We know that officers beat and kill people. It's an ugly truth. It's a truth that I fight with when my daughters ask me about the police. If no one trusts the police society begins to break down.

I can assure Mr. Tritico that there will be twelve citizens who have no clue whatsoever what happened to Mr. Holley. There are plenty of people in this city who haven't the slightest idea what's going on outside their little bubble.

Lest anyone be confused, although I serve on the board of the HCCLA, in no way do I represent that I speak for the organization. I speak for myself.