Happy Birthday, America!
Monday, July 4, 2011
Sunday, July 3, 2011
The turning of the tide
While we celebrate this Independence Day weekend, let us not forget what happened back in 1863.
On July 1, 1863 Confederate troops invaded Pennsylvania looking for shoes and a way to cut Washington, D.C. off from the rest of the Union. The Confederates got the better of the skirmishing that day as Union forces retreated from the town to the hills surrounding Gettysburg.
General Robert E. Lee ordered his men to attack the flanks of the Union army, knowing that if he could get behind Meade's main force on Cemetery Ridge he could cut the Army of the Potomac off from its supply and communication lines. The hero of the day was Joshua Chamberlain who led a regiment of soldiers from Maine. They were the end of the Union line on Little Round Top. They repelled assault after assault after assault the entire afternoon and never broke.
The following day, July 3, 1863, Lee made his plans to attack what he thought was the soft spot of the Union army - the middle. He assumed that Meade would have reinforced the flanks expecting another assault like the previous day. He was wrong.
In the early afternoon hours an artillery barrage shook the countryside as Union and Confederate cannons rained shells for over two hours. Finally, a little after three o'clock, Gen. George Pickett led the charge up Cemetery Ridge. Confederate soldiers had to march 1700 yards across a meadow to get to the ridge. Once they were in range of Union artillery, they were under fire until the battle ended.
The target of Pickett's assault was a group of trees in the middle of the ridge. Despite the horrific carnage, Confederate forces actually reached the Union line before being turned away in bloody hand-to-hand combat. The Confederates knew the battle was over and retreated back to the woods at the bottom of the ridge.
On Independence Day the Union forces waited for an attack that never came. Lee had lost almost a third of his army and knew he had lost his best chance to win the war. That same day the city of Vicksburg, Mississippi fell after a siege that lasted almost two months. With the fall of Vicksburg, the Union controlled the Mississippi River.
Although the war would continue for almost two more years, the events of that first week of July 1863 marked the turning of the tide.
On July 1, 1863 Confederate troops invaded Pennsylvania looking for shoes and a way to cut Washington, D.C. off from the rest of the Union. The Confederates got the better of the skirmishing that day as Union forces retreated from the town to the hills surrounding Gettysburg.
General Robert E. Lee ordered his men to attack the flanks of the Union army, knowing that if he could get behind Meade's main force on Cemetery Ridge he could cut the Army of the Potomac off from its supply and communication lines. The hero of the day was Joshua Chamberlain who led a regiment of soldiers from Maine. They were the end of the Union line on Little Round Top. They repelled assault after assault after assault the entire afternoon and never broke.
The following day, July 3, 1863, Lee made his plans to attack what he thought was the soft spot of the Union army - the middle. He assumed that Meade would have reinforced the flanks expecting another assault like the previous day. He was wrong.
In the early afternoon hours an artillery barrage shook the countryside as Union and Confederate cannons rained shells for over two hours. Finally, a little after three o'clock, Gen. George Pickett led the charge up Cemetery Ridge. Confederate soldiers had to march 1700 yards across a meadow to get to the ridge. Once they were in range of Union artillery, they were under fire until the battle ended.
The target of Pickett's assault was a group of trees in the middle of the ridge. Despite the horrific carnage, Confederate forces actually reached the Union line before being turned away in bloody hand-to-hand combat. The Confederates knew the battle was over and retreated back to the woods at the bottom of the ridge.
On Independence Day the Union forces waited for an attack that never came. Lee had lost almost a third of his army and knew he had lost his best chance to win the war. That same day the city of Vicksburg, Mississippi fell after a siege that lasted almost two months. With the fall of Vicksburg, the Union controlled the Mississippi River.
Although the war would continue for almost two more years, the events of that first week of July 1863 marked the turning of the tide.
Texas court prevents disclosure of governor's travel vouchers
Rick Perry is the governor of Texas. He is the chief executive (a weak one thanks to the drafters of the Texas Constitution) of the state.
But, Gov. Perry likes to take out-of-state trips. When he travels out of the state he is accompanied by officers of the Texas Department of Public Safety. Some of these trips have something to do with governing the State of Texas while others are just junkets. More and more of Gov. Goodhair's trips are tied to his campaign for the Republican nomination for President.
But, whether a trip is necessary for the carrying out of his duties as chief executive or whether it's just an excuse to take a vacation, the taxpayers of Texas foot the bill. We foot the bill for travel. We foot the bill for security. And, during a time of austerity - when we are whacking billions of dollars from education - doesn't the public deserve to know where their hard earned dollars are going?
Two newspaper conglomerates thought we did and filed Open Records requests for travel vouchers for the governor's security detail.
Now I understand that some security is necessary -- but, for the most part, the security provided for the governor of Texas is just an exercise in ego-massaging. As important as Gov. Perry may think he is - most folks outside the state don't give a rat's ass who he is. But, in order to prove that he is a Very Important Person, the governor, and his wife, are always surrounded by a security detail. Think about that while your children sit in classrooms with 30 or more students for each teacher.
The Attorney General told the newspapers to take a hike because the information they requested was too sensitive and, if it fell into the wrong hands, harm could befall the Fair-haired one. The newspapers then took the matter to a judge who decided that the AG was wrong and that the information was subject to disclosure. An appeals court upheld that ruling.
Not satisfied with having to explain the expenses, the state begged the Texas Supreme Court to protect them from the public. The AG announced that releasing the details of past security details would have a detrimental effect on futurefreeloading travel by the governor and his family.
On Friday, the Texas Supreme Court ruled that the information requested was exempt from disclosure on the theory that disclosing travel vouchers for security details on pastjunkets trips would expose the governor to ridicule harm.
Let's be honest about this. The governor's reluctance to release the information had nothing to do with his safety (or that of his family). Gov. Perry didn't want the information released because he didn't want the taxpayers of Texas to know just how much of our money he spent making himself feel important.
Gov. Perry's all for limited government and reduced government spending -- as long as it doesn't affect him. Gov. Perry wants to keep his travel expenses secret at the same time he's telling the taxpayers that we can't afford to continue to fund education.
You see, that's Gov. Perry's idea of limited government -- we'll limit the services the government provides to the citizens of Texas while I travel around the world on the taxpayers' dime.
But, Gov. Perry likes to take out-of-state trips. When he travels out of the state he is accompanied by officers of the Texas Department of Public Safety. Some of these trips have something to do with governing the State of Texas while others are just junkets. More and more of Gov. Goodhair's trips are tied to his campaign for the Republican nomination for President.
But, whether a trip is necessary for the carrying out of his duties as chief executive or whether it's just an excuse to take a vacation, the taxpayers of Texas foot the bill. We foot the bill for travel. We foot the bill for security. And, during a time of austerity - when we are whacking billions of dollars from education - doesn't the public deserve to know where their hard earned dollars are going?
Two newspaper conglomerates thought we did and filed Open Records requests for travel vouchers for the governor's security detail.
Now I understand that some security is necessary -- but, for the most part, the security provided for the governor of Texas is just an exercise in ego-massaging. As important as Gov. Perry may think he is - most folks outside the state don't give a rat's ass who he is. But, in order to prove that he is a Very Important Person, the governor, and his wife, are always surrounded by a security detail. Think about that while your children sit in classrooms with 30 or more students for each teacher.
The Attorney General told the newspapers to take a hike because the information they requested was too sensitive and, if it fell into the wrong hands, harm could befall the Fair-haired one. The newspapers then took the matter to a judge who decided that the AG was wrong and that the information was subject to disclosure. An appeals court upheld that ruling.
Not satisfied with having to explain the expenses, the state begged the Texas Supreme Court to protect them from the public. The AG announced that releasing the details of past security details would have a detrimental effect on future
On Friday, the Texas Supreme Court ruled that the information requested was exempt from disclosure on the theory that disclosing travel vouchers for security details on past
Let's be honest about this. The governor's reluctance to release the information had nothing to do with his safety (or that of his family). Gov. Perry didn't want the information released because he didn't want the taxpayers of Texas to know just how much of our money he spent making himself feel important.
Gov. Perry's all for limited government and reduced government spending -- as long as it doesn't affect him. Gov. Perry wants to keep his travel expenses secret at the same time he's telling the taxpayers that we can't afford to continue to fund education.
You see, that's Gov. Perry's idea of limited government -- we'll limit the services the government provides to the citizens of Texas while I travel around the world on the taxpayers' dime.
Saturday, July 2, 2011
Where did he come from?
And at what point, if any, did our hero realize that something was (horribly) wrong? From the Houston Chronicle:
Sadly enough, this isn't the first pedestrian through a windshield story I've come across.
I have no idea whether Mr. Onak was intoxicated or not that evening. I'm fairly certain that had he remained at the scene the endgame of this said incident would be a bit more favorable to him. As a result of his not remaining at the scene, Mr. Ornak is facing a felony charge of an accident involving death.
Depending on the circumstances surrounding the accident, Mr. Ornak might actually stand a better chance to defend himself against a charge of intoxication manslaughter as the state must prove that the accident was caused by his being intoxicated. Having a pedestrian attempting to cross the freeway in the middle of the night is not a circumstance that any driver can reasonably anticipate facing while driving.
How much warning did Mr. Onak have that someone was trying to run across the freeway? What kind of clothing was the pedestrian wearing at the time? Under those conditions, would an ordinary driver with an alcohol concentration of less than .08 (or who had the full use of their mental and physical faculties) have been able to avoid the accident?
Unfortunately for Mr. Onak, by driving on he has handed the prosecution a gun and a golden bullet with his name on it. The state doesn't have to prove that the accident was avoidable. All they have to prove is that he was involved in an accident in which a man was killed and he didn't remain or return to the scene.
Information - Onak
A driver who hit a pedestrian along Interstate 45 in southeast Houston early this morning didn’t stop even though the victim smashed through his windshield and landed in the front passenger seat, officials said.
The driver, identified as 45-year-old James John Onak, was charged with felony accident involving injury in the 177th State District Court, according to a Houston Police Department news release.
The collision occurred in the 12200 block of the southbound Gulf Freeway near Fuqua about 12:30 a.m. Tuesday, according to the Houston Police Department.
Police said the 32-year-old victim, whose name has not been released, died at the scene.
No other injuries were reported.
Police said a man was driving his Ford Explorer on the freeway when it broke down. He pulled to the shoulder and got out and began trying to cross the freeway.
The man was hit by a black Mazda, driven by Onak, police said. Police said the collision forced the victim’s body through the windshield, and he landed in the front passenger seat inside the car.
Onak did not stop after the collision, police said. Police said he allegedly got off the freeway and drove a few blocks before a Precinct 8 Harris County Constable pulled him over at 11600 Kirkvalley near Beamer, and the deputy noticed the car’s front was damaged. Then the deputy saw the victim in the car, police added.
Police said Onak told the deputy he had hit something on the freeway and that he didn’t know the victim was in the passenger seat beside him.
Onak was believed to be under the influence and a mandatory blood draw was taken.I'm thinking the sound of a body crashing through the windshield and landing in the passenger seat would be enough to alert anyone that there was a problem.
Sadly enough, this isn't the first pedestrian through a windshield story I've come across.
I have no idea whether Mr. Onak was intoxicated or not that evening. I'm fairly certain that had he remained at the scene the endgame of this said incident would be a bit more favorable to him. As a result of his not remaining at the scene, Mr. Ornak is facing a felony charge of an accident involving death.
Depending on the circumstances surrounding the accident, Mr. Ornak might actually stand a better chance to defend himself against a charge of intoxication manslaughter as the state must prove that the accident was caused by his being intoxicated. Having a pedestrian attempting to cross the freeway in the middle of the night is not a circumstance that any driver can reasonably anticipate facing while driving.
How much warning did Mr. Onak have that someone was trying to run across the freeway? What kind of clothing was the pedestrian wearing at the time? Under those conditions, would an ordinary driver with an alcohol concentration of less than .08 (or who had the full use of their mental and physical faculties) have been able to avoid the accident?
Unfortunately for Mr. Onak, by driving on he has handed the prosecution a gun and a golden bullet with his name on it. The state doesn't have to prove that the accident was avoidable. All they have to prove is that he was involved in an accident in which a man was killed and he didn't remain or return to the scene.
Information - Onak
Friday, July 1, 2011
We hold these truths to be self-evident...
Here's a special shout-out to the folks who showed up at the Harris County Criminal (In)justice Center this morning for the reading of the Declaration of Independence. We had over 100 HCCLA members, attorneys and others in attendance for the reading.
Here are a few crowd shots...
Here are a few crowd shots...
Supremes to tackle confrontation again
The US Supreme Court is set to hear another case on what appears to be the biggest hot button topic in the courthouse - confrontation.
In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.
The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.
The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.
The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.
While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.
Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.
Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.
Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.
In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.
The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.
The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.
The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.
While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.
Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.
Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.
Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.
Celebrating the Fourth (of July) by gutting the Fourth (Amendment)
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. -- Declaration of IndependenceWhat better way to celebrate the anniversary of one of the most important documents in American history than to institute a statewide No Refusal Weekend for the Fourth of July?
Anyone who is pulled over for suspected drunk driving will have to either submit to a breath test or have their blood drawn. Officials say it takes as little as 15 minutes to secure a warrant for a blood draw and five minutes after that to get the blood drawn.Fifteen minutes to eviscerate the rights of the accused. Just fifteen minutes to determine whether or not probable cause exists to open a vein. Just fifteen minutes to order an invasive procedure for an offense that is but one step removed from a traffic ticket.
We can celebrate the Fourth by pretending that our Fourth Amendment right to be left alone doesn't exist. We all know there's no such thing as an unreasonable seizure when a man wearing a badge smells alcohol on the breath of someone driving a car.
We can celebrate the Fourth by pretending that our Fifth Amendment rights to remain silent and not to incriminate ourselves doesn't exist. DWI is the only offense in which a person choosing to remain silent and not incriminate themselves is legally used against them.
We can celebrate the Fourth by pretending that the right to counsel under both the Fifth and Sixth Amendments doesn't exist. Heaven forbid a person accused of drunk driving be allowed to consult with an attorney before answering any questions or performing roadside coordination exercises.
However you choose to celebrate the Fourth, be careful, be safe and don't become a victim of the police state.
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