A little shifting of the burden

My topic today is nothing new. I've written about it before - and I'm sure I will continue to write about it. Of course we're talking about the shifting of the burden of proof from the state to the defense in the jury charge.

Most counties use a so-called "charge bank" where the court reporter will pull out the boilerplate language found in each charge and the language specific to each case. If you dare to question the language you'll get a funny look and the judge will explain that this is way he's done it ever since he took the bench. No to mention that someone who edited a pattern jury charge book wrote it that way, too.

So what if that's how it's always done. There are plenty of things that were done a certain way until someone stood up to challenge them. Just because a judge has used the same language for the last ten years doesn't mean it's correct.

In a criminal trial, the state has the burden to prove each and every element of its case beyond all reasonable doubt. The defendant has no such burden. He is presumed innocent. If the state is unable to meet its burden, the defendant is not guilty and everyone goes home.

The sole duty of a jury is to determine whether or not the state has met its burden of proof. If it has, the defendant is guilty. Otherwise, he's not guilty. The jury is not asked to determine whether the defendant is innocent -- that would require the defendant to prove a point. Requiring the defendant to prove anything only serves to shift the burden of proof from the state to the defendant.

But never let details such as the presumption of innocence or the right to remain silent get in the way of a judge determined to do things the way they've always been done. Heaven forbid we make the court change the language in its precious pattern charge.

The latest offender? Judge Lonnie Cox in Galveston County. Per his standard charge:

"Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations to the issue of guilt or innocence of the defendant."

Really? And just where in the Texas Code of Criminal Procedure does it state that the job of the jury is to determine whether a defendant is innocent or guilty? For that matter, what about the Texas Constitution or the U.S. Constitution?

There is a world of difference between innocent and not guilty. One is not guilty if the state is unable to prove each of the elements of the alleged offense beyond all reasonable doubt. Innocent means you didn't do it, period.

But the charge in this case took burden shifting to a new level. Since the defendant is presumed innocent, the first option for the jury to choose is not guilty. Makes perfect sense. But not in the 56th.

Nope. The first selection for the jurors is to find the defendant guilty. Just think about that for a second.

If a person is presumed innocent, the default verdict should be not guilty; not the other way around. Placing the guilty option first implies that the defense must prove something in order to move the jury to vote not guilty.

Words to live by

I caught this on Moonshiners the other night. Jesse, the Virginia ABC agent was driving around talking about the moonshiner that got away...

"The bad guys gotta be lucky all the time. I only got to be lucky one time."

How true. How very true.

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.

A safer place to live

In 2006, there were 377 recorded murders in Houston. In 2011 that number dropped to 198 - the lowest per capita number since the early 1960's. The number of violent crimes in the city also declined. Interestingly enough, at the same time the murder rate dropped over 26% from 2010, the economy tanked.

Maybe there's not the relationship we thought between economic conditions and crime. What else might account for the change?

Surely it must be the deterrent effect of the death penalty. That's what the law and order types tell us. You remember the stanza - you let the state kill enough people and the rest of the riff raff will get the message that it just isn't okay to go around killing people.

Only that's not it, either. According to the Texas Execution Information Center, the number of inmates on death row has decreased over the last ten years. Texas murdered fewer inmates in 2011 than in any year since 1996.

I have no idea what accounts for the drop in the city's murder rate. I'm sure there are folks who are combing through data trying to come up with some theory to explain it. For all I know the drought caused the drop. Maybe people throughout the city were more worried about how to maintain some semblance of green in their yards than they were about offing someone who happened to be in the wrong place at the wrong time.

A little undue influence

The big political story Wednesday was Mitt Romney's "victory" in the Iowa caucuses. But with only 24.6% of the delegates, that means 75.4% of the delegates wanted someone other than Mr. Romney. The big winners would seem to be Rick Santorum who picked up 24.5% of the delegates and Ron Paul who garnered 21.4%.

Let's face it, Mr. Santorum is nobody compared to the machine the Romney operates. Romney spent enough money in Iowa to fund a Third World dictatorship while Mr. Santorum spent just a little over a million dollars. At the same time, Ron Paul, whose views are, shall we say, just a bit out of the Republican mainstream, came in a strong third.

I'm not interested in the fact that Mr. Romney beat Mr. Santorum by all of 8 delegates. I'm more interested in how he won by only 8 delegates.

And just why does Iowa get such disproportionate influence when it comes to picking a president? It's not like Iowa is in any way representative of the nation's population.

Iowa is 61% urban while the US is 82% urban. 

Iowa is 91.3% white while the US is 63.7% white.

African-Americans make up only 2.9% of the Iowa population versus 12.2% of the US population.

And it's not like New Hampshire is any more representative.

And that's the way the syndicate rolls

I'm currently in trial down on the island and my brain is fairly fried by the time I sit down to work after putting my girls down for the night. I had a picture of the sun setting over Galveston Bay that I was going to run but, for some reason, my phone has decided not to make that photo available at this time. Ditto for the shot of sunset over Pearland (admittedly not as cool).

Some night in the upcoming week, LSU and Alabama will play (once again) in the "national championship" game staged by the B(owl) C(artel) S(yndicate). Now, if memory serves me right, LSU already beat Alabama this season. And, it seems to me, that game took place in Tuscaloosa.

So what happens if Alabama wins the rematch? Does that make them the best team in the country all of a sudden? Wouldn't LSU have an argument that nothing's been decided? Isn't a loss at home worse than a loss at a neutral site? And what about that little detail that Alabama not only wasn't good enough to win their conference, they weren't even good enough to win their division.

Meanwhile, Oklahoma State beat Stanford the other night in the desert. Oklahoma State beat more ranked teams this season than Alabama. Oklahoma State beat more teams with a winning record than Alabama. Oklahoma State didn't play a lower division team in order to pad their record this season - Alabama did.

What was the difference between the two teams this year? First, Alabama lost at home to LSU while Oklahoma State lost on the road against Iowa State just a couple of days after the coach of the women's basketball team, and one of his assistants, were killed in a plane crash. Think that might've played a role in how a bunch of teenagers played that night in Ames? Second, Alabama began the season ranked higher than Oklahoma State. That was an advantage that the Cowboys could never overcome.

And that brings me to my final point - it's ridiculous that a preseason poll can determine who plays for the national championship at season's end. The voters decide where to rank a team based on how well they played the year before and how well the voter thinks they might play this season. This is college football - not the NFL - and teams undergo drastic change from season to season. Alabama's team this year was a different team than last year's Crimson Tide; and the same applies to Oklahoma State. But this faulty logic is now the basis for Alabama getting an undeserved invite to play LSU while Oklahoma State can only watch.

Book Review: When Capitalism Hits the Fan

Richard D. Wolff is an economist. Only he's not your father's economist. Dr. Wolff doesn't buy into neo-classical economic orthodoxy. He's proud to proclaim himself a Marxist and he shines the light on the inherent contradictions embedded in capitalism. His new book Capitalism Hits the Fan is a critical analysis of the American economy as it headed into the last recession.

I was listening to excerpts from one of Mitt Romney's stump speeches on NPR the other day and he spoke of how we needed to "modernize" the economy. He wants us to repeal laws and regulations promoting worker safety. He wants to make the labor force "more flexible." He wants to make it easier for companies to pick up and move and leave thousands of folks without work.

How is that modernizing our economy? Mr. Romney, and the offstage chorus of neo-classical economists, want to return to an era when the government stayed out of the labor market. He wants to return to an era in which folks were thankful just to have work and were willing to put up with anything in order to keep that paycheck coming.

As to the bromide that the market knows best - how did that work with the property bubble? What about the high tech bubble? What about the meltdown caused by the sale of derivatives? If the markets were the most efficient method of allocating resources we wouldn't have long-term structural unemployment or millions of Americans without basic health care coverage.

Richard Wolff's is a voice that should be heard. His writing and analysis is a welcome relief from those who espouse rolling back the status quo. Maybe the answer isn't just tinkering with what we've got. Maybe the solution is a complete restructuring.