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.

Exporting a bad idea

Even the Chief Justice of the Texas Supreme Court, Wallace Jefferson, thinks issuing Class C citations to students for "disrupting class" is a bad idea.

According to this article from the Guardian, Judge Jefferson thinks introducing children to the criminal (in)justice system is helping drive them to jail. Even the US Attorney General, Eric Holder, thinks it's a bad idea.

It appears that the British government is looking to take cues from the Lone Star State in dealing with juveniles. Crispin Blunt, the UK's justice minister, toured juvenile courts and detention centers in Texas this fall on a fact-finding mission.

Emulating the way in which Texas handles its school disciplinary issues will only succeed in introducing more young people to the criminal (in)justice system. The most common citation issued to students in Texas is "disrupting class." Can you imagine a more nebulous term? What constitutes a disruption serious enough to warrant charging a student with a criminal offense?

Do we really need to make kids miss class to attend court because they spoke out of turn? Because they made an inappropriate joke? Because they insulted another student? Because they took too long coming back from a potty break?

And what are the leaders of the Texas State Teachers Association took no position on the issue when the legislature last debated it. The head of the union said that most of his members are in favor of issuing criminal citations to students.

And what message is that sending? The job of our schools is to educate our youth, not to socialize them in the workings of the criminal (in)justice system. Those who support the current law, and those who take no position, are doing our children a grave injustice.

Instead of looking for excuses to enter people into the criminal (in)justice system, we should be looking for ways to keep them out.

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.