A New Year

What a year 2009 was! As we bring 2009 to a close, I would like to wish everyone a Happy New Years! May all of your objections be SUSTAINED! in 2010. Don't waste your life (video).

A Decision Long Overdue

Yesterday Harris County District Attorney Pat Lykos announced that their office would no longer prosecute crack-pipe residue cases as felonies, but will issue a summons for a Class C drug paraphernalia case instead. The decision has prompted some criticism, but is long overdue. Anyone who works in the systems and gazes at this change in policy without agenda-clouded, political glasses knows that it makes sense from both sides.

From a law enforcement stand point, this change in policy will free up much need space in the Harris County jail. Most people charge in residue cases get short county jail sentences. Their stay in the county jail, although brief, contributes to overcrowding. The last few years, voters have SUSTAINED! opposition to proposals to increase taxes for the building of a new jail by rejecting them at the polls. The struggle to manage overcrowding at the county jail has led to the Sheriff shipping inmates as far as Louisiana and Texarkana while they await trial. This of course results in added expense to tax payers. Moreover, these case are riddled with proof issues. In addition to employing a chemist to engage in microscopic analysis (more analyis than a normal controlled substance case) to test the pipe to determine the presence of a controlled substance, law enforcement officers have the added burden of proving that the accused person knew that a pipe had residue in it and that they knew the residue was a controlled substance. The task of proving these cases occupies a felony prosecutor and a felony court which could otherwise be focusing on a homicide or other violent crime. In a time of scarce resources, Harris County is obligated to utilize its resources wisely.

From a defense standpoint, most of the people accused of crack pipe cases are non-violent drug users - who are generally in need of some form of rehabilitation. In Justice of the Peace (JP) court, where class C misdemeanors are prosecuted, Judges are able to send people to drug treatment. The District Attorney's Office handles the prosecution of these cases and can add the completition of any substance abuse treatment as a condition of any plea bargain. At the JP level, the cost of such treatment will be born by the person accused and not by the County. Furthermore, people who would not otherwise have a felony record would now avoid one. These people will be kept out of the cycle of getting a felony record and being denied employment and being pursuaded to commit crimes for economic reasons. Certainly, some people committ crimes to support drug habits, but prosecuting people for possession of drug paraphernalia as felons has done little to curb that. Additionally, after federal probes into treatment of inmates at the County jail found questionable practices and overcrowding issues. This decision may have the effect of easing some federal scrutiny.

It is politically risky for an elected official to make a decision which appears to take a soft stance on crime in Texas. Say what one wants about Pat Lykos.... but she had the guts to make a decision....a tough decision....one that was long overdue.

Image is Everything

If any of the allegations of the women who allege that they have been having affairs with Tiger Woods are true, then Woods has done a miracle maintaining his image. For a black man to have had that many affairs with white women and to have kept it a secret is astonishing. But even the best image consultants and spin doctors will have a difficult time taming the wild white elephant in the room – for more than the last decade Woods has been a black man dominating a sport normally reserved for whites.

I know… I know…. Tiger isn’t really a black man. His father is black and his mother was Asian. And he does not consider himself a black man. He considers himself a man. Or “Cablasian” as Woods says it. But let’s get real. Woods is a black man. If you saw him on the street and you did not know he was Tiger Woods, you would know that he was a black man. For years he has been acceptable to white America as long as he played phenomenal golf. It was hands off Tiger Woods. People idolized Woods merely for what he did as a sports figure. They did not see him as a black man. No one inquired about his political views or his views on moral issues. Tiger just played golf. He did nothing more and nothing less. In fact, he played golf so well that people did not care. As long as he wasn’t really a black man, he wasn’t really a threat.

But now that affairs with several beautiful white women have surfaced, white America’s love affair with Tiger Woods will be put to the test. And frankly, I do not think Woods’ image will survive. Numerous athletes have been noted to have had affairs in the past. Such a thing is common place amongst athletes. And many of those athletes are still held in high esteem. But none of them had won the trust of the white community like Tiger Woods. Whites were willing to look past his black face and see a great golfer.

Golf is an elite, predominately white sport. America is still the home of numerous exclusive private country clubs that still, in 2009, only allow whites. That’s right, there are numerous country clubs built around golf that do not allow blacks to play, eat or even use the restroom in their facilities. These clubs are frequented by republican congressmen and others in political office. In 2000, Tom Delay and Bob Ney hosted a golf event at a whites-only club near Philadelphia named the Aronimink Golf Club. South Carolina Republican Party chairman Katon Dawson, a 2009 candidate to head the Republican National Committee held a membership in a South Carolina whites-only golf club. Growing up in New Orleans, I remember learning of the New Orleans club and its history of being a whites-only golf club. I recall my first summer clerkship at a large law firm in New Orleans and being shocked when the hiring partner took all of the white law clerks out for drinks to the Boston Club – a whites-only club in New Orleans. Business deals were done and alliances were formed. Exclusion was a means of limiting access and maintaining power.

The NAACP, led by Charles Houston and Thurgood Marshall’s efforts, had numerous objections to Segregation in public places of accommodation SUSTAINED! But the protections of such laws do not extend to all private places. Tiger threatened to open that door. His roaring success had the potential of giving birth to numerous other minorities who could enter the sport. But that potential has never been reached. Unlike Venus and Serena Williams, Tiger Woods never reached into disadvantaged communities to help any aspiring players out of the womb of poverty. Wouldn’t it have been wonderful if Woods had used his fame and success as a golfer to highlight and eliminate exclusive golf clubs? But he always had his image to maintain and protect. Woods needed to be accepted by the white community. Perhaps the destruction of that image and fact that Woods will be held to a different, arbitrary standard will give Woods a glimpse of injustice and force him to come to grips with being a black man. Then maybe, he will rise to the challenge and try to maintain a different image.

No More Rubber Stamps

Earlier this week, the Missouri Supreme Court overturned a death sentence because a defense attorney failed to question the character of a murder victim who had child pornography on his computer. In that case, the high court acknowledged in its unanimous ruling that character evidence about murder victims typically is barred, but when relatives of the victim testified about his generous character during the sentencing phase of the murder trial, defense attorneys should have countered by highlighting the pornography on the victim's computer. Had the defendant's attorneys done so, the Missouri Supreme Court said, jurors may have been less inclined to sentence him to death for the July 2002 kidnapping, robbery and shooting. The Supreme Court sent the case back to a lower court for a new sentencing hearing.

The reasoning of the Missouri Supreme Court was unconventional, but made sense. It was a scouring look at a death penalty case in an attempt to make sure the ultimate punishment of the government was correctly applied. Before we are quick to exact justice, it only makes sense to be certain of the result. The Innocence Project has proven that too many innocent people have been imprisoned for substantial periods of their lives. Everything weighs against being uncertain in criminal cases. Hasty judgment has allowed real criminals to remain free, while innocent people went to jail for their crimes. The truly guilt are allowed to remain free to commit more crime when we do not seek certainty in judicial results.

Appellate courts are not supposed to be rubber stamps. Appellate lawyers are not suppose to just get a brief on file. We are required to challenge our client's conviction in any manner possible. And where appropriate, we are required to challenge the bounds of the law and the constitution. Our advocacy should seek to extend the protections of the law and constitution to our clients. Unfortunately, this has not been the case in Texas. Our Court of Criminal Appeals (Texas' criminal Supreme Court) has long been a rubber stamp for the prosecution. The Court of Criminal Appeals rarely overturns death penalty convictions. And based on allegations against Judge Sharon Keller, the Court may have even obstructed efforts to insure the constitutionality of the death penalty. Well-based objections to the constitutionality of government actions to restrict liberty should always be SUSTAINED! No high court should be a rubber stamp. Until we undress the prosecutors who have been masquerading in black robes, we will forever shoulder the tears of the innocent who lost years of their lives from a wrongful conviction.