The Dallas Morning News is reporting the Third Court of Appeals in Austin, Texas ruled that Texas Child Protective Services had no right to seize more than 400 children living on the West Texas FLDS ranch. (h/t to my friend Ed Spillane for this lead) More to come.
Update: Text of Court of Appeals Opinion here.
A Criminal Defense Blog
Thursday, May 22, 2008
Tuesday, May 13, 2008
Are Bear Crawls the Answer?
Last week my son was involved in some horse-play with another boy during PE class. After getting a talking-to by the teacher, he and the other boy were subjected to what many consider corporal punishment. My son was required to do "bear-crawls" across the gym floor while the other boy did "wall-sits." Both methods of discipline caused a reasonable amount of physical discomfort (pain) and humiliation. Some parents were appalled the boys would be subjected to such treatment in this enlightened age of adaptive behavior. I backed the PE teacher 100%.
Last month, writing for the Washington Post, Penn Associate Professor Marie Gottschalk hypothesized our country was degrading into two separate societies: One in prison and one not. She noted:
At home, local prosecutors are less apt to resolve cases without jail time or a conviction. I recently represented a high school student caught by police carrying a cup of beer. She was under aged, scared, and told the police she was her sister and 21 years of age. Within minutes the officer deduced my client was lying. When confronted she owned-up to her lie. No more than two minutes elapsed from the lie to the truth. However, the officer arrested this 17 year old for making a false identification to a police officer. It was like pulling teeth for the prosecutor to consider reducing the case to a ticket level offense. They were dead-set on getting a conviction or putting this impressionable young girl on probation for a two-minute indiscretion. Why so hard I asked? "We see hundreds of these cases and we treat everybody the same."
I concluded the social experiment gone awry which Dr. Gottschalk debated was not the mass incarceration of our citizens. Rather mass incarceration was an unintended consequence of another social experiment gone awry - eliminating corporal punishment in homes and schools over the past 30 years. In other words, I don't think my son will be horse-playing anymore in PE class, unless, of course, he enjoys the bear-crawls.
How many of the 7 million people either incarcerated, on parole, or probation would not be consuming governmental resources had parents been more aggressive in the discipline of their children? How many of the 7 million would be free of the system had schools been free to use reasonable corporal punishment to adapt the behavior of misbehaving kids? I certainly understand the potential for abuse when using pain and humiliation to redirect behavior. But I also see how incarceration rates have increased in relationship to the elimination of corporal punishment in our schools.
I know. I know. It's not politically correct to spank children anymore. But maybe corporal punishment is part of the solution Kansas defense lawyers were talking about. If my kid's PE teacher wants to make punishment a memorable experience - something feared and something to avoid in the future - something that redirects behavior and makes my son act right, I don't have a problem with it.
So maybe we need to begin a new social experiment. Bear crawls and wall sits. It worked for my kid. Why won't it work for your's or any of the 7 million in the system already?
Last month, writing for the Washington Post, Penn Associate Professor Marie Gottschalk hypothesized our country was degrading into two separate societies: One in prison and one not. She noted:
The Pew Center on the States released a study in February showing that for the first time in this country's history, more than one in every 100 adults is in jail or prison. According to the Justice Department, 7 million people -- or one in every 32 adults -- are either incarcerated, on parole or probation or under some other form of state or local supervision.Last week in Wichita, Kansas the governor signed a bill prescribing tougher penalties for theft and sex crime offenders. Kansas state senators called the legislation a tough new stance on crime. Criminal defense lawyers remarked the state needed to focus on solutions to crime other than additional lengthy imprisonment.These figures understate the disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society. Today one in nine young black men is behind bars. African Americans now comprise more than half of all prisoners, up from a third three decades ago.
At home, local prosecutors are less apt to resolve cases without jail time or a conviction. I recently represented a high school student caught by police carrying a cup of beer. She was under aged, scared, and told the police she was her sister and 21 years of age. Within minutes the officer deduced my client was lying. When confronted she owned-up to her lie. No more than two minutes elapsed from the lie to the truth. However, the officer arrested this 17 year old for making a false identification to a police officer. It was like pulling teeth for the prosecutor to consider reducing the case to a ticket level offense. They were dead-set on getting a conviction or putting this impressionable young girl on probation for a two-minute indiscretion. Why so hard I asked? "We see hundreds of these cases and we treat everybody the same."
I concluded the social experiment gone awry which Dr. Gottschalk debated was not the mass incarceration of our citizens. Rather mass incarceration was an unintended consequence of another social experiment gone awry - eliminating corporal punishment in homes and schools over the past 30 years. In other words, I don't think my son will be horse-playing anymore in PE class, unless, of course, he enjoys the bear-crawls.
How many of the 7 million people either incarcerated, on parole, or probation would not be consuming governmental resources had parents been more aggressive in the discipline of their children? How many of the 7 million would be free of the system had schools been free to use reasonable corporal punishment to adapt the behavior of misbehaving kids? I certainly understand the potential for abuse when using pain and humiliation to redirect behavior. But I also see how incarceration rates have increased in relationship to the elimination of corporal punishment in our schools.
I know. I know. It's not politically correct to spank children anymore. But maybe corporal punishment is part of the solution Kansas defense lawyers were talking about. If my kid's PE teacher wants to make punishment a memorable experience - something feared and something to avoid in the future - something that redirects behavior and makes my son act right, I don't have a problem with it.
So maybe we need to begin a new social experiment. Bear crawls and wall sits. It worked for my kid. Why won't it work for your's or any of the 7 million in the system already?
Wednesday, May 7, 2008
The Rudder of Our Free Expression
Over at the "Criminal Defense" blog, Miami criminal defense lawyer Brian Tannebaum published an intriguing post about his belief the criminal defense bar has been gutted by fear. Although I'm not in total agreement with his premise, I recognized his post was written from the heart and I always appreciate courage in a fellow defense lawyer.
Brian noted he'd authored a piece about a local judicial election where he remarked how the judges running for office suddenly became "nice" during their campaigns. Brian said he began getting calls from judges, upset he would publish his thoughts for the voting public to see. Bottom line? Brian backed down and removed the post, which he deeply regretted.
Brian articulated the difficult relationships that might result because of his honesty. He worried clients would suffer adverse consequences might they come before the judges Brian had ruffled during the campaign:
So, I applaud Brian for his courage to admit a serious mistake. The mistake of letting fear guide the rudder of his free expression. I look forward to the next election and how he might expose those problems in the system that need to be fixed.
Brian noted he'd authored a piece about a local judicial election where he remarked how the judges running for office suddenly became "nice" during their campaigns. Brian said he began getting calls from judges, upset he would publish his thoughts for the voting public to see. Bottom line? Brian backed down and removed the post, which he deeply regretted.
Brian articulated the difficult relationships that might result because of his honesty. He worried clients would suffer adverse consequences might they come before the judges Brian had ruffled during the campaign:
I regret taking it [the post] down. I actually don't have it anymore. Wish I did, because today, I'd put it right back up. I'm embarrassed I fell to the pressure of a few judges who for some reason didn't like my commentary . . .Recognizing his failure to stand up for what he truly believed, Brian declared:
Few defense lawyers would dare publicly say that judge so and so did something they thought was wrong, or that a prosecutor is chronically unreasonable, or that one of their own stole a case from them by undercutting their fee just to pay the rent. Sure we have our rules of professional responsibility, but what about our obligation to be advocates and not just businessmen and women.
What happened to us, the criminal defense bar? Is it our job to stand up for justice, or merely to make sure we don't piss anyone off while representing those that the "Law and Order TV Generation" feels don't deserve more than an hour of legal process (including a confession to the prosecutor in his office)? Has it become all about the business of our profession?Although Brian's experience was largely anecdotal he finally seemed to have discovered the outlet for his individual voice. For those of us who blog and affix our names to our opinions, it can be very edifying to see our writings affecting thought, careers, maybe even elections. The justice Brian seeks requires us to step out on a limb and tell others how we see it, whether we write about prosecutors, judges, or other lawyers. When we share our introspection with dignity, when we tell the truth, and when we leave our hurt feelings, anger, and personal inadequacy on the sideline, we shed light on the inner workings of a system that often needs fixing. What better way to help fix a problem than by exposing it.
So, I applaud Brian for his courage to admit a serious mistake. The mistake of letting fear guide the rudder of his free expression. I look forward to the next election and how he might expose those problems in the system that need to be fixed.
Monday, May 5, 2008
Finding Truth is TV Law
Much to the dismay of prosecutors around the State of Texas, the purpose of a criminal trial is not to discern the "truth." Rather the purpose of a trial is to resolve a dispute between the government, who carries the burden of proof, and the accused.
I've thought about this today while reading the plethora of posts from, Grits, Simple Justice, Robert Guest, and others about Craig Watkin's call for criminal sanctions against prosecutors who withhold exculpatory evidence from the defense while seeking convictions. TDCAA message board posts from prosecutors piqued my curiosity about the true aim of criminal trials in America. From prosecutor Stacey Brownlee:
No. The notion of trial as a vehicle for finding truth is TV law. You won't find this aim in the Constitution, the Code of Criminal Procedure, the Penal Code, or the Rules of Evidence. Rather, trial is simply a means by which disputes are resolved. Truth finding is, at best, an afterthought. At worse, it's a fiction created by the side bearing the burden of proof to shift and lessen it to more easily obtain convictions.
I've thought about this today while reading the plethora of posts from, Grits, Simple Justice, Robert Guest, and others about Craig Watkin's call for criminal sanctions against prosecutors who withhold exculpatory evidence from the defense while seeking convictions. TDCAA message board posts from prosecutors piqued my curiosity about the true aim of criminal trials in America. From prosecutor Stacey Brownlee:
I've got no problem with something like this (bar sanctions not criminalization) as long as its not just for prosecutors but for the defense too. If its the truth we are looking for, let's get to the REAL truth !!From Rob Kepple:
. . . let's assume we want to criminalize failure by a prosecutor to turn over exculpatory evidence.Prosecutors have long enjoyed jury arguments about discerning truth. Such arguments lessen the government's burden of proof and shift it to the accused. But a defense lawyer would be foolish to object before the jury. Can one imagine what the jury would think while a defense lawyer argued "we are not here to find the truth?" I was taught this tenet of governmental jury manipulation in baby prosecutor school years ago.
If that is the policy of the state, seems that in the post-conviction world we would also want to criminalize the failure of a habeas/defense attorney to turn over any INCULPATORY evidence at that stage. That includes, of course, impeachment material, criminal records, witness statements -- everything that supports the existing conviction that today falls under Brady for the prosecutor when it comes to negating guilt or reducing punishment.
No. The notion of trial as a vehicle for finding truth is TV law. You won't find this aim in the Constitution, the Code of Criminal Procedure, the Penal Code, or the Rules of Evidence. Rather, trial is simply a means by which disputes are resolved. Truth finding is, at best, an afterthought. At worse, it's a fiction created by the side bearing the burden of proof to shift and lessen it to more easily obtain convictions.
Prison Time for Prosecutors?
An intriguing article in the Dallas Morning News yesterday highlighted the call by Dallas County DA, Craig Watkins, for Texas legislation supporting criminal charges for prosecutors who withhold exculpatory evidence from the defense. (see AP story here) Rodney Ellis, Texas State Senator, who authored law creating the compensation system for wrongfully convicted inmates said he would support the criminalization. The Dallas Morning News reported further:
Wouldn't this light a fire under the backside of prosecutors all over Texas? But the prosecutor lobby is strong in Austin and the chances of such legislation passing are very low. I like the idea and the debate, though. Such laws would keep the prosecution constantly on the look-out for evidence exculpatory to the accused. Further, I see nothing wrong with holding prosecutors to a high standard with very harsh consequences for those who intentionally sidestep the rules. The tougher issue? What sanctions would be appropriate for a prosecutor withholding evidence by their negligent or reckless conduct? Maybe a discussion for another day.
Wrongful convictions, nearly half of them involving prosecutorial misconduct, have cost Texas taxpayers $8.6 million in compensation since 2001, according to state comptroller records obtained by The Dallas Morning News. Dallas County accounts for about one-third of that.In the same vein, Ellis said:
Of the 45 wrongful conviction cases for which [Texas] has paid compensation, at least 22 involved prosecutors withholding evidence from the defense.
. . . the total amount paid so far confirm[ed] his suspicion that wrongful convictions are far more common in Texas than people realize. Taxpayers should expect to pay "considerably" more as the number of exonerations rises.Currently, there is no law in Texas allowing criminal charges for prosecutors who intentionally withhold exculpatory evidence. But the Innocence Project of Texas plans to push for such laws in the next session of the Texas legislature.
Wouldn't this light a fire under the backside of prosecutors all over Texas? But the prosecutor lobby is strong in Austin and the chances of such legislation passing are very low. I like the idea and the debate, though. Such laws would keep the prosecution constantly on the look-out for evidence exculpatory to the accused. Further, I see nothing wrong with holding prosecutors to a high standard with very harsh consequences for those who intentionally sidestep the rules. The tougher issue? What sanctions would be appropriate for a prosecutor withholding evidence by their negligent or reckless conduct? Maybe a discussion for another day.
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