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This week on the legal blogs. -

Monday, September 21, 2009

The Dallas Morning News has Governor Perry’s response to Texas’ execution of an innocent man in Cameron Todd Willingham. It involves the use of the phrase “so-called” and air-quotes to deride the fact that the state executed a man based on evidence and testimony that’s provably false.

Y’all might have had your hearts warmed by the story of the Grapevine, TX high school football coach who asked half of his team’s fans and cheerleaders to support the Gainesville State School team, consisting of kids in corrections. ESPN covered it. So did This American Life, national news throughout the country, and there’s apparently a movie underway about the coach. Grits for Breakfast has the two TYC teams’ schedule online now, including a Thursday night game in Austin on October 15. If you were moved by the story – and what are you, made of stone, if you’re not – it might be worth showing up to let them know that being supported isn’t just a one-time thing.

Also on the subject of high school football, an Ohio judge sentenced a teenaged boy who pled to an assault charge to five years of probation and barred him from playing team sports for that period. The story comes from Popehat.com, who rightfully point out that the other terms of his probation – finding full-time work in a state with over 10% unemployment or enrolling as a full-time student – may be difficult without the ability to engage his natural talents. Before the conviction, the boy was being scouted by a number of universities.

Slashdot.com, the somewhat over-reactive online community, is in a tizzy about APD. And, specifically, about Chief Acevedo’s talk about “taking on” people who criticize the department online. The summary of the story from the Statesman that got all the comments on Slashdot is pretty off, though – it misrepresents Acevedo’s position so that it looks like he’s saying, “we’re going to arrest people if they call us jerks”, when he’s really saying “pretending to be an APD official when you’re not and making statements that are untrue is a criminal act”, which is true. Grits for Breakfast pops up again to wonder if this means that, like, all other crime in Austin has been completely eradicated so this is a really good use of police time.

Ever get arrested in a casino? Apparently rather than just break people’s legs for cheating these days, the house will now hold them in custody and offer them the opportunity, sanctioned by a district court judge, to sign a confession, pay $500, and not be prosecuted. Which is a little bit creepy, since if you’re being detained against your will and accused of a crime by people with vast resources, you’re not really in a great position to make a great decision, hence the fact that the practice is now under investigation. Insert your own “whatever happens in Vegas” or “the house always wins” pun here – this practice is apparently good for almost $750,000 a year.

Also on Popehat, there’s a downright terrifying piece about an undercover investigative report from a Florida television station in which they went to various police stations asking for the form to file a complaint. A (very mild) sample:

tester: Do you have a complaint form that I can, like, fill out or something like that?
officer: Might not be a legitimate complaint.
tester: Who decides that?
officer: I’m trying to help you.
tester: Like, if there’s a form, why can’t I just take it and leave, right?
officer: No, you don’t leave with forms. You tell me what happened, and then I help you from there. Do you have I-D on?
tester: Why?
officer: You know what? You need to leave.

(It gets worse from there.)

But in more fun news, Austin solo practice attorney George Lobb crashed the groundbreaking ceremony for the new federal courthouse  in Austin. He brought his own shovel and hardhat, and a real big smile. Click the photo to enlarge. it’s a pretty great picture. he looks very happy to be there.

We’ve also got a bigger piece on this coming up, but in case you missed it last week, Charles Hood, a death row inmate here in Texas, had his motion for a new trial denied by the Texas Court of Criminal Appeals even though his prosecutor and the judge were having an affair at the time of his trial and conviction. The argument, as best as I can understand it – and bear in mind that I’m not a lawyer, went something like this:

Appellate Attorney: My client needs a stay of execution, because the judge was sleeping with the prosecutor.

Court: Prove it!

Appellette Attorney proves it by deposing the participants, who admit the affair under oath.

Appellate Attorney: There, proof, now can my client be treated fairly?

Court: Oh, not at this point. You should have done this earlier.

(Cue the wah-wah-WAH sound.)

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posted by Dan   permalink   0 Comments

What is the Governor's Problem with Clearing Innocent People's Names??? -

Tuesday, July 21, 2009


Last week, I called on Governor Perry to sign a pardon for Timothy Cole. He has continued to deny Mr. Cole's family's request for a pardon, repeatedly citing an Attorney General's opinion that precludes posthumous pardons.

Since Governor Perry was apparently not swayed by the Texas Legislative Council's report that suggested that he did have the power to issue posthumous pardons, State Senator Rodney Ellis submitted a request for a new Attorney General's opinion regarding whether Texas governors can grant posthumous pardons.

I look forward to reading the new AG's opinion and continue to hope that Governor Perry will bring Timothy Cole's family some peace by signing the pardon. However, the whole thing leaves me wondering what is the real motivation behind Perry's unwillingness to clear an innocent man's name? There is no fear that he is actually guilty - DNA has cleared him and the true culprit has since confessed to the rape for which Cole was wrongly convicted.

The matter makes me think of Perry's veto of the expunction bill - again, if someone isn't found guilty of committing a crime (and they don't plead guilty), why should his or her name and criminal record suggest otherwise? This is not being "tough on crime," this is being tough on the innocent.*

*and yes, I realize that some people have their cases dismissed even when factually "guilty" due to some other reason - often mitigating evidence in the interest of justice. But if we empower prosecutors to determine whether a committed crime is worth pursuing, and they decide to dismiss, then there's no functional reason to insist on waiting the full statute of limitations period.

(photo via eschipul's flickrstream)

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posted by Kristi Couvillon   permalink   0 Comments

To Kill a Mockingbird and Posthumous Pardons -

Friday, July 10, 2009

Earlier this week, I was talking with Kristin about To Kill a Mockingbird. (It recently played at the Paramount Theatre's Summer Film Series.) I remarked to her that every time I read the book or watch the movie, I find myself truly hoping and thinking that maybe this time Atticus Finch will win the trial and Tom Robinson will go free, even though I already know the ending.


I then pondered out loud whether Finch and Robinson would prevail in this day and age in our home state. Have we made that much progress? Somehow our conversation wandered into a discussion about Timothy Cole, who died in prison after being wrongly convicted of raping a Texas Tech student, and was later exonerated by Judge Charlie Baird after DNA testing proved that he was not the assailant.

Today I read in the Fort Worth Star-Telegram that the Texas Legislative Council issued a report showing that the Governor has the power to issue poshumous pardons and should do so for Mr. Cole.

Governor Perry has previously stated that an old AG's ruling dictates that in order to issue a posthumous pardon, he must first get authority from Texans through a constitutional amendment. This report now gives him the authority to do so without waiting for the passage of an amendment. As pointed out in an entry on Grits for Breakfast, the worst that could happen is that the courts could later say "no." No one with any standing to sue has threatened to do so, and I cannot dream up any reason for anyone to do so.

While unfortunately this will never bring Mr. Cole back to his family, it is Texas's chance to symbolically change the ending to To Kill a Mockingbird. Sign the pardon, Governor Perry!

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posted by Kristi Couvillon   permalink   1 Comments

Perry's Nonsensical Vetoes -

Friday, June 26, 2009

I am still trying to recover after learning that Governor Perry vetoed some of the only good criminal justice bills that made it through the legislative gauntlet this session (after hundreds of bills died in the House due to the controversy surrounding voter ID). Few, if any, lawmakers voted against the bills that Perry killed and it is beyond frustrating that one person has this much power: I echo the sentiments of Senator Wentworth's vent:

"There's no check on the governor's power to veto bills that have been through an entire process," said Sen. Jeff Wentworth, a Republican from San Antonio who represents part of southern Travis County. "When senators and representatives from all 254 counties overwhelmingly — in some instances, nearly unanimously — pass legislation that's been through a really tortuous path to get to his desk, for the governor to veto it seems a bit unusual," Wentworth said.



So much for the democratic process.

The bills I am most upset about are the expunction bill and the sex offender de-registration bill.

The expunction bill would have made it easier to for those who have had their cases dismissed, or were arrested but were not charged with a crime, to expunge their records. This would have been an amazing opportunity for people who have had their cases dismissed (or not filed!) to move on with their lives without having a criminal record following them around.


Texas Criminal Defense Lawyers Association, along with many other groups, proposed the change because current law imposes lengthy time limitations (and in some case, no time limitations) on being able to file for an expunction after a case has been dismissed. For example, I have two clients that were falsely accused of sexual assault that are unable to have their records expunged under current law because there is no statute of limitations for that offense. Sorry, looks like those false sexual assault charges are going to have to follow two innocent men around at least two more years until next session! And sorry to the thousands of innocent Texans who are going to continue to be harmed with a criminal record that will make it even harder for them in these tough economic times to find jobs, housing, etc.

And Governor Perry's official veto statement as to why he vetoed a bill that had bi-partisan support and passed unanimously out of the House and Senate is nonsensical: "Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely." What??? Expunction statutes have never and would never be used as a means of discovery - what we want when we are seeking to expunge records is a destruction of those records, not a request to get offense reports. In addition, prosecutors must only have probable cause to file formal charges against someone - and every defense attorney knows how difficult a time a prosecutor has persuading a grand jury on that!

The sex offender de-registration bill was a very narrowly tailored bill that would have offered some relief to young "offenders" who could petition the court for an exemption from life-time sex offender registration for consensual sexual activities if they were within four years of the "victim." Under current law, a 17 1/2-year old who has consensual sex with his 14-year old girlfriend (or a 19 year old with a 15 year old or a 20 year old with a 16 year old) is guilty of sexual assault. That person, if convicted, has to register as a sex offender for life just the same as someone who commits rape or makes child pornography.

What we are talking about here under this bill would have been to allow those teenagers in "Romeo and Juilet" situations to petition the court (and this would have been permissive - not mandatory) to excuse them from a lifetime of sex offender registration for consensual sex as long as they were within four years of the "victim". (And as long as the "victim" was 14 or older.)

And Perry's reason for the veto: "I believe the bill fails to adequately protect young victims." First, the "young victims" Perry refers to are the teenagers who had consensual sex with partners four years older than they were - how does not making those "offenders" register for life in the same way that dangerous predators do "fail to adequately protect" them? Got me. And more importantly, what about the "young victims" out there that will be harmed because our limited public safety resources will be diverted and wasted on monitoring thousands of people on the sex offender registry that pose absolutely no public safety threat? (Not to mention those "young victims" - the "offenders" - who now have no relief from a life-time of living publicly as a sex offender.)

You can probably guess that I am not normally a huge Republican backer, but here's to Kay Bailey Hutchison (or really, anyone but Perry... ANYONE - Kinky Friedman? Leslie Cochrane? Kermit the Frog?) for 2010.





(Flickr images via bludgeoner86, d. jones photo, stuck in customs, faster panda kill kill, lovebrkthru)

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posted by Kristin Etter   permalink   2 Comments

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