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"LEGAL ISSUES"
Prisoner lawsuits from Ike jump to 22
By Chris Paschenko
GALVESTON The number of lawsuits filed by jail inmates who weren’t
evacuated during Hurricane Ike has increased to 22, court records
revealed Friday.
Those incarcerated in the Galveston County Jail relate tales of
bucket baths, rations and claim living conditions that were deplorable.
The 22 handwritten lawsuits naming former Sheriff Gean Leonard and
other jail staff were filed by the inmates themselves.
William Ficklen, 48, was arrested after the storm on charges of
aggravated assault with a deadly weapon. Ficklen said he discharged a
shotgun multiple times into the ground in Bacliff to drive away
looters. No one was injured and the charges were dismissed, said
Ficklen, who has not filed a lawsuit.
“I’m trying to find a lawyer to take the case, but nobody wants to
take it,” Ficklen said.
His 13-day stay included using buckets as urinals, other buckets for
baths, eating baloney sandwiches and splitting 10 gallons of water
per day between 48 inmates in his cell block area, Ficklen said.
Leonard declined to comment on pending ligation.
But members of the Texas Commission on Jail Standards toured the jail
about 10 days after the storm’s Sept. 13 landfall and found no
problems, the organization’s executive director said.
A status conference has been set for July 2 in Judge Lonnie Cox’s
56th District Court, where trial dates could be set. All pretrial
matters for the cases will be handled in Cox’s court, Kay Henson,
Cox’s court coordinator, said.
Cox said he was inclined to handled the cases separately.
Some of the lawsuits haven’t been served, mainly because prisoners
who filed from jail haven’t made the request. It is unclear what will
become of those lawsuits.
There are policies in place to evacuate county jail prisoners,
however it is up to the sheriff to make that call, Maj. Ray
Tuttoilmondo, a spokesman for the sheriff’s office, said.
“There’s no hard fast rule that says when the weather gets to X, then
we leave,” Tuttoilmondo said. “It’s a very dynamic process.”
Prisoner lawsuits from Ike jump to 22
Associated Press profile on Prison Legal News
May 25, 2009
Ex-con's magazine focuses on advocacy, prison life
By JOHN CURRAN
WEST BRATTLEBORO, Vt. (AP)— To prison inmates, he's a jailhouse lawyer made good.
To wardens, he's a thorn in the side.
To prison advocates, Paul Wright is a success story: Once a killer, then a prisoner, now a journalist with a cause. He has carved out a niche with his Prison Legal News, a self-help magazine.
The publication, known as PLN, does more than highlight mail censorship, sexual abuse by prison guards and prison overcrowding in its black-and-white pages. The nonprofit tabloid often takes on the role of prisoner advocate, going to court against states and private prison operators— and winning money, reform and public attention for prisoners.
"It's a voice from the inside, but it's a helluva lot more reasoned and balanced than you might think, even though the point of view is obvious," said Fred Cohen, coeditor of Correctional Law Reporter, a trade publication that serves prison officials. "It's advocacy, in the best sense."
Wright, a former U.S. Army military policeman, started the monthly publication in 1990. Back then, he was inmate No. 930783 at Clallam Bay Correctional Center in Clallam Bay, Wash., where he served 16 years of a 25-year term for killing a cocaine dealer he was trying to rob.
Now, he produces the 56-page tabloid from a split-level home on a cul-de-sac in West Brattleboro, Vt., where he moved after his release from prison in 2003.
It's a long way from his jail cell, where Wright wrote the 10-page first edition on a typewriter, photocopied it and arranged for a contact on the outside to mail it to 75 prisoners he knew in Washington.
It was immediately banned in all state prisons in Washington, prompting Wright and coeditor Ed Mead — also a prisoner — to file the first of dozens of legal challenges targeting regulations that barred inmates from receiving PLN and other publications.
PLN has won similar court fights in Alabama, Michigan, Nevada, Oregon and California, where state prison officials agreed in 2006 to pay PLN $65,100 for five-year subscriptions for each of the state's 157 prison legal libraries to settle a lawsuit.
The legal challenges aren't always about getting PLN into prisoners' hands.
In 2007, the magazine won a $541,000 settlement in a public records lawsuit against the state of Washington that started with Wright's request for the identities of the Department of Corrections officials who participate in executions.
"PLN is not fighting for cable TV or air conditioning for prisoners," said Rhonda Brownstein, legal director for the Southern Poverty Law Center, in Montgomery, Ala. "What they're fighting for is basic human rights, and the basic human rights we're talking about are the right to be free from violence by other prisoners or guards, the right to adequate medical care, adequate mental health care and the right — to an extent— to freedom of expression."
But it's the magazine that reaches deepest into prison cells and law libraries.
Subtitled "Dedicated to protecting human rights," it uses lawyers, public policy experts, advocates and prison scribes as correspondents.
The premise is simple, Wright says: "We're not telling prisoners 'Hey, here's how you make bombs.' We're not telling people 'Hey, you need to kill the guards in the morning.' Rather, what we're doing is we're telling them on a fundamental level `You're human, you have civil rights and you can use the civil system to enforce them,'" he said.
The publication is stuffed with legal advice, tips on staying healthy behind bars and news about court rulings that involve prison labor, medical treatment in prisons and suicide prevention programs in prisons. Its correspondents have ranged from late civil rights attorney William Kunstler to imprisoned Philadelphia police officer killer Mumia Abu-Jamal.
To prisoners, it's the Bible. After all, there's no hotter topic behind bars than the law.
"Everybody wants the case that's gonna get them out of jail," said Carol Callea, director of legal education for inmate access to courts for Vermont prisons. "When something happens, they want to know about it."
With no photos or color, and headlines like "Alabama Prisoner Awarded $90,000 for Work-Related Eye Injury" and "Pro Se Tips and Tactics," it's not a slick publication.
And it doesn't have to be. It has a captive audience.
About 80 percent of its 7,000 subscribers are incarcerated in the U.S. Subscriptions are cheaper in jail — $24 a year for inmates, $40 for anyone not incarcerated, free for death row prisoners.
Fans of the magazine say PLN's value lies in giving prisoners truthful, no-nonsense tips to fight their legal battles and, in the process, disenfranchising jailhouse lawyers peddling less reliable information.
"It's really an extraordinary resource, and it's not just a resource for jailhouse lawyers, although it's certainly that," said Elizabeth Alexander, director of the American Civil Liberties Union's national prison project. "It's also a resource for prison rights advocates."
Not that Wright hasn't made some enemies.
"He's very bright, sometimes very effective," said Eldon Vail, secretary of the Washington state Department of Corrections, a frequent Wright target. "He has a world view shaped by his experience that isn't always right. He doesn't always preach a balanced view, but it's a prisoners' rights magazine and you don't expect that."
Wright, a 43-year-old father of two, is articulate and plainspoken in person, but says he has no interest in becoming a lawyer. He's the one sought by lawyers and others to speak at seminars and conference, he says.
With the nation's prison population surpassing 2 million people, he sees a growing market for Prison Legal News — the only prisoners' rights publication with a national scope — if only because it covers prison life with the inmates in mind.
"Most of what passes for criminal justice coverage, it's press release journalism. The prosecutor's office or the warden's office or the DOC office issues a press release and that's all (reporters) do.
"They don't seek any input from prisoners, prisoners' advocates, or whatever. It's just a totally one-sided story," he said.
Ex-con's magazine focuses on advocacy, prison life
March 26, 2009
Every one of the employees of the Texas Comm. on Jail Standards are former law enforcement people:
T.D.C.J., Sheriffs Dept's, bailiffs, wives of Sheriff's etc. Every one.
In 2002, I got the Comm. out to inspect the McClellan Co. jail; it FAILED miserably. The Sgt. over grievances had told them one thing IN WRITING (he never expected them to show up because an inmate requested it-- I was doing 60 days there myself and saw many problems) and when they inspected his office they found he was out right lying! The Comm. oversight at the Time- Terry Julian told me that over the phone after my release. I asked if the Sgt. was going to be reprimanded etc.-- He said: No, we have no authority to order to change anything, ALL we do is inspect and write a report. What GOOD does that do when a system has FAILED 7 times like Dallas Co. Just HOW much of the tax payers money is the Comm. eating up to DO nothing but ride around Texas and write things up.
Mr. Julian also admitted that serious issues like assaults etc. were not looked at by them, just functionary issues like inmate count to guards. The facility already knows all this, has not made a move to change and will not/. What good does it do to records it?? Mr. Julian admitted that a lot of things were not put on paper so that the records of offenses could NOT be used in a future law suit.
UNTIL this organization and T.D.C.J. are required to hire/ask to be present/input on many issues by Prison Reform Activists-- there WILL be no meaningful change.
Reported By: D. Rawlinson/T.P.L.U.
Supreme Court loosens law on illegal searches
By David G. Savage
Reporting from Washington — The Supreme Court pulled back on the
"exclusionary rule" Wednesday and ruled that evidence from an illegal
search can be used if a police officer made an innocent mistake.
The 5-4 opinion signals that the court is ready to rethink this key
rule in criminal law and restrict its reach. It will also give
prosecutors and judges nationwide more leeway to make use of evidence
that may have been seen as questionable before.
Chief Justice John G. Roberts Jr. said the guilty should not "go
free" just because a computer error or a misunderstanding between
police officers led to a wrongful arrest or search.
He said good evidence, even if obtained in a bad search, can be used
against a suspect unless the police deliberately or recklessly
violated his rights.
The exclusionary rule was applied to state and local police in 1961,
and its aim was to deter officers from conducting unconstitutional
searches of homes, cars and pedestrians. Usually, it means that
illegally seized evidence must be excluded.
But in Wednesday's opinion, Roberts said that "the benefits . . .
must outweigh the costs." And there is nothing to be gained, he said,
by throwing out evidence when officers make honest mistakes.
The ruling upheld the drug and gun charges against an Alabama man who
was stopped by a sheriff's department officer who had been told --
erroneously -- there was an outstanding warrant for his arrest.
The officer, Mark Anderson, had called and been told by a clerk in a
neighboring county that Bennie Dean Herring had failed to appear in
court on a felony charge. But minutes after Anderson found
methamphetamine and a pistol in Herring's car, the clerk called back
to say the arrest warrant had been withdrawn. This fact had not been
entered into the sheriff's department's computer.
Roberts said the mistake here was a "negligent bookkeeping error." It
did not reflect an officer's deliberate decision to violate the
rights of the motorist, he said.
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and
Samuel A. Alito Jr. joined the chief justice.
The dissenters said the exclusionary rule should be strictly
enforced. "Electronic databases form the nervous system of
contemporary criminal justice operations," Justice Ruth Bader
Ginsburg wrote. "The most serious impact of the court's holding will
be on innocent persons wrongfully arrested based on erroneous
information carelessly maintained in a computer database."
The exclusionary rule has long been controversial. It was imposed on
federal courts in 1914 to deter violations of the 4th Amendment and
its ban on "unreasonable searches and seizures."
In the 1980s, the court retreated somewhat and said there was a "good
faith exception" for officers who conduct searches with warrants they
believe are valid. In 1995, it said that if the judicial system makes
an error that leads to a wrongful arrest, the evidence need not be
suppressed.
The new ruling, in Herring vs. United States, goes a step further and
allows the use of illegally obtained evidence even when the mistake
arises from the law enforcement agency.
John Wesley Hall, the president of the National Assn. of Criminal
Defense Lawyers, said the ruling would "reward sloppy police work.
They should call it the 'Barney Fife' exception to the 4th
Amendment," an allusion to the TV lawman played by Don Knotts.
In a second decision, the court said judges may impose long
consecutive sentences for criminals who are convicted of several
crimes and without consulting the jury.
The court has said juries, not judges, need to decide the key issues
that result in a long prison term.
But in a 5-4 ruling, the court said it would leave it to judges to
decide whether a criminal should serve extra time for each violation.
david.savage@latimes.com
Supreme Court loosens law on illegal searches
Double Victory for Criminal Defendants at the Supreme Court
Tony Mauro
The Supreme Court issued two opinions Tuesday morning, both of them
striking down lower court opinions that had favored prosecutors. Over
at the Sentencing Law and Policy blog, professor Doug Berman is
already proclaiming that the decisions offer further proof that the
Court is the "most pro-defendant appellate court in the nation on
sentencing issues."
In Chambers v. United States, with Justice Stephen Breyer writing for
a unanimous Court, the justices agreed that a conviction on the
charge of "failure to report" to prison is not the kind of prior
"violent felony" conviction that triggers a 15-year mandatory prison
sentence for someone found guilty of illegal possession of a firearm.
"Conceptually speaking, the crime amounts to a form of inaction, a
far cry from the purposeful, violent and aggressive conduct"
associated with violent crimes under the Armed Career Criminal Act,
Breyer wrote. The Justice Department had argued that "failure to
report" should be treated the same way a prison escape would be.
Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote a
concurrence urging Congress to reduce confusion about the law by
amending it with addition of a list of specific crimes that trigger
an enhanced sentence.
The other decision, Jimenez v. Quarterman, is a Texas case authored
by Justice Thomas for a unanimous Court. Thomas ruled that because
Texas allows defendants to file untimely appeals of state
convictions, the clock for the one-year deadline for filing a federal
habeas appeal under the Antiterrorism and Effective Death Penalty Act
should not start ticking until after that out-of-time appeal is
completed.
This article first appeared on The BLT: The Blog of Legal Times.
Double Victory for Criminal Defendants at the Supreme Court
Court limits use of law aimed at career criminals
The Associated Press
WASHINGTON -- The Supreme Court has ruled that a failure to report
for prison does not count as a violent crime under a federal law
intended to keep repeat criminals in prison longer.
A unanimous court on Tuesday threw out a mandatory 15-year prison
term given to Deondery Chambers, who pleaded guilty to being a felon
in possession of a gun. Chambers had three prior convictions, which
prosecutors argued and lower courts agreed brought him under the
federal Armed Career Criminal Act.
But one of Chambers' convictions was for his "failure to report" for
weekend jail stays. The government contended that not showing up for
the weekend confinement was akin to an escape and should be treated
as a violent crime.
Justice Stephen Breyer rejected that argument in his opinion for the
court. Breyer said a report that examined failures to report to
prison found no evidence that defendants were more likely to resist
arrest and potentially injure law enforcement officers or others.
In a separate opinion, Justice Samuel Alito said the court is called
on too often to interpret the career criminal law and suggested that
Congress come up with a list of specific crimes that should trigger
application of the law.
In a second criminal case, the court unanimously ruled for a Texas
prison inmate seeking federal review of his 43-year prison term. The
federal appeals court in New Orleans was wrong to find that Carlos
Jiminez had missed a deadline for filing his paperwork in federal
court, Justice Clarence Thomas said for the court.
The cases are Chambers v. U.S., 06-11206, and Jiminez v. Quarterman,
07-6984.
Court limits use of law aimed at career criminals
The Daily News
Published June 1, 2009
The high court rules in a 5-4 opinion that evidence from an illegal
search can be used if an officer makes an innocent mistake.
January 15, 2009
From the Los Angeles Times
01-14-2009
January 13, 2009
The Legal Year In Review
Dec. 27, 2008
(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Unless you discovered that the feds were monitoring your domestic email and phone calls without a warrant, or you were swindled out of millions by a con man so smooth he had a waiting list of victims, or you were a same-sex couple valiantly trying to get married, chances are you didn’t pay very much attention to the world of the law in 2008. If you tuned out the legal scene this year consider yourself blessed: you didn’t miss very much.
While the nation’s attention was riveted by the transcendental presidential campaign and then the fierce economic crisis the law crept quietly along. Ten years removed from the Starr Report and the start of the Clinton impeachment proceedings, we have just endured (or enjoyed, depending upon your point of view) one of the least demagogic in the law since O.J. Simpson got into his white Ford Bronco and forever changed the way we absorb news from the courts.
No mountains moved. No seas changed. Only a few tides turned.
But lest my wonderful bosses at CBS News think my beat is all wrapped up and doesn’t need any further analysis or perspective let me quickly add this: even a relatively boring year in the law still offers a righteous blend of mischief and karma, incompetence and evil. And the lull of the legal year gone by may be gone by January 20, 2009, the day a new administration takes over America’s legal war on terrorism. That’s a development that promises not just significant policy changes but also new information and insight about how the Bush Administration got us from September 11, 2001 to where we are today.
Not being able to predict precisely what will occur during the new and exciting (and busy, dear bosses, busy!) year, I am left instead at this time to sift through the events and issues that marked the annals of the law in 2008. The Supreme Court, for example, made its biggest news of the year when it finally decided a case that defines the contours of the Second Amendment. Along ideological lines, in a 5-4 decision authored by Justice-hunter Antonin Scalia, the Court ruled that there is, indeed, an individual, constitutional right to bear arms. But the Justices also declared that there may be certain lawful restrictions placed upon gun rights. This means more Second Amendment cases all over the country in the months and years to come.
The Justices also did in 2008 what they had done three times previously during the Bush Administration; they blocked the White House and the Congress and the Pentagon from fully implementing a set of stark (and in some cases senseless) military tribunal rules that gave terror suspects (at Guantanamo Bay, mostly) almost no shot at a reasonably fair trial. How the Obama Administration finally deals with these detainees-there is talk now of sending some to Europe-will be a big story in 2009. And so will the results of the first federal appeals from the detainees which are only now wending their way through the court system.
The current Attorney General, meanwhile, was precisely the sort of decent caretaker needed to help begin to restore the credibility of a Justice Department soiled by the ruinous tenure of Alberto Gonzales.
Michael B. Mukasey will perhaps best be known as the Attorney General who fainted on camera during a speech in November to the Federalist Society in which he was making the same, tired arguments about terror law that got us into this mess in the first place. He was back at work the very next day his tribunes were quick to tell us. Alas, reports The New York Times, federal stock fraud prosecutions dropped sharply in the eight years of the Bush Administration.
2008 was the year in which the law finally caught up to O.J. Simpson after he was convicted of a “robbery” that read more like a really good Marx Bros. skit. It was the year in which a sitting vice president, Dick Cheney, admitted to authorizing the crime of torture (in the form of water-boarding). And if you are looking for crossover themes between this year and next look here, to the issue of torture, and whether the new administration intends to do anything about the growing call for some sort of inquiry into what top Bush officials knew and when they knew it.
2008 was a year in which authorities in West Texas, acting on a dubious tip that was probably a hoax, swooped in on the Yearning for Zion Ranch and removed 439 children before being forced to return many of them back to family and sect leaders. It was a year in which the California Supreme Court declared same-sex marriage constitutional, a ruling which prompted a state-wide vote to outlaw the practice (and another round of lawsuits). And it was a year in which answers finally came to poor John and Reve Walsh, who lost their son, Adam, 27 years ago in a murder that spawned “America’s Most Wanted” television show which in turn helped solve hundreds of crimes.It was a year in which pitcher Roger Clemens testified before Congress that his pal Andy Pettitte had “misremembered” certain facts about claims of steroid use. It was a year in which the federal government indicted several Blackwater security guards after the mercenaries opened fire on Iraqi civilians in 2007. It was a year in which an overzealous prosecutor in California sought (and succeeded, for the moment) in criminalizing false statements posted on a MySpace site. And loud avenger Nancy Grace had a big ratings hit on cable when the body of poor little Caylee Anthony was discovered.
It was a year which saw some relief come to Charles Dean Hood, a death-row inmate whose lawyers finally convinced the courts in Texas to look into allegations that their client’s judge and prosecutor were sleeping together during his trial. And it was a year in which Americans once more proclaimed their support for the death penalty and a concomitant reluctance to actually choose it (or enforce it) as a sentencing option. “Only” 111 capital murderers were sentenced to death in 2008, according to the Death Penalty Information Center, and that’s the lowest number since capital punishment was reinstated by the Supreme Court in 1976.
It was not a good year for politicians, especially governors and U.S. senators. New York Governor Eliot Spitzer lost his job and all of his credibility as a tough-on-crime reformer when he involved himself with a call girl. For Spitzer, the only good news is that he likely won’t face charges for his crimes. The same cannot be said for “Rudyard Rod” Blagojevich, the odd and embattled governor of Illinois, who would have tons of time to bone up on his Kipling poetry if he’s convicted of the bribery and corruption charges just laid against him by U.S. Attorney Patrick Fitzgerald.
Unseemly greed and illegal sex were not limited to New York and Chicago, however. It rocked and roiled the nation’s capital and then gusted over to the Upper Midwest. In Washington, D.C., Sen. Ted Stevens (R-Alaska) was convicted of making false statements on a financial form and then promptly lost his reelection bid. Meanwhile, Sen. Larry Craig (R-Idaho) spent most of the year trying to weasel out of a guilty plea he made in connection with allegations that he solicited gay sex in a public bathroom at Minneapolis-St. Paul airport. And former White House press secretary Scott McClellan shocked no one when he confesses that he helped his bosses lie to the American people about certain vital policy decisions. Nice.
So I say: Good Riddance to 2008. Once Team Obama gets settled in the White House, and once the markets are off the front pages every day, it will be nice to see blanket coverage again of good old-fashioned legal events, issues and scandals. Thanks to our seemingly endless supply of creepy politicians and zapped out celebrities I am quite confident you’ll be hearing more from me in 2009 than you have these past 12 months. Whether that’s a good thing or a bad thing, I suppose, is entirely up to you. Happy holidays.
By Andrew Cohen
© MMVIII, CBS Interactive Inc.
Inmates sue over post-Ike conditions at Beaumont unit
Associated Press
Dec. 14, 2008
BEAUMONT — More than 130 federal lawsuits have been filed by state inmates who claim that living conditions after Hurricane Ike violated their civil rights.
The suits have been filed by prisoners living in the LeBlanc Unit of the Texas Department of Criminal Justice in Beaumont, the Beaumont Enterprise reported.
The cases originally were joined together as a single lawsuit, but Judge Keith Giblin ruled they should be handled individually, in part because of the security quandary that might arise if all plaintiffs appeared in court at the same time.
Giblin also expressed concerns that the inmates plan on representing themselves in court.
In a 26-page handwritten complaint, the inmates say the prison was evacuated of prisoners before Hurricane Gustav's arrival and should have evacuated prior to Hurricane Ike as well, since meteorologists were forecasting a much more severe storm.
The plaintiffs contend that by having to ride out the storm in prison, many inmates suffered psychological trauma.
The lawsuit also says that for three days after the storm some inmates continued to drink and use the facility's water, unaware it had been contaminated by salt intrusion.
Forcing inmates to remain at the unit during the storm and allowing them to drink the water afterward violates the Eighth Amendment's prohibition of cruel and unusual punishment, the lawsuit alleges.
A call to a spokeswoman for the Texas Department of Criminal Justice was not returned to the Associated Press on Sunday.
A statement on the department Web site says power at 41 facilities was quickly restored through the use of generators. It said the "Stiles, Gist and LeBlanc facilities were notified to boil water for a short time after the city's water system was inundated with salt water from the storm surge."
No serious injuries to staff or inmates were reported by any of the state's prisons as a result of the storm, the release also notes.
JUNE 27, 2008:
A Dose of Integrity for Texas Criminal Justice
BY JORDAN SMITH - The Austin Chronicle
In late April, during a Capitol press conference in advance of a
daylong meeting of stakeholders – cops, judges, lawmakers, professors
of law, and exonerees – for a forum on wrongful convictions, event
organizer Sen. Rodney Ellis, D-Houston, told reporters that the state
had reached its "tipping point" and that something needed to be done
to generate "concrete" and "commonsense remedies" to fix the state's
much-maligned criminal justice system.
Indeed, the parade of wrongfully convicted continues to march out of
Texas' prisons: Thirty inmates have been exonerated by DNA since 2000,
17 of whom were prosecuted by the Dallas Co. District Attorney's
Office, which now leads the nation in the number of men exonerated by
DNA evidence.
Ellis' "real hope," he told the assembled reporters, was that
individuals in positions of "statewide responsibility" would now
finally step up to the plate to help push for meaningful criminal
justice reform.
Just over a month later, Ellis' call was answered – by a most
unlikely source. On June 4, Court of Criminal Appeals Judge Barbara
Hervey announced that she was spearheading the creation of a so-
called Integrity Unit to begin to address the problems with Texas'
crippled justice system.
According to Hervey's official press release, she is kick-starting the
unit "on behalf" of the entire CCA as a "call to action to address the
growing concerns" with the system. "Although we applaud all previous
studies and dialogue" regarding criminal justice problems, reads the
release, "it is now time to act and move for reform."
As such, Hervey said that the newly created unit would be seeking
solutions to myriad problems: improving the quality of lawyers
provided to indigent defendants, implementing procedures to improve
eyewitness identification (an insidious problem implicated in a number
of exonerations) and to eliminate improper police interrogations (to
reduce false confessions) , reforming standards for evidence collection
and storage, and "implementing writ training," among other areas of
concern.
Hervey also announced that she'd chosen a (rather tame) group of 12
individuals to begin the conversation – including Ellis, Dallas
District Attorney Craig Watkins, El Paso D.A. Jaime Esparza, defense
attorney Gary Udashen, Gov. Perry's Deputy General Counsel Mary Anne
Wiley, and UT Law's Criminal Defense Clinic Director Bill Allison.
The group will "focus on the strengths and the weaknesses" within the
system, reads the press release, and is "not a forum for any
particular group" or "one particular political party."
Hervey's "call to action" generated a slew of press – the
overwhelming majority of it suggesting that the CCA and, in
particular, Hervey are trailblazing crusaders – and every major daily
in the state has praised the move on its opinion pages. The crew at
the Statesman wrote, "We applaud the [CCA] for taking a big step to
bring back fairness to the justice system." Still, it isn't entirely
clear how the new unit will function or what, exactly, Hervey – and
the court – intend to accomplish.
Indeed, the CCA has consistently been a key part of the problem with
Texas' criminal justice system, through years of embarrassing
decisions – like in the Roy Criner case, for example, where presiding
Judge Sharon Keller opined that DNA found that would exonerate Criner
was, essentially, meaningless, because he could've worn a condom when
he raped his victim (Criner was eventually vindicated in federal
court), or the case of Calvin Burdine, where the court, again led by
Keller, opined that a sleeping lawyer wasn't necessarily a bad lawyer.
Or, most recently, in September, when Keller arbitrarily
closed the courthouse doors at 5pm, refusing to hear the final appeal
of Michael Richard, who was then executed even though he likely
would've gotten a reprieve had Keller and clan stuck around a few
minutes longer.
In short, the court doesn't exactly have the best reputation and, to
be fair, hasn't exactly worked overtime to earn one.
And that has led some criminal justice stakeholders to view Hervey's
new crusade with skepticism. Some suggest that it is nothing more
than a chance to inoculate the court from heavy and continuing
criticisms – especially as the number of exonerated inmates continues
to grow. Indeed, several court denizens note that the court has had
plenty opportunity to correct the system by way of judicial rulings
in individual cases.
For example, the U.S. Supreme Court long ago acknowledged problems
with eyewitness ID, yet the CCA has consistently denied relief to
inmates seeking to raise such issues.
The topics Hervey has selected are broad and incomplete, some charge
– such as with the mandate to "implement writ training."
Teaching lawyers to write better writs is fine, but improving the law
covering the use of post-conviction writs – to allow better access to
the courts for inmates with claims of actual innocence but without DNA
evidence on their side – might be a more gritty and useful topic to
explore. In sum, says one lawyer, "This is pure PR, and that's not
lost on anybody."
Hervey dismisses the criticisms. "Various members of the court have
been involved in various 'innocence' ideas for years," she says –
Keller heads up the Task Force on Indigent Defense, for example, and
Hervey handles the grant funding for training lawyers and judges, she
notes. The court isn't seeking to wade into legislative territory
with the new unit, she says, though she does hope that the group can
come up with some solid recommendations to provide lawmakers in
advance of the January session.
And she hopes the group will be able to fix some issues with education
– like, perhaps, the implementation of better eyewitness ID
techniques, she says, "depending on the cooperation of law enforcement."
While Hervey admits the topics aren't all-inclusive, she intends for
the group to further open up the areas of discussion as they progress
through their work – she says that she's heard much grumbling about
the need for "writ reform," for example, but isn't sure exactly what
that means.
In fact, she says she's already made an "assignment" to one group
member, asking that the person (unnamed) find out exactly what lawyers
are "looking for and why." She says, "Don't throw rocks if you don't
tell me what the problem is."
Hervey says she hopes the unit will be able to meet once a month,
beginning this summer – either later this month or in early July,
although, at press time, a start date had not yet been announced.
June 25, 2008
CCA backs off changes to attorney-client privilege rule
The first dead-tree coverage of a proposed change to the Texas attorney client privilege rule didn't arrive until after the idea was
retracted. The Court of Criminal Appeals last week backed off a
proposed change to Texas' attorney client privilege rule in response
to complaints generated in the blogosphere. Reports Texas Lawyer:
The Texas Court of Criminal Appeals has defused a heated debate that
has raged in blogs and e-mails to CCA judges over a proposal to
eliminate a special rule of privilege in criminal cases. CCA Judge
Cathy Cochran says the state's highest criminal court unanimously
decided June 16 to defer the proposed deletion of Texas Rule of
Evidence 503(b)(2) at least six months to allow ample opportunity for
all interested parties to draft a proposed substitute for that rule or
to draft a rule or statute to govern the attorney work-product doctrine.
This was a debate that occurred almost entirely within the blogosphere
or though private emails, with the MSM apparently only noticing what
was happening after the fact (with the exception of SA Express New
reporter Elizabeth Allen on her own blog). Robert Guest at Dallas
Criminal Defense Lawyer and Mark Bennett at Defending People first
raised the alarm, then Court of Criminal Appeals Judge Cathy Cochran
graciously authored a guest post on Grits explaining the court's
suggestion. Keith Hampton from the Texas Criminal Defense Lawyers
Association authored a guest post in response, while Jeff Rambin at
Tyler Appeals also weighed in. See also the academic memo that started
all this and an analysis by federal public defender Richard Anderson.
Perhaps it's the case, as Judge Cochran declared in her guest post,
that the rule is a "vestigal tail" with "no wag," but the truth is the
CCA has trust problems with the defense bar, not least because the
presiding judge openly declares herself pro-prosecution. What's more,
the court fairly routinely identifies as "harmless error" in its
rulings all sorts of egregious errors that clearly did indeed cause
harm, a fact the defense bar well knows. So there's little reason for
defense lawyers to trust the CCA's good intentions or believe it when
the court says the change won't hurt them. From their perspective, the
CCA's idea of what's "harmless" routinely includes quite a bit of
possible harm.
It was the right move IMO for the court to give the defense bar more
time to come up with alternative language. It might be wiser still for
the court to just let this sleeping dog lie, vestigal tail and all,
letting some future court with more balance and fewer credibility
issues with the defense bar tackle purely cosmetic changes to the rules.
Posted by Gritsforbreakfast
attorney-client privilege rule
THANK YOU...
T.P.L.U.
Labels: attorney-client privilege, CCA
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