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Crazy Days
While we're on the topic of stupid blog tricks, I got this telephone call yesterday: "I was just googling my name, and I saw it on your blog. I want you to remove it."
Um... okay. Who is this?
"Jeff Deutsch. "
I know who Jeff Deutsch is. Jeff writes the excellent but sporadic Building Common Ground blog, dedicated to "building common ground between people on the autism spectrum and those who love, work with and play with them." I read Jeff's blog, but we've never talked on the phone, and I have to admit that for a moment I wondered whether this was some sort of online Asperger's episode.
I did a quick search on Defending People for Jeff's name, and found that the only reference was an innocuous hat tip here. A small light dawned. "Are you the Jeff Deutsch that writes the Building Common Ground blog."
"No."
Did you click on the link to see how your name was mentioned?
Tried to Comment on Texas Lawyer Blog
I tried to leave a comment on Texas Lawyer magazine's Tex Parte Blog. I got this in my email from the Managing Editor of Texas Lawyer:
Thanks so much for taking the time to comment on Texas Lawyer‘s blog. To publish it, I need your written permission, full name and city, all of which will be published with the comment.
Four days later, I got the same message from the Law Editor of Texas Lawyer. I forwarded my mocking response to the first email to her.
Doesn't leaving a comment on a blog imply permission to publish? If Texas Lawyer doesn't think so (seriously?), wouldn't a checkbox on the comment form make more sense?
I thought I was doing a lot to discourage comments by requiring people to use their actual names, but Tex Parte's bizarre policy has me beaten by a country mile.
Judge Fine and the Chronicle Back Off
A Houston judge who ruled last week that the proceedings surrounding the Texas death penalty are unconstitutional rescinded his ruling this morning to schedule a hearing for lawyers on both sides to submit arguments on the issue.
(Houston Chronicle, from which the Keirnan and Allen quotes below also come)
While I wasn't able to attend this morning, I have it on good authority that the Houston Chronicle's description of the proceedings is accurate. I commend the Chronicle for this, and for bucking the AP in favor of Messrs. Strunk and White's preferred punctuation of the possessive of Texas.
I appreciate people who are able to admit their mistakes and correct them. It shows strength of character, whether the people are reporters or judges. Judge Fine jumped the gun when he held Article 37.071 unconstitutional. There was no evidence presented in support of the motion, and some of the facts Judge Fine took judicial notice of were not in fact facts. He violated the first rule that judges learn at baby judge school, which is that the best way to avoid reversal is not to rule. Then he violated the second rule that judges learn at baby judge school, which is to not change your ruling once you've ruled.
Go Go Godzilla
I had a conversation recently with a woman who had accused her husband of hitting her. I was explaining her position in the criminal case: "You won't have a lawyer, since you're not a party. You're a witness." "I'm not a witness," she replied indignantly, "I'm a victim."
This is, I'm afraid, the spirit of these American times: if victimhood isn't acknowledged, the victim is offended. There is value in being a victim. It's a point of pride.
Intertwined with this victims' pride, there is a movement of victimocracy afoot in America. To the victimocrats, not handling victims with kid gloves is an impeachable offense. To the victimocrats, it is appropriate to to honor the dead with destruction or by naming laws that will put people in prison after them.
Houston has a victimocrat-in-chief, Andy Kahan (who has found a way to make victimocracy pay) thinks victims' rights should be constitutionally enshrined, and that victims should be treated with respect and dignity... unless they are the victims of false allegations. The victimocrats even have their own week at which they celebrate fictional inflated numbers of crimes.
Parsing the Made-Up News
Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.
The Houston Chronicle clings doggedly to the false proposition that Kevin Fine "declared the death penalty unconstitutional Thursday." On Friday Judge Fine clarified why he was declaring the procedures unconstitutional, not that he was declaring the procedures unconstitutional:
I do, however, want to clarify because this was a multi-point motion, I want to clarify my ruling on the motion and I want to also have - give the State and the Defense an opportunity to present any authority that they may have come up with since my ruling yesterday afternoon until today or this morning.....My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.
Legal Education or Experience Not Required
Findlaw is looking for a dreckblog writer:
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Harris County Death Penalty Update: They Report, I Explain.
More news, documents, and analysis of Kevin Fine's order holding the Texas death penalty procedure statute, Code of Criminal Procedure Article 37.071, unconstitutional:
Yesterday I brought you the motion, and the order Judge Fine signed. I explained how the press had the story wrong (the death penalty isn't unconstitutional; the procedural statute is; correcting the statute would put the State back in the death penalty business in the 177th).
More documents today (thanks to my friends in the DA's Office for copies of the first transcript and the State's two motions), and some analysis. Jump to the bottom if the details of the argument don't interest you.
March 4, 2010 Transcript
Here's the transcript of the portion of the hearing yesterday at which Judge Fine dealt with the unconstitutionality of Article 37.071:Green Fine Transcript 1
The motion filed by the defense is a standard one. It's probably been filed in dozens of death penalty cases, and summarily denied in each. In this transcript Kari Allen, one of the two lawyers for the State, says, "we could not find any cases that directly address just the system being broken because it isn't really a constitutional issue." This might turn out to be important in our discussion of the procedure by which the State might get the order reviewed. Allen does cite Scheanette v. State, 144 S.W.2d 503 (Tex. Crim. App. 2004), in which the Court of Criminal Appeals held:
Judge Fine on the Constitutionality of 37.071
A courtroom observer reports that Judge Fine took judicial notice of more than 200 death row inmates exonerated, most due to DNA retests, which called into question many more cases where DNA was not available to retest.
The following are approximate quotes from Judge Fine:
I must decide what our evolving standards or decency are, such that society recognizes standard of fairness and liberty that a state might execute one or more innocent people so that people who are truly deserving of death can be executed.
Our country is more aware of executing innocent people. I don't think anyone would be willing to allow an innocent be executed so that guilty can be executed.
With no other guidance from a higher court, this is the most difficult decision I've had to make. But I am not prepared to say our society is willing to let innocent people die so Texas can have a death penalty.
Even in Texas, Death Penalty Still Constitutional
Brian Rogers of the Houston Chronicle reported today that Judge Kevin Fine of the 177th District Court "declared the death penalty unconstitutional." This caused the Chronicle's anonymous commenters to gibber ignorantly in righteous indignation like a cage full of unusually stupid monkeys. Which is always fun.
Paul Kennedy was immediately on the story, for which Jeff Gamso gave him kudos. The Houston Press posted on it, complete with quotes from Brian Wice, Casey Kiernan, and Pat Lykos.
Unfortunately, Brian Rogers's report is not quite accurate. In fact, it's far enough from accurate to be totally false. Judge Fine did not declare the death penalty unconstitutional.
Today Judge Fine denied the defendant's Motion to Declare Death Penalty Unconstitutional Based on Texas' Lethal Injection Protocol (Scribd) and his Motion to Declare Texas Death Penalty Statute to be Unconstitutional (Jurors' Inability to Predict Future Dangerousness) (Scribd).
Chris Dorbandt and Catalyst Design: Partners in Crime
Rule 7.02 Communications Concerning a Lawyer's Services(a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
It offends me when people steal the work of people who write for a living. Nobody could possibly think that taking newspaper articles and posting them to a blog attributed not to the newspaper or the author but to you is anything other than plagiarism. No competent lawyer could possibly think that doing so is anything other than unethical.
When I discovered, serendipitously, that Austin lawyer Chris Dorbandt was plagiarizing newspaper stories for his criminal defense "blog," I tried a new approach. Instead of immediately gutting him here, I tried to leave a comment on the blog, suggesting that attribution (the first plagiarized post I saw contained a Houston Chronicle story by Brian Rogers) would be appropriate.
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