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Two Solzhenitsyn Quotes
And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand? After all, you knew ahead of time that those bluecaps were out at night for no good purpose. And you could be sure ahead of time that you'd be cracking the skull of a cutthroat. Or what about the Black Maria sitting out there on the street with one lonely chauffeur - what if it had been driven off or its tires spiked. The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt!
I Would Have…
Matt Brown would have missed out. John Kindley would have baked bread for a living. When I was little, I wanted, thanks to Bravest of All, to be a firefighter.When I was eleven, I discovered computers, and programming, and networks, the joys of accessing and exploring other people's networks without their permission, and misanthropy. I might have become an early hacker.
But when I was thirteen we moved to India, and even if a 300-baud modem would have worked over the phone lines of Indira Gandhi's India there was nowhere to call. I started ninth grade, and decided that building airplanes and spaceships would be fun: I wanted to be an aeronautical engineer.
By eleventh grade I had exhausted all the math and science classes the American Embassy School had to offer, and had discovered theater and girls. About then I figured out that beng a criminal-defense lawyer was what I wanted to do.
Last Week in DA Politics
Last Tuesday six police unions announced a vote of no confidence in Harris County DA Pat Lykos. Last Wednesday retired judge (some might say, former prosecutor who happened to wear a black robe for much of his prosecutorial career) Mike Anderson filed to run against Lykos.
Is the timing mere coincidence, was Anderson's filing prompted by the union announcement, or was the union announcement timed to precede the Anderson announcement? My guess is the last: a concerted attack on Pat Lykos.
The Republican filing deadline was originally 2 December (later bumped back to 15 December). I suspect that the plan was for the unions to announce their votes, then for Anderson to announce right before the deadline; when the filing deadline moved back, the plan didn't move back.
Harris County District Clerk Chris Daniel Done Good
Yesterday Harris County District Clerk Chris Daniel invited me to preview the District Clerk's new efiling system for pleadings in criminal cases, FREEfax. Today I saw the dog-and-pony show, and it's a well-thought-out system that will, if all goes as planned, be very helpful to criminal-defense lawyers and, by extension, to our clients (also, I suppose, to prosecutors).
The FREEfax system has been up and running on the civil side for a while now-a couple of years?-but efiling has never been available in criminal cases.
The system that Daniel is introducing on Monday has a couple of significant limitations at this point-only cases in Mark Kent Ellis's 351st District Court are eligible for efiling; and efiling is only available between midnight and 5 p.m. on weekdays, so it's not helpful for after-hours filing-but it will, when other courts adopt it (Judge Ellis is an early adopter of courtroom tech) it'll have much of the functionality of the Electronic Court Filing (ECF) system in the federal courts. In other words, pretty darn useful.
UC-Davis: Sauce for the Gander
The Atlantic, be a mistake to think that this is all about Lt. John Pike:
Let's not pretend that Pike is an independent bad actor. Too many incidents around the country attest to the widespread deployment of these tactics. If we vilify Pike, we let the institutions off way too easy.
Neither should John Pike be let off scot-free. Fired? Perhaps, though if he loses his job it will be a political move, intended to make people forget the institutional-and, indeed, societal-failures that allowed him to so cavalierly injure peaceful protestors.
But firing is too good for John Pike. John Pike should spend the rest of his life, until he publicly repents, feeling insecure. And so should every officer who followed him at UC-Davis.
They should not be able to go out to eat without knowing whether their food will be spat in, or worse.
Buttercup Nation
When I read, at Simple Justice, commenters' rationalization of a grad student's failure to act when he saw a ten-year-old boy being raped by a football coach-typical of which was this:
I would like to point out that Mike McQueary was a graduate student back then. Had he done anything more, his entire career would have been over before it even started, and the coverup probably would have still happened. I do not think it is fair to have expected Mike to destroy himself like that.
-this passage from The Princess Bride came immediately to mind:
Humperdinck: Surrender!Westley: You mean you wish to surrender to me? Very well, I accept.Humperdinck: I give you full marks for bravery. Don't make yourself a fool.Westley: Ah, but how will you capture us? We know the secrets of the fire swamp. We can live there quite happily for some time, so whenever you feel like dying, feel free to visit.Humperdinck: I tell you once again, surrender!Westley: It will not happen.Humperdinck: For the last time, surrender!Westley: Death first!!Buttercup: Will you promise not to hurt him?Humperdinck: What was that?Westley: What was that?Buttercup: If we surrender and I return with you, will you promise not to hurt this man?Humperdinck: May I live a thousand years and never hunt again.Buttercup: He is a sailor on the pirate ship Revenge. Promise to return him to his ship.Humperdinck: I swear it will be done. (to Count Rugen) Once we're out of sight, take him back to Florin and throw him in the Pit of Despair.Count Rugen: I swear it will be done.Buttercup: (to Westley) I thought you were dead once and it almost destroyed me. I could not bear it if you died again, not when I could save you.Count Rugen: (to Westley) Come, sir, we must get you to your ship. [pause]Westley: We are men of action. Lies do not become us.
Read This
Appellate Squawk. He's been blogging for nearly a year, and I've never heard of him.
I've been excising the bloggers-for-profit and the long-defunct noble efforts from my feed reader, so it's good to be able to add someone who blogs for love (though he might say, "for anger").
Who else am I missing?
(h/t Greenfield.)
Law Geek: Beaumont Court Gets Double Jeopardy Wrong.
A jury acquitted Crystal Desormeaux of capital murder. A grand jury then indicted her for the offense of injury to a child. Injury to a child is a lesser-included offense to capital murder of a child (In Re L.M.).
Desormeaux filed a writ of habeas corpus in the injury-to-a-child case, alleging that the Double-Jeopardy Clause of the Fifth Amendment barred her trial for injury to a child after she was acquitted of capital murder.
A no-brainer, right? The Double-Jeopardy Clause says, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"; a person who has been tried for one offense has been effectively tried for all lesser offenses as well. Trial for a lesser after being acquitted of a greater offense violates double jeopardy.
Basic crim pro.
But no, says Texas's 9th (Beaumont) Court of Appeals in a published opinion:
What We're Up Against: Harmless Error
Before we try tough cases clients often ask, "if things don't go well, we can appeal, right?"
Well, sure. If we lose, we can appeal, but the appeal isn't about retrying or even revisiting the facts of the case. If the appellate court finds that "no rational trier of fact" could have found proof of guilt beyond a reasonable doubt, the case will be reversed for legally insufficient evidence. Otherwise, the court of appeals will only look at mistakes that the judge made in her role as referee of the trial. Except in very rare instances, the court of appeals will only look at preserved error-mistakes that the judge made that I called to her attention in time for her to do something about them. When briefing attorneys (the baby lawyers who help the appellate judges write their opinions) are hired at courts of appeals, the first thing they're taught to do is to look for "procedural default"-waiver-the failure to preserve error for appeal.
I'll preserve all the error I can (that's a large and neglected part of the criminal-defense trial lawyer's job), but convincing a court of appeals that an overruled objection (mine) or a sustained objection (the state's) is error is an uphill battle. Even once we've convinced a court of appeals that the judge erred, however, the battle is not over.
A Politicized Timeline, and a Lie. But I Repeat Myself. [Updated, with Transcript]
[Update: I got a call this morning from Jim Leitner of the DA's Office. He said that in his interview with Amanda Culberson, recorded by both sides, she said that the power-supply problems would cause the machines not to work, but would not, as far as she knew, cause false results. Meanwhile, a lawyer with intimate knowledge of the BAT vans wrote: "What Oliver and DPS doesn't have an answer for – and what I think is truly the biggest issue affecting test accuracy – are interferent problems the BAT vans were producing on a large scale." All of this would downgrade "we've addressed all of Culberson's concerns" from a lie to a misleading truth.]
Pat Lykos's (on her campaign website).
What Lykos leaves out of her timeline:
1 March 2011 / 2 March 2011: KTRK-13 reporter Wayne Dolcefino does a two-part story on BAT vans, which cost the city $600,000 rather than the $250,000 approved in November 2007, which have air-conditioning and electrical problems that can affect the usefulness of the breath-test machines, and which spend much of their time sitting unused-one van didn't "process" a single driver in ten months.
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