New Motto: Tough But Incompetent

This seems to be the argument.

• The buck stops here, so I take responsibility.
• But it's everyone else who's supposed to tell me what to do.
• And then I tell them to do it.
• But they don't properly tell me what to do.
• And I don't actually tell them to do it.
• And I always say what I mean, but I often fail to say what I mean and in fact say something else.
• So the buck stops here, but I'm not responsible.

Or something like that.

We know Sheriff Joe has admitted that he didn't do what the court ordered him to.  Yesterday he testified at his contempt hearing.

He told plaintiffs' attorney Stanley Young that he remembered hearing about the preliminary injunction when it was issued but said he didn't have knowledge of all the facts of the order.
"I delegated this court order to my subordinates and also to my counsel that represented me," he said.
Arpaio said he didn't recall if he ever did anything to ensure his office was complying with the order, saying he handed over the task to his former deputy chief, Brian Sands.

Hey, what more can you expect from the Toughest Sheriff in America™? John Wayne wouldn't ask questions. John Wayne would just say,

Do it, Pardner!

Same as Joe.

And if Pardner Sands doesn't do it? Shit, he explained that he delegated to his lackeys.

Earlier in the day, Sands also distanced himself in testimony from enforcement responsibility, telling his attorney that it was typically his subordinate's duty to implement training materials. Sands said he didn't know why the training module was never completed.

Whole fucking department is incompetent.  Ain't the fault of management, for god's sake.

And sure, his press releases have him saying things he didn't mean like he was going to keep going after immigrants when he meant illegal immigrants.  

But hey, he's the Toughest Sheriff in America™not some fucking pantywaist English professor.  And anyway, what's the difference between immigrants and illegal immigrants?*

Sigh.

Sheriff Joe, pressing the Law of Rule.

-----------------

*He didn't really ask that question aloud.  But he knows the difference:  Immigrants come from places like Canada and Sweden and Germany.  Illegal immigrants come from Latin America.  

See how easy that is. 

Birds of a Feather: Sheriff Joe and the FBI - UPDATE

"Stunned the legal community"?  Really?

Well, yeah.  I suppose.  Maybe the mergers and acquisitions guys.  Beyond that?  Only for the saying of it.

Oh, sorry.  You have no idea what I'm talking about.  I was musing over the first sentence of Eric Lander's op-ed in Tuesday's Times.

THE F.B.I. stunned the legal community on Monday with its acknowledgment that testimony by its forensic scientists about hair identification was scientifically indefensible in nearly every one of more than 250 cases reviewed.

Lander says it was no surprise to actual scientists who've known for years that nearly all of what's called "forensic science" is actually forensic bullshit.  But the lawyers have known that, too.  Really, anyone who's been paying attention's known it.

Lander points to a number of cases where the forensic guys told juries they were damn sure and it later turned out that they were just spinning old wives tales.  Those stories, they were in all the papers.  The NAS report?  Been out for five years now.  We've all got copies.

No, the surprise is that the FBI's admitting in broad strokes what it's quietly been acknowledging for a decade or more.  They didn't know what they were talking about - and if they did, they lied.

Because it's not science.  When the so-called expert would get on the witness stand and announce that he's looked at this hair and that hair and by god they came from the same person?  Well, maybe.  Or maybe not.  Because you can't tell.  I mean, it could be true.  Sure.  Unless you actually do something like 

TEST THE FUCKING HAIR

Because you can't tell from the way hairs look.

Shall I go on?

We don't really know about fingerprints, either.  Or shoe prints or tire tracks or ballistics.  One study of the work of forensic bite mark experts showed that they were wrong more than 50% of the time. Get that?  If they said the defendant was guilty because those were his bite marks, that was really evidence that he was probably innocent.*

But the good news is that the FBI is now reviewing a couple of thousand cases where their experts said the hair matched and the person got convicted.  And in some cases executed.  

And the FBI is telling the defendants.  And it's making DNA tests available if the cops or the prosecutor wants them done.  (If the defendant wants them?  Gee, that didn't make it into the announcement.)

Hey, it's a start.  Here's the next step:  Let the state crime lab guys who were trained to be incompetent but pretend otherwise by the FBI own up to the fact that their hair comparison testimony was bull too.  And then start undoing convictions obtained through all the other false science.  All those things based on the crack work of trained lookers who say, 

Gee, those look the same to me.  And since I'm never wrong.

* * * * *

Meanwhile, in federal court in Arizona, Sheriff Joe owns up to the fact that he wholly ignored the court order to stop illegal roundups of everyone who looks like maybe they speak Spanish.

Yes, he said, I didn't give a shit about your fucking orders because I'm the Toughest Sheriff in America™ and get to do whatever I want.  And the taxpayers are happy to pay out millions and millions to settle all the lawsuits against me because I'm the Toughest Sheriff in America.™

Which pretty much calls the question:  Does the judge have the balls to lock the Sheriff up?  Um, probably not.  Still, this is maybe the first time Joe's actually admitted he did something he wasn't supposed to.  

I suppose that's something.

Of course, Joe says he's gonna run again.  For a 7th term.  And he's sure not planning to do it from a jail cell.

And the FBI still sends out bogus forensic "experts."  Just like your local crime lab does.

Plus ça change, plus c'est la même chose

UPDATE

Scott Greenfield rightly points out that it didn't matter that we've been screaming about the incompetent/dishonest forensic faux-science for years - and nobody gave a shit.

While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.

That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official.  Now the legal community cares. That’s stunning. Us, not so much.

----------------

*You could ask Ray Krone who was sentenced to death based on bite mark comparisons - twice.  Finally, the DNA showed what he'd said all along.  Wasn't him.

Snow v. Joe

So they can't figure out what to do with Jodi Arias who either plotted and carried out the cold blooded murder or . . . . Ah, the hell with it. 

Twelve good men (and women) and true couldn't agree unanimously on whether she should be put to death on their direction or spared to spend the remainder of her life in prison with no hope of ever being released.  Execution or Death in Prison.*

Of course, the media knows.  The folks who follow the trial as entertainment know.  Everyone knows.  But those fools on the jury.  Sigh. 

Frankly, there's nothing remotely interesting about the Jody Arias case (unless the near-pornographic salaciousness turns you on).  Well, there is the fact that since the jury couldn't decide the prosecutors can, if they insist on trying to have her killed rather than letting her rot - they get to redo the sentencing phase in front of a brand new 12.  Who will have to learn all the facts and circumstances of the crime, and then all the reasons why she should or should not be --

Good god.  Television may never recover.

Really, though, I didn't want to write about her case.  I have nothing interesting to say about it.  Except, well, it's Maricopa County, and we here at the home office of the Gamso for the Defense blawg haven't been paying much attention to the goings on there since Andy Thomas got his ticket yanked and DOJ finally got around to suing Sheriff Joe.

But now, in one week, there's the penalty-phase mistrial and, finally, a decision in Melendres v. Arpaio.  Friday, the Honorable G. Murray Snow, U.S. District Judge for the District of Arizona (that's him on the right), appointed to the federal bench by President Shrub, issued his Findings of Fact and Conclusions of Law in which he found and concluded that Joe and his deputies operate in exactly as unconstitutional and racist a manner as everybody who actually paid any attention knew they did. 

Their actions, Judge Santos said, violate the Fourth Amendment rights of Latinos in Maricopa County to be free from unreasonable searches and seizures.  And, he said, they violate to "equal protection under the

Fourteenth Amendmentto the Constitution and Title VI of the Civil Rights Act of 1964.

Fernanda Santos in the Times:

At 142 pages, the decision is peppered with stinging criticism of the policies and practices espoused by Sheriff Arpaio, who Judge Snow said had turned much of his focus to arresting immigrants who were in the country illegally, in most cases civil violations, at the expense of fighting crimes. 

He said the sheriff relied on racial profiling and illegal detentions to target Latinos, using their ethnicity as the main basis for suspecting they were in the country illegally. Many of the people targeted were American citizens or legal residents.

To all of which, as you might expect, Tim Casey, a lawyer representing Joe and his boys, said

No flies on us.

OK, I admit that was a bit flip.  Here's what he actually said, according to Santos.

Tim Casey, a lawyer for the Maricopa County Sheriff’s Office, said the office intended to appeal, but in the meantime it would “comply with the letter and spirit of the court’s decision.”

He said the office’s position is that it “has never used race and never will use race to make any law enforcement decision.” 

The office relied on training from the United States Immigration and Customs Enforcement agency, he said, adding, “It’s obvious it received bad training from the federal government.” 

Got that? We didn't do anything wrong. We will of course obey the judge's injunctions, as we always do the right thing.  We're appealing because we always do the right thing.  It's the fault of the federal government that we did the wrong things.  Which we didn't do. 

Anyway, and regardless of the spin, Arpaio and his minions lost.  Which is right and appropriate.  And there is an injunction.

IT IS THEREFORE ORDERED that Plaintiffs are entitled to injunctive relief necessary to remedy the Fourth and Fourteenth Amendment violations caused by MCSO’s past and continuing operations. The MCSO is thus permanently enjoined from:

            1. Detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization.

            2. Following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County.

            3. Using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant.

            4. Using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization. 

             5. Detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law.

            6. Detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present.             7. Detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

And there's going to be a hearing June 14 where they'll all sit down and try to figure out how to make Arpaio actually obey.  Which, you'll recall, he insists he will do since he's never done those things before and certainly won't now because they're right and noble and the American way and the judge said to knock it off and besides, he's appealing to have the ruling overturned so he can go back to doing what he's always been doing which is exactly what he wants not to be ordered to do because then the terrorists communists wetbacks persons of foreign but not northern European extraction who entered this country without authorization from him would win. Or something.

Andy Jackson is said to have said when the Supreme Court told him he couldn't remove the Cherokee to Indian Country,

"John Marshall has made his decision; now let him enforce it."

Patrik Jonsson in the Christian Science Monitor wonders if this isn't a "turning point" for Joe.

But if the court ruling represents a victory for immigration advocates and a legal reversal for Arpaio, it's also clear that, even before the ruling, Arpaio had been losing support among more educated white voters even as opposition against him had galvanized among ascendant Hispanic voters, the Arizona Capital Times newspaper reported recently. Arpaio won reelection with only 50.7 percent of the vote last November, his lowest total.

My friend Nick, who's on the ground in Arizona (though not in Maricopa), had a slightly different take.

People sorta figure he's going to keep doing what he's been doing until he is removed from office, dies, or is sent to prison. 

Which is another way of saying that Joe's likely to channel Andy Jackson's (likely apocryphal) response to a smackdown from the Supreme Court, just changing the name from John Marshall.

Judge Snow has made his decision; now let him enforce it.

Since nobody with any authority in Arizona, and certainly nobody in the Justice Department seems to have the cojones seriously to take Joe on, that leaves the voters and the Grim Reaper.  Of course, Joe just did win reelection.  Then again, he turns 81 in a couple of weeks.

----------
*Actually, it appears that Arizona law also allows a sentence of life with parole eligibility.  All those who think that a likely sentence, feel free to raise your hands now.  That's what I thought.  In any event, parole eligibility isn't the same as parole.  Just ask Susan Atkins.  Ooops, too late.  She's dead.  Died in prison.  After being denied parole. 

Post-Moretem

I haven't been posting lately, and for a variety of reasons it'll probably be another couple of weeks before I'm back at it regularly.  But I'm something of an election junkie, so here are a few observations from last night.

Propositions 34 and 36

Supporters point out that more than four million Californians voted to abolish the death penalty.  That's extraordinary, but it wasn't enough.  Proposition 34 lost by about a half million votes.

Is there a lesson in that?

Here's one.  Economic arguments against the death penalty in a weak economy have force, but not as much force as misleading stories about monsters being set free to rape and pillage and murder at will.  Here's another. If California voters won't vote for abolition, it's probably not a good idea for abolitionists to be aiming for a referendum in other states, either.

But while voters were turning down Prop 34, they voted big for 36.  That was the one to loosen the state's 3-Strikes law.  It passed with just over 2/3 of the vote.  That's a margin of more than 3 million voters which is downright impressive.

But notice that they didn't eliminate three strikes.  They just limited it.  Unless one of the three felony strikes involved guns, sex, or drugs, a third felony won't trigger an automatic 25-life sentence unless it's a particularly serious or violent one.  Or something like that.  Otherwise, the third strike just gets a sentence double what it would otherwise be.  So not paying for the pizza - if that's the third felony - may not lead to a life sentence.  Just years and years.  Which is better, but if I were in the Golden State I probably wouldn't be dancing in the streets over it.

Texas Court of Criminal Appeals

Maybe if the democrats had actually made an effort to oust Killer Keller, there'd be good news on this one.  Maybe not.  In any event, they didn't and she got herself re-elected.

At the same time, and to the surprise I expect of nobody - least of all he - Mark Bennett's quixotic campaign for the Court of Criminal Appeals failed.

Marijuana

Arkansans and Montanans decided the scourge of Killer Weed is sufficiently horrifying that those who needs its health benefits should shut up and suffer.  They turned down proposals to allow medical marijuana.  On the other hand, those drug-addled voters in Colorado and Oregon and Washington voted to legalize a recreational puff.

Of course, Obama won re-election and his justice department has made clear that whatever the states might say, the feds will happily prosecute anyone caught with a few seeds.  It's not like it was an election issue or anything, and there's no reason to imagine that a Romney win would have changed that.  

But the legalization votes signal something important about a change in direction.  Not everywhere and not all at once, but it's a movement.  The drug war isn't anywhere near its last gasp, but there's some indication appearing that its worst excesses are maybe, just maybe, beginning to pose a problem.

Same-Sex Marriage

In state after state after state, voters have enacted bans of one sort or another on same sex marriage.  Those places where it's become legal have achieved legality by legislation or judicial decision.  (And there's a pretty good chance that SCOTUS will rule on the federal defense of marriage act, known as DOMA, this term.)  Until now.

Voters in Maryland and Maine passed referenda in favor of same-sex marriage.  It looks like maybe Washington State voters will, too.  And in Minnesota, while they sent Michelle Bachman back to Congress, they turned down an effort to ban same-sex marriage.

Immigration and Immigrants

If exit polling is to be believed, what everyone paying serious attention expected actually happened.  Latino/Hispanic voters went big for Obama and it's not because they're major fans of the Affordable Care Act or increasing taxes on those making over $250,000 or because they agree with his stands (or maybe half-getting up from his seats) on abortion or same-sex marriage or the right unilaterally to decide which Americans should be killed by drones.  

No, they voted for Obama because even if he didn't actually manage to get the Dream Act passed, he favored it.  And because he didn't announce that they should all be deported - and maybe even deport themselves.  And because he wasn't openly hostile to them.

Because, that is, the Republicans drove them away.  We don't want your kind, they effectively said, which is another way of saying "We don't want your votes."  Which if you're trying to figure out how to drive away voters is a pretty good approach.  But it can be a problem if they all come out and vote against you.  And if they're the fastest growing segment (at least by some measures) of American society.

On the other hand, Joe Arpaio cruised to an easy, and apparently unprecedented, sixth term as Sheriff. So maybe none of that applies in Maricopa County, where not much else that reflects either good sense or the Rule of Law does, either.

Abortion

It should simply be noted that the Senate candidates who said the stupidest things about pregnancy and abortion all lost.  

SCOTUS

Over at The Volokh Conspiracy, David Bernstein offers a series of predictions.  This one is probably right.

I’m pretty confident that Ruth Bader Ginsburg will retire before Obama’s term is up. I’m also pretty confident that unless they die or become totally incapacitated, Anthony Kennedy and Antonin Scalia aren’t resigning.

Democracy

The 1964-65 television season brought a short-lived dramatic series about a state legislator, James Slattery, played by Richard Crenna.  (It apparently played in Latin America in 1967.)

Here's how each episode began, and it's perhaps appropriate that I can only find it with Spanish subtitles.

With All Deliberate Slowness: DOJ v. Sheriff Joe

You'll be shocked, shocked to hear that he didn't just roll over.  Or maybe not.

But then, you don't live in a world where you think everyone should fear you, where you know that the hearts of people in power are all pure.  You don't believe in the Easter Bunny, either, I suspect.

Thomas Perez probably doesn't believe in the Easter Bunny, either (though I don't know that for sure).  He does, apparently, buy into the rest of that.

Perez is the Assistant Attorney General in charge of the Civil Rights Division of the Department of Justice, and he's just deeply disappointed they couldn't work it out.Oh, sure, they disbarred Andy.  Then again, he didn't exactly go gently into that good night, hanging his head in shame.  Hell, from his point of view, he's a martyr.

So what were the odds that Sheriff Joe would cave? Would admit he could use some help?

Gosh golly, I must have fucked up.  Sure, I'll let you guys appoint an overseer to make sure I do better from now on?

No, you wouldn't think so.

Though Perez apparently did. So he's surprised and disappointed that it's come to this.

USA v. Maricopa County - Complaint Mcso Lawsuit

This is only the second time, Perez said, that they've had to sue.  In whole bunches of other cases, from one end of this fine country to the other, they've settled, worked out agreements, collaborated on fixing the problem.  Perez ought to pay attention to his own complaint.  Here, if you don't want to go back up the page, is how it begins.

1. The Maricopa County Sheriff's Office (MCSO) and Sheriff Joseph M. Arpaio (Arpaio) have engaged and continue to engage in a pattern or practice of unlawful discriminatory police conduct directed at Latinos in Maricopa County and jail practices that unlawfully discriminate against Latino  prisoners with limited English language skills. . . . In addition, Defendants MCSO and Arpaio pursue a pattern or practice of illegal retaliation against their perceived critics by subjecting them to baseless criminal actions, unfounded civil lawsuits, or meritless administrative actions.
2. As a result of the pattern or practice of unlawful discrimination, Latinos in Maricopa County are systematically denied their constitutional rights . . . . MCSO and Arpaio's conduct is neither constitutional nor effective law enforcement.

Oh, sure, Joe would sign off on that in a heartbeat.

My bad. Mea culpa. I need help.

Really, though, Joe won't be fixed because Joe isn't the problem.  Perez is.  Or so Joe says. He sees this as an Obama-inspired witch hunt designed to garner Latino votes for the re-election campaign.

We are not racist. We do not racial profile. 

There you go.  Ain't true. How do we know it isn't true?

There's no systemic proof of that.

Ah, if it can't be proved, it didn't happen.  And of course, vindication is on the way.

I'm very happy that we are being sued.

Now, vindication for Joe is an interesting thing. Here's E.J. Montini for the Arizona Republic after talking with Mike Manning, a lawyer who's sued Joe successfully.

In January 1999, Manning got an $8.25 million court settlement for the family of a jail inmate named Scott Norberg, who died while being manhandled in a restraint chair in Arpaio’s jail.

Arpaio declared victory because the monetary judgment didn’t require him to admit guilt.

In 2006 a federal jury awarded $9 million to the estate and the parents of a mentally challenged man named Charles Agster III, who also died in a restraint chair at the county jail.

Again, Arpaio declared victory, this time because the judge reduced the jury’s original $10 million award by a million.

Montini sums it up this way. (The italics are EJ's.)

Arpaio doesn’t lose, even when he loses. Especially when he loses.So look for a declaration of victory.  Some day.

Joe's been Sheriff for decades, and his been doing the same stuff all that time. DOJ began investigating Joe in 2008, when Shrub was still President. It would have gone faster, Perez says, if Joe hadn't been obstructionist. Now, of course, we can assume he'll cooperate.  After all, he certainly won't want to live under the cloud of this lawsuit.

Oh, wait, yes he will.

And then, whatever happens, he'll declare victory. 

Kissing Your Sister

This is not a post about incest.  It's not about sex at all.

Sorry.  No.

This is about the runaway grand jury in Houston. The one that instead of doing the prosecutor's bidding by investigating the folks who blew the whistle on the Houston PD's unreliable mobile breath testing vans (and screwing up DUI prosecutions) decided to investigate the prosecutors.

Well, they're done now.

And you'll be shocked to know that they didn't bring any charges.

As Paul Kennedy explains, that's really no surprise.  The investigation seemed to focus on whether Pat Lykos and her minions hid evidence about just how worthless the Batmobiles were from the defense in DUI cases.  But while a prosecutor who hides favorable evidence from the defense is violating the Constitution, the violation isn't a crime.  It's mostly not even an actionable tort.

But golly, the grand jury wasn't happy.

Brian Rogers in the Houston Chronicle.

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney's office and the Houston Police Department's DWI testing vehicles with a blistering report, but no indictments.

"There was no evidence of a crime," said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA's office for "unexpected resistance" and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

Ah, yes. Blast the office. Criticize harshly. Wag a finger.

Probably, in this case, that's all that's legally possible.  But still, it's unsatisfying.

Coitus interruptus. (Nope, still not about sex.)

* * * * *

I stood, one day, in the well of the court of appeals.  I had a substantive issue in the case, but that's not what the judges wanted to talk about and when you stand before the berobed ones who are asking questions about your case, well, you answer them.  You try to get back to your subject, but ultimately they're in charge, however much you insist on owning the stage, it's their theater.

Anyway, there I stood answering questions about an obviously improper practice of ex parte electioneering communication between judge and jurors.  Everyone knows the judges do it.  Everyone who thinks about it, knows they shouldn't.  And everyone knows that it makes no difference in the outcome of more than perhaps one trial every couple of decades.  If that much.

Because of an oddity in the record of my case, I was able to complain about it on appeal.  I couldn't show it hurt my client, but as a side issue, I figured it would give the court of appeals a chance to stop an impropriety.

But what can we do? the judges wondered.

We know it's wrong, and they should stop, but there's no harm to your client?

Do what you do all the time.  Explain that it's error but harmless.  At least they'll have been admonished, slapped down, told to knock it off.  It may not make them stop, but it might.

But we can't say it's error if it didn't prejudice your client.

What?  You do that all the time.  

But we can't do that.

Yes, of course you can, Your Honorably Confused Ones.

And the opinion came out.  And they never even addressed the damn thing.  And the practice continues unabated, a decade or more later.  And everyone who thinks about it still knows it's wrong.

Really, it probably wouldn't have changed anything if they said it was harmless error.

Judges and prosecutors tend to take that as vindication, not admonishment.  But still.

* * * * *

And the Civil Rights Division of the Department of Justice looked down upon Sheriff Joe after years of investigating and said

Golly, gee.  The old coot doesn't like Hispanics.

Dearie.  He should be nicer to them.

Bad boy, Joe.

Please clean up your act.

Pretty please.

And I mean, they actually could have sued instead of just issuing a report.  Even if there was a press conference, too.  As Scott Greenfield noted at the time,

If Crazy Joe could have paid for a report from the current administration that would establish, for all the time, his imperial hegemony, this would have been it. Merry Christmas, Joe. Love, Barack.

* * * * *

That runaway grand jury?  Here, courtesy of Murray Newman, is what they said.

To:  The Honorable Susan Brown, 185th State District Court
From:  Foreman, 185th Grand Jury, Harris County
DATE:  January 31, 2012
RE:  Our Grand Jury Service

The members of this Grand Jury are honored to have had the opportunity to serve as Grand Jurors for the August 2011 Term, extended to February 1, 2012 for the HPD Mobile B.A.T. Vans investigation.  The privilege to serve the outstanding citizens of Harris County by participating in the determination of probable cause in felony cases and in an investigation is a unique experience essential to the administration of the criminal justice system, and we actively encore other citizens to volunteer for Grand Jury service.

Our attempts to initiate our investigation were met with unexpected resistance from persons in the Harris County District Attorney's Office (HCDAO).  Nothing prepared us for the events that unfolded, some of which are documented in motions filed by the HCDAO and some are in the public domain.  In the days prior to the Court's ruling authorizing the attorneys pro ten to aid in our investigation, an investigator and other senior members of the HCDAO were observed in the hallway outside our Grand Jury meeting room;  we were unable to determine whether this was an effort to track the traffic of witnesses or for purposes of intimidating members of the Grand Jury.  One day while walking on a sidewalk returning from lunch break, some Grand Jury members were photographed by an unknown person in what appeared to be a government issued vehicle, again for an unknown purpose.  We discovered through our investigator that the HCDAO initiated investigations into members of the Grand Jury, the attorneys pro ten and past and present members of the Harris County Judiciary.

Our investigation was distracted by the Assistant District Attorney most responsible for the prosecution of DWI cases invoking her Fifth Amendment right against self-incrimination (publicly reported).  To be perfectly clear, we know the ADA had the right to invoke the Fifth Amendment, but we are deeply troubled that any prosecutor would fear prosecution from a Grand Jury investigation.  The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.

The ultimate standard for prosecutors much be much more than mere obedience to the law; it must be conduct which constantly reaffirms one's fitness for the responsibility and continuously furthers the belief that a DAO exists to ensure an even-handed administration of justice.  Conduct which casts public discredit on the office of the HCDAO as well as on the administration of justice is unacceptable.  While we appreciate the fine line between ethics and the law, our investigation was unable to determine that any criminal conduct had occurred.  But it is clear that the work of this Grand Jury has already resulted in some positive changes in the enforcement of DWIs in Harris County, as the HPD B.A.T. vans are being phased out.  Again, we thank you for the privilege to serve our County.

And that probably really is all they could do.  And damned good for them to do that much.

But do they really believe what they said about the stain?  You know, this.

The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.

Really? 

To those like Lykos, the failure to indict isn't merely grounds for a sigh of relief.  It's hard proof of virginal innocence and a conspiracy.  Brian Rogers again, different story.

At a news conference Tuesday, Lykos lashed out at the report and scolded the grand jury.

"This politically motivated investigation, I would submit to you, is an outrage," Lykos said. "It's an abuse of power and a corruption of the criminal justice system. For months our office has been hounded, and there have been a torrent of grand jury leaks."

And that stain?

"If there is a stain, it is on the people who demagogued this office," she said. "That stain is indelible and, like Lady Macbeth, they will never be able to wipe that spot out."

The truth is that if there's a stain, it rinses away without a trace.
Not Lady Macbeth's crime-induced madness.

Doctor

What is it she does now? Look, how she rubs her hands.

Gentlewoman

It is an accustomed action with her, to seem thus
washing her hands: I have known her continue in
this a quarter of an hour.

LADY MACBETH

Yet here's a spot.

Doctor

Hark! she speaks: I will set down what comes from
her, to satisfy my remembrance the more strongly.

LADY MACBETH

Out, damned spot! out, I say!--One: two: why,
then, 'tis time to do't.--Hell is murky!--Fie, my
lord, fie! a soldier, and afeard? What need we
fear who knows it, when none can call our power to
account?--Yet who would have thought the old man
to have had so much blood in him.

Doctor

Do you mark that?

LADY MACBETH

The thane of Fife had a wife: where is she now?--
What, will these hands ne'er be clean?--No more o'
that, my lord, no more o' that: you mar all with
this starting.

Doctor

Go to, go to; you have known what you should not.

Gentlewoman

She has spoke what she should not, I am sure of
that: heaven knows what she has known.

LADY MACBETH

Here's the smell of the blood still: all the
perfumes of Arabia will not sweeten this little
hand. Oh, oh, oh!

Doctor

What a sigh is there! The heart is sorely charged.

Gentlewoman

I would not have such a heart in my bosom for the
dignity of the whole body.

Doctor

Well, well, well,--

Gentlewoman

Pray God it be, sir.

Doctor

This disease is beyond my practise: yet I have known
those which have walked in their sleep who have died
holily in their beds.

LADY MACBETH

Wash your hands, put on your nightgown; look not so
pale.--I tell you yet again, Banquo's buried; he
cannot come out on's grave.

But Macbeth's exhausted fatalism.

To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day
To the last syllable of recorded time,
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

Pre-Holiday Presents and Other News Items

I could write about how death sentences are down.

I could write about how Judge Faye D'Opal of Marin County Superior Court said that California's six-year effort to revise its execution process resulted in an invalid procedure and the whole thing needs to be restarted.  Judge D'Opal explained.

The Initial Statement of Reasons (ISOR) and the Final Statement of Reasons (FSOR) each substantially failed to comply with the APA requirements by not considering and describing alternative methods to the three-drug protocol; by failing to provide a sufficient rationale for rejecting these alternatives; and by failing to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug procedure, in violation of § 11346.2(b)(3)(A) and § 11346.9(a)(4).
“If an agency adopts a regulation without complying with the APA requirements it is deemed an ‘underground regulation’ (Cal. Code Regs., tit. 1, § 250) and is invalid. [Citation.].” (Naturist Action Committee v. California State Dept. of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250.)

I could write about how the feds have finally figured out that Sheriff Joe doesn't much like people of Hispanic descent.  Shame on him, they say. 

Per Marc Lacey in the NY Times.

“We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights, noting during a conference call with reporters on Thursday morning that more than 400 inmates, deputies and others had been interviewed as part of the review, including Sheriff Arpaio and his command staff. Mr. Perez said the inquiry, which included jail visits and reviews of thousands of pages of internal documents, raised the question of whether Latinos were receiving “second-class policing services” in Maricopa County.
Mr. Perez said he hoped Sheriff Arpaio would cooperate with the federal government in turning the department around. Should he refuse to enter into a court-approved settlement agreement, Mr. Perez said, the government will file a lawsuit and the department could lose millions of dollars in federal money. 

I could write about how President Obama decided that revisions to the defense authorization bill satisfied his concerns so he won't have to veto the bill.  This, of course, is the bill that, as Charlie Savage put it in the Times, authorizes

the government to detain, without trial, suspected members of Al Qaeda or its allies — or those who “substantially supported” them.

Former constitutional law professor Obama's concern, of course, wasn't that eternal detention of US citizens in military prisons simply because they are suspects might violate the Constitiution.  Pish tosh.  No, his concern was that the FBI would be hamstrung in its efforts to interrogate those folks.  The FBI still thinks it will, but his Barakness is no longer worried.

Those things and more could be the subject of this post.  And one or another might have been.

Except that the Ohio Supreme Court, bringing holiday cheer early (albeit slowly) to the prosecutors of Summit and Preble Counties, this morning granted their motions to kill.

• Ronald Phillips is to be killed by the State of Ohio on November 14, 2013.
• Dennis McGuire is to be killed January 16, 2014.

Presumably, neither Phillips nor McGuire will cherish this holiday gift.  Regardless, Ohio has now got murders planned more than two years into the future.

Justice Pfeifer, who on Wednesday explained that his personal opposition to the death penalty wouldn't prevent him from signing off on executions signed off on both murders.  

And there's still two weeks left to the year.

Sheriff, Arrest Thyself

I turned to the Arizona Republic because I wanted to write about the execution this evening of Donald Beaty.  I still want to, and I will.

But you know how it is when you dip a toe into the waters deserts (that's not fair, there's water, in the Copper State, too) of the Grand Canyon State.  You just get sidetracked because dammit, Sheriff Joe and the boys have made the news again.

This time it isn't Joe himself making the headlines, it's three of his minions.

3 in MCSO accused of cartel ties

Seems that Tuesday morning, following a yearlong investigation, a Multi-District Drug Task Force arrested a dozen people and darned if three of them didn't work for Joe.

Deputy Alfredo Navarrette, 37, has worked with the Sheriff's Office for nearly a decade, serving in a special unit designed to target human smugglers moving through Maricopa County. But investigators believe Navarrette was himself involved in human smuggling. Investigators found two undocumented immigrants in Navarrette's home when he was arrested early Tuesday morning in a sweep that concluded a yearlong investigation.
"The fight against drugs, illegal immigration and human trafficking is important not only to me but the citizens of Arizona," Sheriff Joe Arpaio said. "That a deputy sheriff would provide information and associate with these drug and human traffickers is despicable."
Investigators from a multijurisdiction drug task force also arrested two sheriff's detention officers, Sylvia Najera, 25, and Marcella Hernandez, 28. They are accused of laundering money and moving drugs for a Valley-based drug-trafficking organization with ties to Mexico.
Arpaio said Hernandez is eight months' pregnant with the child of another suspect arrested Tuesday, Francisco "Lorenzo" Arce-Torres, who is described in court records as a member of the Sinaloa drug cartel and the leader of the Phoenix-based drug-trafficking organization at the heart of the probe.
Court records indicate Hernandez had $20,000 cash on her when she and Najera were arrested Tuesday morning on their way to work at the Lower Buckeye Jail.

So, let's recap.  Three of Joe's folks are busted for being part of a drug smuggling ring.  One of them is part of Joe's special anti-immigrant unit and allegedly hires or harbors or something undocumented immigrants.  That's embarrassing.  Another is 8 month pregnant with the child of the head of a drug cartel.  A third is carrying 20 grand that are, supposedly, drug proceeds.

Are any of the three (hell, any of the 12) guilty?  No idea.  Innocent people get arrested all the time.  So do guilty ones, of course.  But it isn't pretty.

And Joe?

Physician, heal thyself.

Schadenfreude.

Maricopa One Again

It's not what we've been waiting for.  

We've been waiting for the Justice Department to sue Sheriff Joe (and Andy Thomas) for abuse of their power, for violating the constitutional and statutory civil rights of the people of Maricopa County.  This, though, is what we got.

US v. Arpaio  

What we got is that Justice sued Joe for being contemptuous.  They don't call it that, of course, but that's what it comes to.

One provision of the 1964 Civil Rights Act says that if you take federal money, you have to give the feds access to your facilities and records so they can assure you spend it in compliance with the law.  (I'm oversimplifying a lot.)  Maricopa and Sheriff Joe have taken federal money.  The feds have been investigating since June 2008.  They've been trying to get records since March 2009.

Joe won't give access and won't turn over the records.  He's said so repeatedly, by public statements and in direct communication with Justice.  Justice narrows the request.  Joe refuses.  Justice repeats the request.  Joe refuses.  Justice says pretty please with chocolate sauce and a cherry on top.  Joe holds a press conference and tells them to fuck off.  Justice asks again, on bended knee.  Joe . . . .

You get the idea.

So finally, Justice sues.

Not for violating anyone's civil rights.  Just for being an obstructionist pain in the ass.  For dissing the feds.

Sigh.

Yvonne Wingett, JJ Hensley and Michael Kiefer lay out charges and counter-charges in the Arizona Republic.

The federal investigation dates to 2008 and seeks to determine whether the Sheriff's Office discriminates on the basis of national origin. Arpaio denies any discrimination and said he was surprised by the lawsuit. He has 21 days to respond.
The civil-rights probe is unrelated to a separate abuse-of-power criminal investigation against the Sheriff's Office by the Justice Department, which is connected to long-running disputes with county government and the judiciary and has led to months of grand-jury testimony.
Attorneys for the Sheriff's Office repeatedly have said they were cooperating with the civil-rights probe but set conditions on the breadth of documents they would release and when. Last week, a sheriff's attorney said in a letter to the Justice Department that he had not agreed to their deadlines.
On Thursday, federal officials made good on their threat to sue. Justice Department officials could not point to a case within the past 30 years in which they had to sue a law-enforcement department to provide access to information.
Dennis Burke, U.S. attorney for Arizona, said that Arpaio's behavior is "self-serving" and pointed out that the Sheriff's Office is legally obligated to provide access to records and facilities because the office receives federal money.
"This is about accountability, and the Sheriff Office's lack of it," Burke told The Republic. "They're trying to design their own self-serving, contorted rules, and they expect unprecedented special treatment different than any other law-enforcement agency across the country - or in history. They want to voluntarily comply with what they want to comply with - despite repeated requests over 17 months."
Attorney Robert Driscoll, who has been negotiating with the Justice Department on Arpaio's behalf, denounced the lawsuit as an attempt to undermine Arpaio's immigration enforcement.
Arpaio released a statement saying President Barack Obama's administration "intended to sue us all along, no matter what we did to try to avert it."
But, according to the lawsuit, officials in the Justice Department's civil-rights unit first started looking at allegations of civil-rights violations by the Sheriff's Office in June 2008, during the George W. Bush era. The probe was not revealed publicly until March 2009.
Arpaio, however, contends the inquiry is part of a conspiracy connecting the White House, Phoenix Mayor Phil Gordon and local advocacy groups.

Stephen Lemons, the Feathered Bastard blogger for New Times is less even-handed restrained.  He calls the lawsuit what it is, "a trumped-up public records request."  The caption on the photo of Joe not-quite giving the finger says it all.

Forget the lame lawsuit, we want to see Joe indicted.

But you know, substantive lawsuits, let alone criminal charges, those are serious things that require who knows what all.

This is just your ordinary contempt of cop charge, except it's contempt of Justice and doesn't get anyone kneed in the groin or shot with a Taser or arrested.  It's just played out politely by lawyers and press agents.

Maricopa County executives, who can't restrain Joe, wring their hands while they quake because it turns out that the surprise winner of the primary contest to replace Andy as County Attorney is another lapdog for Sheriff Joe.  And Joe gets to prance around talking about conspiracies and witch hunts.

And the people of Maricopa?  They stood up one day.

But they keep voting him in.

The refrain to the Phil Ochs song is "Mississippi, find yourself another country to be part of."

And Maricopa?

Who's singing that story?

And who all cares?

Gifts That Keep On Giving

There's Maricopa County, of course, and frankly the whole state of Ariz (show-me-your-papers) ona.  But Andy hasn't made much fuss since the dead Rhino ad, and Joe chickened out of the run for Governor.

Sharon Keller's been lying low since she was fined $100,000 last week (though if they do prosecute her criminally for ethics violations that will be a circus worth attending) and while we wait for the State Commission on Judicial Conduct to decide what to do about the disciplinary charges against her (no links, it's everywhere, do your own homework).

John Bradley continues to do his best to ensure that the Texas Forensic Science Commission won't actually do a thing until at least 2011, and then will do it in secret and whitewash the whole Willingham fiasco.  Hell, I didn't even write about the last Commission meeting.

Fortunately, there's still Shirley Strickland Saffold and her not-so-secret identity as "lawmiss."

Saffold, of course, is the judge in Cuyahoga County who comments on stories on the Cleveland Plain Dealer web site - including on stories about the cases and before her.   (Oops, my bad.  It's probably not her.  I don't want to be sued for $50 million for a mistake like that.)

Turns out that, like all serial commentators, lawmiss doesn't have just one place at which she mouths off.  Per yesterday's Plain Dealer:

Now, a search of Web sites visited by Saffold's courthouse computer has turned up lawmiss usernames on at least 10 other Internet domains. Lawmiss comments on sites other than cleveland.com attack Arabs, disparage Asians and vilify white men. They sneer at inter-racial relations, condemn homosexuals and rail against police.

The PD doesn't exactly say that Saffold is lawmiss, but they sure make clear that it's likely.  And they give us plenty of examples of just what - too much fun.  I'll reprint the offensive stuff from the paper.

Lawmiss called Asians "flat face morons" when remarking on a story about the Chinese volleyball team.

And a story about a racist remark against the president prompted lawmiss to rail against whites: "how can white men be christan's, it's impossible. Their nature is to be nasty, convining, and decietful. They lie, they cheat, and they steal. And, they do it in a suit."

Lawmiss on AOL also insults people based on religion.

After France proposed banning burqas, lawmiss wrote "yeah, they ought to ban them, and if the muslims don't like it, then go home. you can't see their faces, you can't tell if they're men or women and they're criminals. if they want to wear that crap, then they ought to stay in saudi arabia, where it's acceptable and they have no intention of blowing anyone up."

An article about Ellen DeGeneres prompted Lawmiss to attack gays.

"She's s dyke, and that's all she's competent at. She's no dancer. Nest think you'll know the gays will take over."

Lawmiss attacks law enforcement, too.

A story about a police shooting in New Orleans induced lawmiss to comment
"Add this incident as another reason that Black people can NOT trust the police," lawmiss states. "What pigs---and what made them think they could get away. I suppose they considered that they could put on white hoods and ride in the middle of the night and scare the be-jesus out of people, so no one would tell." 

The story appeared yesterday.  Perhaps as a Mother's Day present, her daughter will take responsibility for all these comments, too.

And perhaps we ought to reconsider how people get to be judges in the great state of Ohio.

h/t Terry G