Sunday, March 28, 2010


Reginald Clemons, a Missouri death row inmate, awaits a hearing on whether there is new evidence of his innocence. A recent news story, which can read at the link below, reveals that the Missouri Attorney General recently told the court handling Mr. Clemons’s appeal that physical evidence, some of which may contain DNA, has been discovered in law enforcement files. This evidence may not have been available to Mr. Clemons’s trial attorneys. Like most online news stories, this one drew many comments, some welcoming the inquiry into Mr. Clemons’s evidence, and some condemning it. One comment (not on the website listed below) was, “Why is this murderer breathing my air?”

A recent story on NPR concerned released prison inmate Felix Aponte, who donated his kidney to save the life of another man he met in prison. That link is below, too. Mr. Aponte explained, “I wanted to do something good in my life for the first time. All I've done is like, mischief.” This story generated a vigorous dialogue, with some people concluding that since the “hero” of the story was a convicted felon, his good deed should be discounted.
These news items and comments reminded me of a story in one of my favorite children’s books, Wayside School is Falling Down, by Louis Sachar. Myron, a student at Wayside School, feels trapped by school rules. After lunch, instead of going back to his classroom, he goes down to the dark, mysterious school basement. There, he meets a man who asks him, “Do you want to be free, or do you want to be safe?” He explains that if Myron wants to be safe, he’ll have to follow all the rules, go to school, brush his teeth. . . Or he can be free. “I want to be free,” says Myron. He signs a paper “written in some kind of foreign language.” Thereafter, Myron doesn’t have to do anything the teacher says, and there is nothing she can do about it.

Deciding to be free requires us to realize that the world actually does not revolve around us. The air we breathe doesn’t belong to me, or to Reggie Clemons, or to the man who commented on the story. Being free also requires us to realize that the world is uncertain, sometimes apparently written in a foreign language. It is easy to say, “Well, the jury convicted Reggie Clemons, or Felix Aponte, and the appeals court affirmed, so they must be guilty, and we can forget about them.” That is the safe way. But it is not the free way. Freedom requires us to let go of our prejudices and admit the possibility of uncertainty. Of course, even before Myron signed the paper, he didn’t have to sit in his seat and brush his teeth. He just had to accept the consequences if he didn’t. In the same way, if we let go of the notion that everyone convicted by a court is guilty and can never change, we will be faced with uncertainty. Sometimes the results will be good. Sometimes they will be bad. But that’s what freedom entails.

There are advantages to being safe. Life is predictable, not upsetting. Risks are avoided. And there are advantages to being free. Freedom brings adventure, expanded possibilities, new experiences. So, do you want to be free, or do you want to be safe?

Friday, February 19, 2010


Over two years ago, I wrote a piece for this blog called “Addiction to imprisonment.” Now, with the economy in distress, some government and judicial leaders are looking at kicking the habit. Consider the statements of Judge William Ray Price, Jr., the chief justice of the Supreme Court of Missouri, at his recent “State of the Judiciary” speech:

“For years we have waged a “war on drugs,” enacted “three strikes and you’re out” sentencing laws, and “thrown away the key” to be tough on crime. What we did not do was check to see how much it costs, or whether we were winning or losing. In fact, it has cost us billions of dollars and we have just as much crime now as we did when we started. We have created a bottleneck by arresting far more people than we can handle down through the rest of the system. . . . It does no good to commit resources to law enforcement and to arrest criminals if you don’t know what you are going to do with them, or you cannot afford to do what you should with them, after they have been arrested. It does no good.”

Judge Price went on to address the crisis in the Missouri Public Defender System and the inequities in the prosecution of offenses in Missouri, both topics that deserve posts of their own. Then he went on,

“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders. It is costing us billions of dollars and it is not making a dent in crime. Listen to these numbers. In 1994, shortly after I came to the Court, the number of nonviolent offenders in Missouri prisons was 7,461. Today it’s 14,204. That’s almost double. . . . In 1994, appropriations to the Department of Corrections totaled $216,753,472. Today, it’s $670,079,452. The amount has tripled. And the recidivism rate for these individuals, who are returned to prison within just two years, is 41.6 percent. . . . [T]he simple fact is, we are spending unbelievable sums of money to incarcerate nonviolent offenders, and our prison population of new offenders is going up, not down -- with a recidivism rate that guarantees this cycle will continue to worsen at a faster and faster pace, eating tens of millions of dollars in the process. Missouri cannot afford to spend this much money without getting results. The problem is that we are following a broken strategy of cramming inmates into prisons and not providing the type of drug treatment and job training that is necessary to break their cycle of crime. Any normal business would have abandoned this failed practice years ago, and it is costing us our shirts.”

And, Judge Price proposed a solution: “We need to move from anger-based sentencing that ignores cost and effectiveness to evidence-based sentencing that focuses on results—sentencing that assesses each offender’s risk and then fits that offender with the cheapest and most effective rehabilitation that he or she needs.”

No one who follows the Supreme Court of Missouri would describe Judge Price as soft on crime. So when he shows signs of having awakened to the imprisonment addiction problem—aptly described as “anger-based sentencing—it gives me real hope that change is possible.

Judge Price’s proposals, although they suggest a major change in direction, are not radical enough. He seems to think that whatever we do to persons convicted of violent offenses is still all right. (“Violent offenders need to be separated from us so they cannot hurt innocent men, women or children, regardless of the cost.”) Actually, there have been recent advances in the treatment of violent offenders that show significant promise. In an Australian study of the effects of restorative justice programs, which allow crime victims to interact with the offenders, “In the first two years after arrest, violent offenders who participated in conferences had about 50 percent less reoffending than those who went to court.” (The study also noted positive effects for victims. For example, “Almost half of the court-assigned victims said they would harm their offenders if they had the chance, compared to only 9 percent of conference participants.”) Interestingly, restorative justice techniques seem to reduce recidivism more among violent offenders than non-violent offenders. That’s not an argument for locking up more non-violent offenders; it just means that other techniques may be needed for rehabilitation for them.

But the major good news here is the suggestion of a shift in focus back to rehabilitation from “anger-based sentencing.” That will have several salutary effects, if it occurs. It will bring marginalized persons back into the work force and into full participation in their communities. It will save money. And it will fulfill the admonition of Jesus that: “I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.” Matt. 25:40, NIV.

Friday, January 1, 2010


First, an update to an earlier post, “The Statute of Limitations is Not a Technicality.” At the time that post was written, a panel of the United States Court of Appeals for the Fifth Circuit had overturned the conviction of James Ford Seale for violating the civil rights of Charles Moore and Henry Dee, who were kidnapped and murdered by the Ku Klux Klan in Mississippi in 1964. The reversal was based on a ruling that the statute of limitations for the offense charged had expired before the charge was filed. However, the en banc Fifth Circuit (a group made up of all of the judges of the Fifth Circuit in active service), voted to grant rehearing. After argument, the vote of the en banc judges on whether the conviction should be affirmed or reversed was evenly divided. Under court rules, this had the effect of reinstating the judgment of conviction, although the decision to do so is not precedent for further decisions on the issue.

One way to look at this development would be to say, “Well, I guess the statute of limitations is a technicality after all!” Another way to respond would be to say, “Hard cases make bad law.” A quick Google search of this old saying shows that it may have originated, at least in print, in W. S. Holdsworth’s History of English Law, published in 1926. (Other references suggest it was first said by Oliver Wendell Holmes.) What this saying means is that when a case presents facts which seem to call for one resolution, while the law is on the other side, the facts generally win. I am reminded of a drug case I lost several years ago despite what appeared to be a meritorious search and seizure violation. I asked the lawyer for my client’s co-defendant why he thought this had happened. “Oh,” he said, “It’s the too much dope rule.” That is, the judges decided there was too much dope in the case for the defendants to win. In Mr. Seale’s case, apparently half of the judges on the Fifth Circuit Court of Appeals were unwilling to allow him to go free, despite the fact that the law would seem to require that result.

There is a certain satisfaction in seeing a case come out the way the facts seem to dictate. I’m sure NPR Commentator Juan Williams, whose criticism of the earlier Seale opinion spurred me to write the earlier post, was gratified when Mr. Seale’s conviction was ultimately upheld. But there is a danger in allowing this satisfaction to go too far. Recently, I was reading a Texas case in which a conviction for murder was reversed because of grand jury error. The prosecutor in that case admitted that, in violation of long-standing and clearly stated Texas statutes, he routinely allowed police officers to enter the grand jury room and cross-examine witnesses. The court reversed the conviction, finding that absent this violation, it was unlikely that the defendant would have been indicted. The court then took the opportunity to explain the decision of public officers to follow the letter of the law was aptly described as follows:

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives."
United States v. Lee, 106 U.S. 196, 220. . . (1882). . . .

We are mindful that a finding of harmful error here may mean this case will be tried again. Regretfully, witnesses will be inconvenienced and the finality of justice sought by those who were touched by this child’s death will be disturbed. Any benefit that society will derive from rendering the just result in this appeal cannot, and will not, assuage the suffering that a second trial may cause those close to the victim. Nevertheless, we are duty bound to uphold the law and follow the old adage that “two wrongs do not make a right.” If the State is able to avoid a just result in this case, its prosecutors will be able to violate these statutes with impunity and visit an injustice upon every citizen who comes under scrutiny by a Potter County Grand Jury. The statutory protections, adopted by the Legislature to level the field for an accused, will be substantially eroded and we will be at risk of losing the benefit of statutory procedures intended to protect our constitutional right to indictment if these violations are simply swept aside.

Regarding the cost of a second trial, if one follows, unfortunately this cost would be borne by taxpayers who had no hand in the State’s error. This is particularly unfortunate because the State’s error, as well as this possible cost, could have been avoided if the State had simply obeyed the law. Something the State requires of its citizens on a daily basis.

We cannot countenance the State's purposeful violation of the law. The duty Mason v. State, 290 S.W.3d 498, 511 (Tex. App. – Amarillo 2009, pet. granted). It should be noted that this Court’s opinion will not be the last word on this case. The notation “pet. granted” in the citation means that the Texas Court of Criminal Appeals, that state’s highest court for criminal cases, has agreed to review the Amarillo court’s opinion. So, we may find, once again, that hard cases make bad law. In the meantime, though, we can thank the Texas Court of Appeals, Amarillo district, for reminding all of us, and all judges, that “[W]e are duty bound to uphold the law and follow the old adage that ‘two wrongs do not make a right.’”