Sleepless in Midland

The arson trial, the guilty verdict, the execution, and the Texas Governor

Texas Governor Rick Perry replaced the head and some members of the Texas Forensic Science Commission (TFSC) in September, and some are crying foul -- CNN, for example. Before the shake up, the TFSC had hired a consultant to investigate and report on the case against Cameron Todd Willingham who had been convicted and executed. And there's the lingering feeling among death penalty opponents that Governor Perry was trying to sweep the whole thing under the rug. Examples here and here.

The Willingham case

It happened a couple of days before Christmas in 1991. The wife left the house that morning while Mr. Willingham and the three children slept. A fire broke out, Mr. Willingham got out of the house with minimal injury, but the three children perished. Mr. Willingham was accused of deliberately starting the fire, and he was tried, convicted and executed.

Was Mr. Willingham guilty? At this point it's hard to say. The consultant hired by the TFSC reported that a State Fire Marshal made some conclusions that, based on the available evidence, would not be sound by today's standards. But Mr. Willingham's story had some holes in it, for example, he said escaped the fire through the kitchen door. However, the first firefighter on the scene said there was a refrigerator blocking that door. And there's this:

Fireman Franks also said that after the fire, Mr. Willingham came back to his house and poured a large bottle of British Sterling cologne on the floor from the bathroom to the room in which the twins had died and said that if any more samples were taken from the floor, those samples would have cologne on them.

What should a juror make of that behavior? Was he trying to contaminate the scene? There was a jailhouse snitch, too, who said Mr. Willingham confessed that he had deliberately set the fire to cover up an injury he caused to one of the kids.

The jury was convinced, but who knows what really happened? Anyone interested should read the consultant's report and the Corsicana Fire Department's response.

Texas Forensic Science Commission

Back to the shake up at the TFSC. The TFSC was created in 2005 by H.B. No. 1068. It established a nine member commission with the following duties:

Sec.4.DUTIES.(a) The commission shall:
(1) develop and implement a reporting system through which accredited laboratories, facilities, or entities report professional negligence or misconduct;
(2) require all laboratories, facilities, or entities that conduct forensic analyses to report professional negligence or misconduct to the commission; and
(3) investigate, in a timely manner, any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity.

Put simply, the TFSC was created to oversee crime labs. And it was probably a legislative reaction to all the reports of bad science coming out of the crime labs in Houston and elsewhere in the state.

However, the TFSC seemed to have gone off track a little bit when it got involved in death penalty politics. Before the shakeup they had not established any policies and procedures to accomplish their legal duties. And the hiring of the consultant to scrutinize and try to disprove the Fire Marshal's testimony in the Willingham case may have been beyond their authorization.

It shouldn't have come as a great surprise, then, to see the shakeup. And the new presiding officer, Williamson County District Attorney, John Bradley, maintains his independence from the governor. And they will issue a report on the Willingham case, eventually.

So those of us out here in flyover country should just sit tight and wait for their report. Some mistakes were probably made in the investigation, but nothing is going to bring Mr. Willingham back to life, and the TFSC is not going to rule or even opine on his guilt or innocence.  And there are plenty of other reasons to critize the Governor without trying to build up an issue on this case.

Gun safety lesson from the Courts: Don't sue the manufacturer if your handgun injures you

Remember that guy who sued Smith & Wesson after he injured his finger while firing a .460 caliber revolver? It was a powerful handgun with a strong recoil, so he tried to hold on to it with both hands. However, he had his left fingers too close to the gap between the barrel and the cylinder. The gas pressure sliced his left index finger, and two surgeries later, he ended up with a short index finger.

What made this one big news was that he sued Smith & Wesson. However, in August the court tossed out the case by granting S&W's motion for summary judgment. Anyone interested in it can click here to read the opinion.

But here are some interesting aspects of the case and the court's opinion. It seems that the defendant had burned his hand once before doing the same thing with a smaller caliber revolver. So he should have had a sense of the danger. However, he contended that he didn't realize how much more pressure the bigger caliber gun would produce.

The manual that came with the handgun warned about keeping the fingers away from the area between the barrel and the cylinder and explained why. But the shooter hadn't read the manual. There's your problem.

S&W won the motion, and the case was tossed.

The federal court judge in Dallas seemed to believe that state court law holds that handgun dangers are common and obviously known, and the opinion contained this,

"Cases applying Texas law have been unanimous in holding that there is no duty to warn of the obvious dangers of owning or selling a handgun. ... Defendant has no duty to warn of the dangers associated with the revolver, thus, summary judgment is appropriate."

Hmm, interesting observation. Maybe the dangers were known to this particular plaintiff, anyway. But, the plaintiff hadn't provided any evidence that the warning in the manual was inadequate, and surely that had to have been the deciding factor.

I question how commonly known the danger was in 2006 when the accident occurred. But it made the news when the fellow filed suit. And there was another instance which got thorough internet play in which a shooter's thumb was injured. (Some gruesome photos are still online for anyone interested in seeing them.) And helping to bring attention to this problem, Mythbusters even did a segment on it confirming that the expelled gasses could sever a hotdog. Actually, the fact that Mythbusters did a feature on it suggests that it might not have been such common knowledge after all.

In any event, with all that has transpired, at least we might be able to say now that the dangers are commonly known.

The case was Foltz vs. Smith & Wesson Corp. No. 3:08-cv-00858-K, U.S. District Court for the Northern District of Texas, Dallas.

Problems with Appraisal Review Boards and Amendment #3 to Texas Constitution

Last month there was an article in the MR-T which told how the Midland Central Appraisal District review board had agreed to lower by 25% the valuation of certain properties with contaminated well water, but the reduction would apply only those properties with owners who had protested the original valuations.

Others in the vicinity, according to the aforementioned article, would receive a 10% reduction in valuation but only if they had protested the original valuation.

That result, if it's still standing, is a reward for those who protested yet nothing for those who didn't. That doesn't seem fair to those who didn't protest since the appraised values were supposed to be the market values as of 1/1/09. And perhaps this is a good demonstration of the problem with local boards operating under their own guidelines.

There are probably countless scare stories that have come out of the hearings with the appraisal review board. Here's mine from a few years back, before the last boom.

There's a neighborhood condition which I had previously addressed with one of the appraisers, and he agreed to give me a discount due to that condition. That lasted a couple of years, then the discount disappeared without explanation. I filed a notice of appeal, and had a hearing with the review board. I explained about the condition that should have qualified for the discount and showed them photos of problems with the house that would be expensive to repair, for example, the place needed a new roof. They agreed to put back the old discount but ignored any physical problems with the property that in the real world would have reduced the market value.

This was before the recent housing boom, and anyone selling a house had to fix it up to get a buyer. The appraisal valuations were based on what comparable houses sold for during the previous year, but those houses were in tip top shape when they were sold. They had to be at that point in the market cycle. Once the owner had fixed up his/her property and sold it, that selling price became the new market value for appraisal district purposes. The houses down the street that needed repairs just got a new value as if those repairs had already been made.

The appraisal review board could not see any problem with that. The chairman of the board told me that his wife just got a new puppy, and he knew that he was going to have to get new carpet as a result. He shrugged and told me that I would get a new roof and repair the other problems with my house, and there would be no reduction to the valuation of my property due to those problems. Well, he was partly right, I did eventually get a new roof some years later and repaired some but not all of the problems. But what happened a few years later should have had no bearing on the market value as of the first day of the year when the appraisal was supposed to have been effective.

Constitutional Amendment #3 on the Texas ballot this November addresses standards and procedures for property tax appraisals, and if it passes, the Texas Constitution will be changed as follows:

ARTICLE 3. UNIFORM APPRAISAL STANDARDS AND PROCEDURES SECTION 3.01. Section 23(b), Article VIII, Texas Constitution, is amended to read as follows: (b) Administrative and judicial enforcement of uniform standards and procedures for appraisal of property for ad valorem tax purposes shall be [, as] prescribed by general law [, shall originate in the county where the tax is imposed, except that the legislature may provide by general law for political subdivisions with boundaries extending outside the county]

Read all the amendments and see some explanations in analyses09.pdf. And as to Amendment #3, what is does is simply give the legislature the power to make laws regarding the appraisal districts' practices and procedures. Those laws aren't even on the drawing board yet.

We know that there are problems with the current process, but if this amendment passes will the Texas legislature step up and come up with something that will help property owners? Would they be able to resist lobbying by municipalities? The question voters will have to ask themselves is whether they trust the state legislature or their own local appraisal board members more. Those of us who don't trust either of them will have a tough call.

If our government really wanted to help the citizens it would grant voters the right to put their our own initiatives and referenda on the ballot.

Texas Journalist Shield Law -- poor journalists hit hardest

The bill is sitting on Governor Perry's desk right now awaiting his signature (or veto), according to Texas Legislature Online.

If it gets signed into law it offers journalists a limited privilege against testifying in state courts. But there are exceptions, and the journalist has to testify in a civil proceeding if the requesting party can convince a court that he really, really needs the info and has exhausted all reasonable efforts to get it elsewhere.

In a criminal case the journalist has to testify about a confidential source if the journalist witnessed the crime; heard a confession; probable cause exists of a felony crime but law enforcement has exhausted all reasonable efforts to get the information otherwise; or disclosure of a confidential source is reasonably necessary to prevent someone from getting killed or seriously injured.

You can read the whole thing by clicking here.

To me the most interesting piece of this legislation is the definition of "journalist." The main stream media have been lobbying for a shield law in Texas for years, so they are the ones who get the privilege, not that bloggers would expect any special privileges anyway.

It's all about how the journalist makes income. A "Journalist" is someone who is earning a "substantial portion" of his/her livelihood by obtaining or preparing information for dissemination by a news medium or communication service provider.  No income, no privilege.

Any part time journalists out there may need to ask for raises or quit the other job to fit under the "substantial portion" part of this shield.

Thanks for the heads-up to MyWestTexas.com which is brimming with journalists that fit the definition, so any tattlers out there who expect to be shielded by this law might want pay them a visit. Read the whole thing first as there are other exceptions not mentioned here.

Updated 5/15/09. The governor signed it on May 13, and the bill takes effect immediately. See Governor's news release.

Texas firearm freedom law tiptoeing through Texas Legislature

Montana lawmakers did it first with the Montana Firearms Freedom Act which was recently signed into law. Here are the guts of the Montana law:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce.

Leo Berman of the Texas House of Representatives has introduced one in Texas, and H.B. No. 1863 is creeping along. Here's a link for the text, and here's the key part:

Sec. 2003.003. NOT SUBJECT TO FEDERAL REGULATION. (a) A firearm, a firearm accessory, or ammunition that is manufactured in this state and remains in this state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.

A cursory look suggests that the entire bill is very similar to the Montana law as both laws exclude guns too big for one person to carry, a gun with a barrel bore larger then 1.5 inch, exploding bullets, and fully automatic weapons. Lawmakers in both states must be concerned about keeping down the noise as sound suppressors are included in the definition of "firearm accessory." (Would that be silencers?)

The Montana law passed muster with legal scholars, but no one can safely predict what the U.S. Supreme Court would do with it especially with the upcoming change in personnel.

In any event, H.B. No. 1863 may be one to watch.

Odessa American shielding commenters from police

That hoax on the Odessa Police generated by Barry Cooper and his Kopbusters with the fake grow house in Odessa has certainly been an interesting story. And now there may even be a First Amendment issue.

To recap, a local preacher took a letter to the OPD. The letter provided an address of a house and said the resident of the house was growing marijuana plants and was planning on harvesting them soon. So the OPD obtained a search warrant and entered that house. That's when discovered that it was all a hoax and that they were being videotaped.

There was some controversy about the affidavit for the search warrant as the affiant identified the preacher as Terry Pierce. It turns out that the name of the preacher was Terry Pugh, according to an Odessa American article by Doug Carman. And the OPD maintains that it was a simple mistake by the officer who signed the affidavit.  (Link to a reproduction of the affidavit can be found below.)

The OPD, understandably, wants to try to identify the person who delivered the letter to the preacher.  And according to this unsigned OA article, the police have asked for information about "everyone that is responding" in the form of comments at oaoa.com about the news articles. The Odessa American declined to provide that information. Here's this from that article:

Odessa American Editor Laura Dennis said the OA will not release confidential records that indicate e-mail addresses or other information from posters who have registered on the paper's website to the OPD or anyone else.

"We tell website users that their information is confidential and that it will not be sold or given out. We will stand by that," Dennis said.

Attorney John Bussian is a First Amendment specialist and is a Freedom Communications attorney. Freedom is the parent company of the Odessa American. Bussian said Tuesday that Freedom recently successfully resisted a subpoena in Fort Walton Beach, Fla., by law enforcement asking the paper to reveal confidential data given to the paper by users who had registered on the paper's website.

"We have just resisted efforts by law enforcement officers to make the press reveal confidential data provided to us by those posting comments on our websites," Bussian said. "This is not obstructing justice it is simply asking law enforcement to make the press witnesses of last resort and to demonstrate the things required by the First Amendment before forcing us to reveal these posters," Bussian said.

Bussian said information given to the OA on the website is confidential.

Press shield laws were proposed in 2005 and 2007 in the Texas legislature, but neither bill passed into law. Media folks are saying maybe this year.

[Previously at this website: see Odessa Cops Stung and USA vs. Yolanda Jean Madden.  And for a reproduction of the affidavit for the search warrant and the letter see A 2nd look at that fake "grow house" sting on Odessa cops.]

A 2nd look at that fake "grow house" sting on Odessa cops

Last week we discussed the stunt that Barry Cooper and Kop Busters perpetrated on the Police Department of Odessa, Texas, when they lured the police into raiding a fake "grow house." Odessa Cops Stung was our first look at this. And it seems that Mr. Cooper and crew had been hired to bring attention to another case, specifically, USA vs. Yolanda Jean Madden, and the tactic they used to accomplish this appeared to be to try to publicly embarrass the Odessa Police Department.

Apparently we were supposed to hear about the search of the fake "grow house" and think that the OPD was ready to pounce on innocent people without probably cause. Texas law provides that a sworn affidavit setting forth probable cause is required before a magistrate may issue a search warrant, and that affidavit is public information. So now that we have a copy, a different story emerges.  See the affidavit and warrant in this PDF document.  (My scanner isn't long enough to scan legal size paper, so if it looks sliced and diced, sorry about that.)

The practical jokers didn't just set up in the fake "grow house" and wait for something to happen. According to the documents, an unsigned letter was left at the front desk of the Odessa Police Department on 12/3/2008 by a Pastor Terry Pierce. That letter was transcribed in the affidavit as "Attachment 'A,'" and here's what it said:

Attachment "A"

I'm leaving Odessa because my boyfriend is out of control. The cops only have a few days to catch him. I can't talk to the police because I have traffic warrants. He is from Ohio and is growing 80 marijuana plants in the house he rented in Odessa at 232 Lottman. There is clones to. He never leaves the house because he babysit the plants. They are almost ready so he is going to start harvest Friday morning. It takes him all day and he will leave to Ohio late this Friday night. He vent the hot air with a fan that blows out of the bedroom window ac by the front door. If you walk up to the door to pretend you are Jehovah witness you can feel the air coming from the vent and you can smell the plants. I tore a small piece of tinfoil he use to cover the bedroom windows. He doesn't know I tore it so drive by at nite and you can see the brite lights. He moved the half grown plants from Arizona to Odessa in a U Haul because his land lady got suspicious. He drives a Nissan Versa that is silver that he parks in the driveway and takes off the plates so nobody knows he is from Ohio. He knows about tap raps and will not answer the door if the police are there. He has $19,000 hidden in the fireplace but I took $1000 out to get me back home. He always keeps his money in the fireplace. He does not know I'm telling and thinks I don't know about him cheating on me. He has been growing pot for a long time and never get caught and he is getting sloppy. He will be easy to catch if the cops get him before he goes to Ohio.

Detectives went to the house, and everything appeared on the outside exactly as the anonymous letter writer described. So the search warrant was obtained, and police did indeed search the house. From the Youtube video taken by Mr. Cooper's cameras it's apparent that the police realized in short order that it was a hoax. That anonymous letter appeared to be a bald faced lie.

Some of the news reports suggested that police were considering whether charges should be brought against anyone in this case. And it would seem that the person who submitted that letter has made a false report. But here's another trick. Apparently they didn't deliver the letter to the police themselves but tricked some innocent pastor to do it for them. Sneaky, sneaky.

In any event, this certainly has been a curious case. Whether Mr. Cooper is trying to help Ms. Madden or is trying to make a point about the war on drugs, the public perception could be that he is simply trying to be mischievous. Sometimes a practical joke is so devious that the sympathy goes to the victim, and in this case the public might just very well side with the police.

Added 12/21/08:  Photo of house located at 232 Lotteman added above.

Updated 12/22/08 -- A comment left by Mr. Cooper alerts us about Doug Carman's article in the Odessa American titled Hoax Mess which reports that a pastor named Terry Pierce denied delivering the anonymous letter to the OPD. If that's true, and there is only one pastor named Terry Pierce, then one error in the affidavit is the description of how the police came to be in possession of the letter. However, based on Mr. Carman's article, no one seems to be disputing whether that anonymous letter actually exists.

The article contains this: "When asked about Pierce's role in the affidavit, Odessa Police Cpl. Sherrie Carruth said the department considered the aftermath of the raid an open investigation and refused to comment." So hopefully that investigation will uncover how the police actually obtained the letter if not who actually wrote it.

USA vs. Yolanda Jean Madden

The other day we learned about Barry Cooper and his sting operation in which he set up a fake marijuana grow house to tempt the Odessa Police Department to raid it. They took him up on it. The raw video from his cameras is now available.

When I first wrote about this in Odessa Cops Stung I omitted that part of Eddie Garcia's CBS7 report addressing Mr. Raymond Madden and his daughter, Ms. Yolanda Jean Madden. Yolanda Madden was arrested in 2005 in Odessa for possession of illegal drugs, intent to distribute, and doing all of that too close to a school. She was tried in the Federal Court in Midland, Texas, found guilty, and given a prison sentence.

Her dad, Mr. Madden, contends that the drugs which Ms. Madden was charged with possession of were actually planted in her car by the police, and Mr. Barry Cooper's efforts to embarrass the Odessa Police were apparently for the purpose of helping Mr. Madden in his efforts to help his daughter.

To try to get to the bottom of this one would start by looking at the court record at the Federal Court in Midland. It's cause number 7:05-CR-134, and it was tried before a Judge without a jury on October 11, 2005, and the Judge found her guilty.  It appears from this record that an informant, in cooperation with the Odessa Police Department, arranged to purchase some methamphetamine from her, they arranged to meet, and she was arrested at the scene.

She appealed the court's ruling to the U.S. Court of Appeals for the 5th Circuit and lost. The 5th Circuit's March 22, 2007, ruling in case No. 06-50428 can be read online in PDF. In reaching the conclusion it did, the Court of Appeals reviewed some of the facts of the case, and since facts are all we are concerned with here, some of the highlights from that opinion, edited for brevity, will follow:

UNITED STATES OF AMERICA Plaintiff - Appellee
v.
YOLANDA JEAN MADDEN Defendant - Appellant

• After a bench trial, the district court found Yolanda Madden guilty of possession with intent to distribute methamphetamine within 1000 feet of a university, a junior high school, and a playground. She contends she did not validly waive her right to a jury trial, despite that she executed a waiver ... By executing the waiver, and absent a claim of prejudice, she is presumed validly to have waived her right to a jury trial.

• Madden contends that the warrantless search of her vehicle was not supported by probable cause because the informant who led police to her was not shown to be reliable. The informant identified Madden by name and by photograph, and he provided credible and detailed information about her, including her history of selling methamphetamine to him, where she lived, her father’s place of business,and what vehicles she drove. As police observed, the informant initiated two telephone conversations with Madden to arrange to buy methamphetamine from her. Police corroborated information about her vehicle, and the informant accurately predicted her arrival at the set location in the vehicle she was driving. Under the totality of the circumstances, the information given by the informant provided probable cause to stop and search Madden’s vehicle.

• Madden contends that her admission to police that there was methamphetamine in her vehicle should not have been admitted, because it was either the fruit of an illegal stop or obtained in violation of [her] Miranda [rights]. Because the information provided by the informant established probable cause or at least reasonable suspicion for the stop, Madden’s admission was not the fruit of an illegal stop.

• Madden’s statement was not obtained in violation of Miranda. Police had only just stopped her at the meeting site, and a detective had explained that police were conducting a drug investigation and had reason to believe she possessed methamphetamine, when she blurted out that there was methamphetamine in a bag inside her vehicle. She was not in custody. ...

• In addition, Madden was not being interrogated. Nothing in the record suggests that the officers expected her to blurt out that she was carrying illegal drugs before being arrested, Mirandized, or questioned further. ...

• Madden contends that the district court should have departed downward to cancel out her two-level sentence increase based on the crime’s proximity to two schools and a playground. She argues that police entrapped her into appearing at that location. ...

• This was not a reverse sting, because the government was not acting as the seller. Moreover, the evidence shows no sentence entrapment, but rather that the site for the meeting was chosen by Madden and the informant, without police input, because it was convenient for Madden.

• The judgment is AFFIRMED.

A petition for a writ of certiorari was submitted to the U.S. Supreme Court, but it was denied.

Finally, in August of 2008 Ms. Madden filed a writ of habeas corpus alleging that, among other things, the government used false evidence and she had ineffective assistance of counsel. That writ is still pending.

Odessa Cops stung!

Victims of the drug war fight back with publicity.

They set up a fake "grow room" with Christmas trees, and an anonymous tip brought the cops who kicked in the door only to find that they themselves were targets of a sting.

Apparently Barry Cooper set this up in an effort to expose police abuse in the drug war, and his message board gives a little more detail about this particular bust.

Here's Eddie Garcia's CBS7 report, and a here's a local open thread about it.

Hopefully there will be some video of the bust available without having to purchase Mr. Cooper's DVD. And let's keep an eye out for OPD news releases on the matter.

Added: The objective appears to have been to demonstrate how easy it is to get the police to raid a house, SWAT style, even though they lacked any real evidence. Apparently, it isn't that hard. If we have all the facts then all it took in this instance was a suspicious house and an anonymous tip.

The CBS7 news report has been posted on Youtube.

Updated: Here's the raw video from Mr. Cooper's cameras. And for my latest on the case about which they were trying to bring attention, see USA vs. Yolanda Jean Madden

Abandon an offspring -- no age limit in Nebraska

A couple of years ago we learned that our fair city of Midland was participating in the Baby Moses^* project which allows someone to abandon a baby at the hospital or a fire station. See Drop off a baby, for good - the Baby Moses Program in which I opined, "Too bad they have to be under 60 days old. A more appropriate cut off age might be 18 years old."

Well, Nebraska went and did it! WRAL reported it. Here's the Nebraska law: LB 157 (pdf):

No person shall be prosecuted for any crime based solely upon the act of leaving a child in the custody of an employee on duty at a hospital licensed by the State of Nebraska. The hospital shall promptly contact appropriate authorities to take custody of the child.

There's no age limit! So Nebraska parents now have a way to get rid of an annoying teenager. Very progressive, Nebraska.

*(In Texas see Penal Code § 22.041(h) and Family Code § 262.302 which provides a defense if a baby who appears to be 60 days old or younger is abandoned at a designated emergency infant care provider.)

Browsing the Texas Open Records rulings

The Texas Attorney General's Open Records rulings are on line, and browsing through them provides an educational and entertaining way to spend a rainy Sunday afternoon.

If a governmental body in Texas receives an Open Records request and wishes to withhold the information then it has ten business days within which to request a ruling from the Attorney General. And given the number of rulings, one is tempted to assume that every Open Records request submitted to any governmental body in Texas gets appealed to the AG for a ruling.

Go to the Texas Atty General's website, plug a key word into the search engine, and browse through the rulings for a study of what is being requested and how the Assistant AG's handled it. The reader doesn't get to see the results of the request but merely the ruling on whether or not the government body needs to supply it and the legal basis of the ruling. What follows is a sampling, but not a treatise. Each letter applies only to that particular request, but hopefully, there's some consistency. Here goes.

August 27, 1997 -- The Midland County District Attorney received a request from ABC News 20/20 for: "any and all copies of documents pertaining to the rape and/or sexual assault of civilians by law enforcement officers in the state of Texas." Link-PDF. The AG ruled that some of the info could be withheld and some couldn't. The addendum to this letter provides a list of they type of information from a criminal report that is available to the public. (Was there a 20/20 show utilizing this information? I must have missed it.)

January 29, 2008 -- The Abilene Assistant City Attorney received a request from the Abilene Reporter-News for the release of information regarding a sexual-assault offense report, and the Texas Assistant Attorney General letter ruling states that information tending to identify the sexual assault victim is private and must be withheld. Link-PDF.

March 27, 2008 -- Abilene again. This request was for the release of information regarding a specific undescribed incident apparently involving a police officer. The Assistant Attorney General noted that Abilene is a civil service city under Chapter 143 of the Local Government Code and distinguished personnel files, which are not subject to disclosure, from civil service files which are. See section 143.089(a) for a description of information required to be put in the civil service file, for example, investigatory material in a case resulting in disciplinary action. However, in this case the AAG ruled that the certain information could be withheld because of a pending criminal investigation but basic information must be released. Link- PDF. (See the next letter about a request for police officer personnel files in a non-civil service city.)

May 12, 2008 -- This letter regards a request for personnel files of two Midland police officers. The AAG relied on Government Code Section 552.022 and stated that the city may not withhold performance evaluations, completed reports, and completed investigations excepting certain personal information considered confidential by law, e.g., medical, illness, handicap, financial and criminal history. But another exception applied to certain information related to litigation pended in the federal court case of Ofelia Cano et. al v. the City of Midland, et al. Link. (That lawsuit alleges damages resulting from the violation of several Constitutional Amendments during a traffic stop and subsequent incarceration.)

September 6, 2007 -- This is in regard to a request from Lulu Corona of the Permian Basin League of United Latin American Citizens to the Midland Police Department for information related to allegations of police brutality or harassment between January 1, 1987 and May 31, 2007. The letter from the AAG specifies that certain information may be withheld, specifically, motor vehicle record information, medical records, information obtained from a polygraph examination, and information in regard to common law privacy. The remaining information must be released. Link. (This was a big news item at the time. Maybe the information would cast a bad light on the police department. On the other hand, maybe the public would look at it and decide the police department is doing a good job. But why has this information never been made public?  See next letter.)

September 11, 2007 -- A Midland Reporter-Telegram reporter directed a request to the City of Midland for the following: (1) complaints filed against officers of the Midland Police Department for any kind of harassment; (2) suspects killed in officer-involved shootings; (3) complaints filed against officers of the department for police brutality; and (4) the number of people who have died while in custody of officers from the department. The AAG replied noting that the City's request to the AG was not made within the time required by Gov't Code § 552.301, and therefore there is a presumption that everything is public information unless there is a compelling reason to withhold it. And in this instance other law made confidential information regarding drivers' licenses and vehicle registration. Everything else was to be released. Link. (Did the MR-T publish this? I don't remember it. Hmmm, I wonder what kind of ruling the AAG would provide in response to an open record request to the city for a copy of the information submitted to the MR-T pursuant to that open record request. Or for that matter, perhaps an open records request could be submitted directly to the Midland Reporter-Telegram. After all, it is the "Official Newspaper" of the city of Midland -- it's codified! See chapter 9 in the City Code.)

July 16, 2001 -- Former tv reporter Melissa Hendrix made a request to the Ector County Sheriff for " for records relating to an internal investigation conducted by the West Texas Narcotics Enforcement Task Force on three of its officers." The AAG noted that a ruling was not sought within the statutory time period, and therefore the information would be subject to release without a compelling reason. In this case the compelling reason was that other law enforcement agencies were investigating, and the release of the information might interfere with the prosecution of a crime. Link.

January 22, 2008 -- The Lubbock Police Department received a request for a red light camera video, and the AAG ruled that it must be released as the Transportation Code did not make it confidential. Link.

June 5, 2007 -- Eddie Garcia of CBS 7 made a request to the Midland Police Department for information regarding "an internal affairs investigation involving a department officer and the inappropriate use of a dashboard video camera." (Could this be that infamous video of the overweight man pushing a car while trying to hold up his pants?) The internal investigation file had already been released, and the issue concerned the video. The AAG noted that there was a legitimate public interest in the video because it was created by a department officer using department resources, and it was the subject of a department investigation and therefore it couldn't be withheld because of common law privacy even though it could be embarrassing to the person in the video.  However, the video showed the license plate number of the vehicle which is protected by other statutes. The MPD lacked the capability to block out the plate number on the video, and therefore the video could not be released. Link. (Pssst. You can see the video on Youtube here and here!)

Had enough? This could go on forever, so I'll turn it over to you to do your own searches. Have fun!

Boy, I sure can pick 'em

I was glancing at the Late Show Writers' blog and ran across an entry consisting of a top ten list they had pulled off the internet.  They can't actually write one, you see, because they are on strike.  So they simply searched the net and posted any list that said "top ten."  (Note to Dave Letterman: try looking for talent among non union writers.)

Anyway, to the point.  The list they had pulled up was the Top Ten Insurance Fraud Cases - Fiscal Year 2007, and lo and behold, there was the name of a doc whose services I had used in another city.  You can see his name at the link.  I'm not going to mention it here.  This was a doc who poked a tube where the sun don't shine, so perhaps you can imagine which muscle tightened when I saw this.  Here's what the Texas Department of Insurance said about him (name removed):

______, a former doctor from Houston, developed several schemes to defraud health insurers, including billing for services not rendered, unbundling pharmaceutical drugs and selling them at a substantial profit and up-coding. _____ was convicted in federal court on 44 counts of mail fraud and sentenced to serve 135 months in prison for his part in defrauding health insurers of more than $10 million dollars. Prior to his Texas court appearance, _____ was arrested in Florida for setting fire to a $3.2 million dollar house he purchased for his wife. Then while awaiting trial in a Texas jail, ____ attempted to execute a murder-for-hire plot against the federal prosecutor, FBI agent and wife number six. It was unfortunate for _____ who lost another $250,000 after the government forfeited the money he wired to pay for the murder-for-hire plot.  Authorities also seized in excess of $10 million of ____’s assets; those funds will be used to offset the court ordered restitution of $11 million dollars.

Just bend over and relax.  You won't feel a thing.

The war against the separation of church and state

Don McLeroy is the chairman of the Texas State Board of Education.  And a Texas Freedom Network press release, claims Mr. McLeroy is a strong proponent of the "intelligent design" theory, i.e., creationism.

Here's what purports to be a transcript of a talk Don McLeroy gave at a church in 2005 while he was a TSBOE board member but prior to his 2007 appointment to the chairmanship.  Read the whole thing, but Mr. McLeroy's talk appears to be a part of a continuing program designed to teach members of his church congregation how to argue in favor of intelligent design against adherents of Darwinism.

Here's an excerpt in which he complained about the 2003 biology book selection process:

Back in November 2003, we finished about four or five months of adoption process for the high school biology textbooks in Texas. I was there for all the public testimony.

But I want to tell you all the arguments made by all the intelligent design group, all the creationist intelligent design people, I can guarantee the other side heard exactly nothing. They did not hear one single fact, they were not swayed by one argument. It was just amazing. I mean all the, my fellow board members who were really not even the scientists in the group, they were not impressed by any of this. They said, “Oh well, it’s just two opinions. And there were only the four really conservative, orthodox Christians on the board were the only ones who were willing to stand up to the textbooks and say that they don’t present the weaknesses of evolution. Amazing. ...

Mr. McLeroy was a TSBOE board member at the time that talk was supposed to have been given.  And  we should be grateful that it was recorded and posted so that Texas parents can get a glimpse of what he would have their children learn in Texas schools.  Texas voters should certainly take note.

But now it appears there's a gag on public expressions about creationism and Darwinism by board members.  Former board member Chris Comer, aka Chris Castillo-Comer, has made the news with her very public resignation.  "The Texas Education Agency put Chris Comer on 30 days paid administrative leave in late October, resulting in what she described as a forced resignation."  Via USA Today.  And the Austin American Statesman says this:

Agency officials declined to comment, saying it was a personnel issue.

Comer was put on 30 days paid administrative leave shortly after she forwarded an e-mail in late October announcing a presentation being given by Barbara Forrest, author of "Inside Creationism's Trojan Horse," a book that says creationist politics are behind the movement to get intelligent design theory taught in public schools. Forrest was also a key witness in the Kitzmiller v. Dover case concerning the introduction of intelligent design in a Pennsylvania school district. Comer sent the e-mail to several individuals and a few online communities, saying, "FYI."

Agency officials cited the e-mail in a memo recommending her termination. They said forwarding the e-mail not only violated a directive for her not to communicate in writing or otherwise with anyone outside the agency regarding an upcoming science curriculum review, "it directly conflicts with her responsibilities as the Director of Science."

The memo adds, "Ms. Comer's e-mail implies endorsement of the speaker and implies that TEA endorses the speaker's position on a subject on which the agency must remain neutral."

And here we thought creationism and intelligent design were no longer going to be taught in school.  See Kitzmiller v. Dover -- the intelligent design case, infra.  Surely the state of Texas will follow the law.  And as for the gag on board members, wouldn't it be better for the public if we knew what beliefs they brought with them to the table?

But one has to wonder about the tactics.  Ms. Comer has made a splash with her noisy resignation.  However, if Governor Perry is inclined to appoint creationists to education board chairmanships and vacant board positions, then she has just handed a board seat to creationists.

In any event, there are enough Sunday schools around to take care of any religious education parents think their children need.  Let's let the Texas kids learn real science in school.

Finally, here's a sobering chart, which if accurate, says the U.S. ranks 33rd on a ranking of 34 countries on public acceptance of evolution.  Hey, we beat Turkey!

Upcoming, Moreno vs. Ector County Independent School District.

Kitzmiller v. Dover -- the intelligent design case

It started with a couple of school board members in Dover, PA, who had strong beliefs that a supreme being created human and all other life on earth and who were disturbed at the references to Charles Darwin's theory of evolution in the biology text books.

The result was the U.S. District Court case of Kitzmiller v. Dover [PDF].  And last week NOVA broadcast an excellent show titled Judgment Day, Intelligent Design on Trial on PBS which was a Cliff's Notes version of the issue of whether "intelligent design" was a scientific theory or simply a religious argument, specifically,  "creationism" in disguise.

Creationism had already been tossed out of public schools by the Supreme Court in the 1987 case of Edwards v. Aguillard which held that a Louisiana law prohibiting the teaching of evolution unless accompanied by creationism violated the first amendment ("Congress shall make no law respecting an establishment of religion").  So the issue in Kitzmiller was merely whether or not the school district was attempting to inject creationism into the school curriculum by the requirement that teachers read a prepared statement to the students.

That statement involved Of Pandas and People which was a book proposed as an alternative to evolution, copies of which were given anonymously to the Dover school.  The school board rejected Pandas as a text book, but they reached a compromise by which science teachers were required to read a statement to the ninth grade biology students.   Read the whole statement in the judge's order in Kitzmiller v. Dover [PDF].  The statement basically instructed students that Darwin's theory was not fact, gaps existed in the Darwin's theory, the Intelligent Design theory was an explanation for the origins of life that differed from Darwin's, and Of Pandas and People would be available in the library for interested students.

Darwin's theory is often diagrammed as a tree of life starting with simple life forms at the base evolving into multiple branches representing different life forms.  Of Pandas and People presented the idea that life was created suddenly and at various times for each species.  So instead of a tree, there are straight, vertical, parallel lines.  Furthermore, living beings are so irreducibly complex that they couldn't possibly have evolved from some lower life form according to the ID theory.  Well, it turns out the book had been around awhile, and evidence presented at the Kitzmiller trial showed that previous versions had used the words "creationism" and "creationists," but after Edwards those words were changed to some variation of "intelligent design."  In fact, there was one incident where the word "creationists" was changed to "cdesign proponentsists."

An example of the irreducible complexity given at trial was the bacterial flagellum which has a very unique motor that spins its little tail giving it propulsion.   It's  such a complex little engine and had so many parts that it couldn't operate if any of the parts were not present.  Therefore, it couldn't have evolved from something else, the ID theory goes.

But wait a minute.  There's another tiny little critter called the yersinia pestis which has a thing similar to that engine but lacks some of the parts.  And in that instance the tail serves as an injection device.  So the effort to disprove Darwin's theory failed.

An expert witness provided an amusing example of how some things aren't as irreducibly complex as they might seem.  The ID proponents sometimes use the mousetrap as an example of a device that couldn't function if any of the parts were missing and analogize this to a living creature that couldn't exist without its parts and thus couldn't have evolved.  So the witness came to court one day with a mousetrap as a tie clasp.  Enough parts were missing that it couldn't possibly serve as a mousetrap.  But as the witness said, it worked perfectly, though inelegantly, as a tie clasp.  Score one more for the Darwinists.

But religious dogma is actually quite flexible, albeit slow to adapt.  Originally religions explained gaps in our knowledge of how things worked.  They explained the unexplainable.  For example, the sun, the tide, the stars, etc., were controlled by the gods.   And as scientific explanations became accepted, religion narrowed its focus to those things that still couldn't be explained.  And at this point in time science cannot explain how life originally began.

How did life begin?  Here's what I would tell the Dover ninth graders: We simply aren't smart enough and don't have enough information to know.  And here's a story to go with it.  Each morning I take dog food out of a big bag and place it in a container for the dog to eat.  The dog can see me do that, and in his own mind he may have some explanation for it.  But he doesn't have the brain power or the information to figure out the manufacturing process, the distribution channel, or the retail transaction.  Humans understand this, but the dog may think I'm some sort of god.  So in this regard we are like dogs.  We simply aren't smart enough, and more to the point, we don't yet know enough to explain how life began.  For the creationists it's obvious, God did it.  For the rest of us it's still an unknown.

Darwin's theory has been tested over and over again and provides a logical explanation for natural phenomena.  And creationism?  Well, to believe that you just have to have faith.  And the judge in Kitzmiller wisely decided to let the kiddies learn science first.

Updated 11/20/07:  Joe Hathaway emailed a link to Experts find jawbone of pre-human great ape in Kenya.  Excerpt:

NAIROBI – Researchers unveiled a 10-million-year-old jaw bone on Tuesday they believe belonged to a new species of great ape that could be the last common ancestor of gorillas, chimpanzees and humans. ...

The species – somewhere between the size of a female gorilla and a female orangutan – may prove to be the 'missing link', the key step that split the evolutionary chains of humans and other primates, Kenyan scientists said.

'Based on this particular discovery, we can comfortably say we are approaching the point at which we can pin down the so-called missing link,' Frederick Manthi, senior research scientist at the National Museums of Kenya, told reporters.

Once life is discovered on Mars or another planet then we will really be in for an educational treat.

Updated 11/21/07:  In a comment, below, Les reminds us of Moreno vs. ECISD which is the ACLU sponsored case in which several Ector County taxpayers are suing the Ector County Independent School District and the district trustees over the decision by the school district trustees to place a Bible course in the school curriculum.  See the original complaint here (PDF).  Something to keep in mind is that, according to the NOVA program,  the Kitzmiller v. Dover plaintiffs' lawyers were awarded a million dollars in fees for which the Dover school district would be liable.

Thought Crimes 2.0 - Sight Crimes

A Texas Attorney General's news release, picked up by local media, tells us that a paramedic from Seminole has been arrested for something that was on his computer: child pornography images.

We are supposed to assume that by possessing such images the possessor has actually caused harm to some child, the theory being that the possessors created the demand which created the supply.  But still, they seem to be shooting somewhat short of the mark.  Perhaps finding the real villains in the picture is just too difficult, so they are taking the easiest route to try to look good to the public.

But here's a quote from the A.G.'s news release that deserves our attention:

Attorney General Abbott has earned a national reputation for aggressively arresting and prosecuting child predators. Since 2003, the Cyber Crimes Unit and Fugitive Unit have arrested more than 600 sex predators. Prosecutors also have obtained more than 70 child pornography convictions.

They arrested 600 and obtained 70 convictions.  Maybe the other 530 are awaiting trial, but taking the numbers as they were given to us, that's less than a 12% conviction rate.  So is the person identified with name and photo in the aforementioned news release going to be one of the 70 or one of the 530?  Real damage to that individual has already been done, so if he's in the 530 where does he go to get his reputation, life savings, job and family back?  Furthermore, if some dork looking at pictures on his computer is a "predator," what is the person called who actually grabs up a kid and commits some heinous act?   "A really, really, really bad predator?"

Imus getting sued by Rutgers basketball player

It had to happen.  ABC News tells us that Kia Vaughn, one of the Rutger's basketball players Don Imus allegedly slandered, is suing the I-man.  (Via Daily gut.)

It was the bigotry of low expectations that people committed when they assumed that those women were so permanently damaged by an insult that their personal and professional lives could never recover.

But Ms. Vaughn is missing the target.  The women on the basketball team were reportedly ignorant of the whole affair until later.   The original broadcast reached a very small audience -- it was the tree falling in the woods with no one around to see it fall.  Another example of that was the caricature of Don Imus shown as a graphic one afternoon on MSNBC which no one but the MSNBC staff and I saw.  See Mischievous MSNBC staffers not finished with Imus.

It was Mr. Imus' detractors who made his remarks famous.  Republication is the same as the original publication, and  MSNBC, which replayed the segment over and over, would seem to be the softer target.  They've already shown a tendency to cave on racially sensitive issues, and if Ms. Vaughn were to so much as look mean in their direction she could probably get her own tv show.

But if this thing ever goes to trial it will be interesting to hear experts tell us just exactly what those phrases, "nappy headed" and "ho," mean this day and age.  Most of us would be hard pressed to come up with contemporary and accurate definitions.  And here's the tough part, how exactly was Ms. Vaughn damaged by all of this?  Her lawyer is telling us that she was accused of being unchaste so that they can allege libel per se and avoid having to prove actual damages, thus transporting us into a bygone era.  Call a woman "unchaste" and the court will go Victorian on your ass.

Here's the original sin on youtube in which it sounds as if Imus was almost trying to compliment the team by telling viewers how tough they were.  Poor old confused Don Imus.  He came of age before the women's movement, and he's probably been beaten over the head so many times with the issue of women being equal  to men that he was punch drunk with belief.  He forgot how delicate women can be.

The Menchaca business continues

Midland, Texas, City Council meeting 7/16/07:

Mayor Canon:  Uh, before we get into this, uh, I tell you what Wes, why don't we go ahead and make a motion.
Councilman Perry:  I'd like to make a motion that we uh rescind that contract.
Mayor Canon:  Do I hear a second?
Female voice:  Second.
Mayor Canon:  Okay, we have a motion and a second that we rescind the contract, or the uh, actually it's not a contract yet, it's an offer...

Watch the MyWestTexas video of the roughly 18 minute meeting here    .

A contract represents a meeting of the minds.  There's an offer,  there's an acceptance, and consideration changes hands.  Under basic contract law an offer can be withdrawn at anytime prior to acceptance.  And that appears to be what happened.

Former Midland City Manager Mr. Menchaca had been offered what many people believed was an overly generous amount of money to leave the job.  And on July 16, 2007, the City Council met, voted, and rescinded the offer.

News roundup:  City Council votes to withdraw $481,000 settlement offer for city manager; and City manager refutes mayor's claim, wants the city to honor earlier agreement.

The Severance Agreement that was offered to him (download it from Stephanie Sparkman) stated that his resignation would be effective at July 31, 2007, at 5:00 pm., and the agreement would become effective on August 1, 2007, at 5:00 pm.   Why the one day gap, I don't know.  However, the Severance Agreement did contain a provision whereby he stipulated that he had been given at least 21 days to consider it.

Although yesterday's meeting was one day shy of  21 full days, he's had plenty of time to consider it.  And in fact he seems to have made subsequent written demands through his attorney, however, those further demands may have been withdrawn just prior to yesterday's meeting.  Hopefully, Ms. Sparkman will make those letters available at her website for historical purposes.

Mr. Menchaca is probably not trying to make excuses for why he didn't accept the offer sooner, but according to the MRT:

Menchaca noted a federal statute designed to protect the rights of employees requires a 21-day waiting period before he could legally sign the city's offer.

Mr. Menchaca is probably reading a little too much into that federal statute.  The Severance Agreement contained a release of any claims he might have had against the city, including a waiver of any claim for age discrimination.  And 29 USC Sec. 626 (f)(1)(F) -- see the Age Discrimination in Employment Act -- requires a minimum of 21 days for someone to consider signing a waiver of any claims he/she might have against an employer for an age discrimination claim.  But, there is nothing in the statute that says or even implies that an employer must keep an offer open for any period of time.  Age discrimination probably wasn't an issue anyway but merely a small piece of the boiler plate language any modern day severance agreement would likey have.

So it boils down to this.  Mr.  Menchaca had ample time within which to accept the offer, but the offer was withdrawn before he got around to accepting it.  So there is no contract.  And there's definitely no meeting of the minds.

El negocio del Menchaca continuo.

Computer repair shops browsing customers' files

[Note:  Don't miss the major update and clarification at the end of this post]

Last week there was a brief news item about a local arrest on kiddie porn charges:

Computer shop tip leads to child porn arrest -- Associated Press

ODESSA, Texas - A tip from a computer repair shop led to the Thursday arrest of an Odessa man on a child pornography charge, police said.

/snip/

Odessa police Sgt. Paul Shepherd said repair workers found images of child pornography on a laptop computer that Hughes brought in for repair.

Source: Star-Telegram.

These type arrests seem to happen ever so often.  And the lesson here is that repair shop employees are browsing through the personal files of their customers' computers.

Now I am definitely not condoning the possession of kiddie porn.  But, I am also not condoning the browsing of someone's computer files.  That's against the law too.  Chapter 33 of the Texas Penal Code contains this:

§ 33.02.  BREACH OF COMPUTER SECURITY.  (a)  A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

So if a computer owner has any files that he/she wants to keep secure from prying eyes -- tax, financial, personal, etc. -- then it might be a good idea to remove them from the hard drive before taking the computer to the shop, or at the very least, make sure the shop employees know that they do not have the owner's consent to access any of the owner's files.

Major update and clarification! (Added 10/22/2006)
Your attention is directed to the comment from Darrin G. explaining why authorities were called:

As owner of this computer repair facility, I feel it necessary to comment on the circumstances...

Upon powering up the laptop for troubleshooting, the desktop wallpaper was a very young child, completely nude in a suggestive pose. We would not for any reason browse confidential or personal files. I felt a moral obligation to call an investigator.

Hope this answers your questions/concerns.

Thanks for that clarification, Darrin G.  That certainly sheds light on the issue.

Texas Constitutional Amendments - 2005

The Texas Constitution is a monster.  An effort was made to rewrite it during the 70s, but the voters turned it down.  So what we have now is that unwieldy thing with hundreds of amendments.

And this November we are faced with even more proposed amendments.  You can read the Proposed Constitutional Amendments at the Secretary of State's website.  But more importantly, you can also see an Analysis - PDF with pros and cons.

Updated 10/20/05; 5:00 pm:  For more about the effort in the 70's to rewrite the Texas Constitution, see the online Handbook of Texas.  Here's the conclusion:

More than $3 million in appropriations was spent on the convention. After seven months the constitutional convention closed, on July 30, 1974, having failed by three votes (118 for, 62 against, and 1 not voting) to produce a document to submit to the voters. In 1975 the legislature did approve a new constitution in the form of eight amendments approved by the normal amendment process. The Bill of Rights remained unchanged, but the eight amendments went before the voters on November 4, 1975, in a special election. They were all defeated. One legacy of the 1974 constitutional convention was a large body of written material on the Texas constitution.

Ice Picks, no; Corkscrews, yes - Airplane Carry-ons

There probably isn't a comedian alive who hasn't made a joke about nail clippers and TSA inspections.  Of course, airline security against terrorists really shouldn't be a joke.  And the comedians lost some ammo, because it's okay to take nail clippers on a plane.  Yup.  Check out the Transportation Security Administration website.  The list of Permitted and Prohibited Items List in PDF format as of 9-6-2005 seems to show more common sense than the comedians would allow.

Knives and box cutters get the no-no, though.

And there are the civil penalties.  The Civil Sanction Guidelines - PDF says this:

TSA recognizes that most passengers who carry prohibited items do so without any ill intent.  TSA does not impose fines on the vast number of passengers who inadvertently carry prohibited items.  Dealing with any prohibited item, however, adds time to the screening process both for the traveler who brought the item and for other travelers as well.

In other words, they may or may not assess a penalty.  But if they do, it can range from $250 to $10,000.  Oh yeah, the passenger with the pocket knife has to be nice, too.  Among the aggravating factors is the all important attitude of the violator.

New Texas Gun Laws - 2005

The Governor's office makes it so easy.  Here's the online press release listing new gun laws that went into effect 9/1/05.

Jun. 17, 2005 Gov. Perry Signs Bills to Protect Gun Owners' Rights

AUSTIN – Gov. Rick Perry today signed legislation aimed at clarifying existing firearm laws, enhancing protections for law-abiding gun owners and reducing barriers for gun ownership.

"The right to keep and bear arms is a fundamental right of every law-abiding citizen of our country," Perry said. "This legislation will clarify existing firearm laws, enhance protections for law abiding gun owners and reduce barriers for gun ownership."

The bills Gov. Perry has signed include:

* House Bill 225 (Driver) which extends the renewal period for a concealed handgun license from four to five years without an increase in renewal fee.  Note: It only applies to licenses obtained new or renewed after 9/1/05.

* House Bill 322 (Hupp) which reduces all fees for a concealed handgun license for military members and veterans by 50 percent and lowers the age from 21 to 18 for members of the military or veterans to obtain a concealed handgun license.

* House Bill 685 (Rose) which exempts military members and veterans from taking the range portion of the concealed handgun licensing process if they had been weapons certified in the military within the past five years prior to application for the license.

* House Bill 1483 (Frost) which will expand methods by which applicants for a concealed handgun license may pay the fees to include personal check, cash, and credit card. Currently only cashiers checks and money orders are accepted.

* House Bill 823 (Keel) which clarifies the current definition of "traveling" as it relates to someone carrying a firearm. Current law is ambiguous and is interpreted differently by courts and law enforcement.   Note:  See Grits for Breakfast and  TSRA for a possible controversy.

* House Bill 1038 (Isett) which reduces the fee for renewal of a canceled handgun permit for senior citizen by 50 percent. The current renewal fee for a senior citizen is $70 for a four-year renewal period and this bill will reduce that fee to $35 for those 60 years of age or older.

All bills become effective Sept. 1, 2005.

(Italicized notes mine.)

Midland Police Officer charged, resigns

One of the things I really appreciate about the Midland Police Department is their willingness to police their own.  We see movies about the code of silence among police officers in which cops try to put themselves above the law.  But, in reality those conspiracy theories don't necessarily apply, at least not out here.

Ryan Myers, in the 8/30/05 issue of the Midland Reporter-Telegram article titled Midland police officer arrested, informed readers that Jessie Ortiz, a nine year veteran of the Midland Police Department, had been arrested for allegedly assaulting a female companion and firing his service pistol into the wall of a residential bedroom early Sunday morning.

Then in the 8/31/05 issue of the Midland Reporter-Telegram, with the information packed headline: MPD officer resigns amid criminal charge, Mr. Myers quotes Police Chief John Urby as follows:

"This concludes the department's administrative investigation into the issue," Police Chief John Urby said of the man's resignation.

"Because he is no longer an employee of the police department, it's no longer our concern and there is not a need for the department to investigate the case," Urby said.

The Sheriff's Department has the responsibility of investigating the crime, digging the bullet out of the wall, and turning over evidence to the District Attorney's office.  But what exactly was the police department's "administrative investigation," and how did it result in Mr. Ortiz's resignation?

Too much public information about that might jeopardize any prosecution of the alleged offense, so my query to the Public Information Officer was a simple "yes" or "no" question.  "Did Mr. Ortiz participate in an interview with an officer of the MPD Internal Affairs Department between August 27, 2005, and the time he resigned?"

"Yes," was the answer.  Why is that significant?  The Midland Police Department has an Internal Affairs department which investigates allegations against police officers.  And Internal Affairs has a potent weapon.

The U.S. Supreme Court ruling in GARRITY v. NEW JERSEY, 385 U.S. 493 (1967) held that information obtained from police officers with a threat of firing was coerced and therefore violated the officers' constitutional right against self incrimination if that information was used against them in a criminal trial.

That resulted in the Garrity Warning which, once given, provides an accused officer with a choice of either to talk or get fired.  The constitutional rule against self incrimination is intact as any information obtained in such an interview can't be used in criminal court.

Here' a short description of the Garrity Warning found at the Americans for Effective Law Enforcement site:

The employee is informed that although he (or she) has a right to remain silent and not incriminate himself, his silence can be deemed insubordination and will result in administrative discipline; further, any statement he makes under compulsion of the threat of such discipline cannot be used against him in a later criminal proceeding.

Tough but fair.  So what can we surmise from Mr. Ortiz's resignation following the Internal Affairs interview? He had the right to remain silent, and jurors are told not to let someone's silence influence their decision of innocence or guilt.  But we live in the real world not in a court room.  So we are all free to draw own conclusions.

Is the Green Mile really green? Death Row Trivia-

Texas seems to be a lightening rod for criticism about executions.  And the jokes?  "In Texas we have a death row express lane," says comedian Ron White.

Be that as it may, there's a treasure trove of death row trivia at the Texas Department of Criminal Justice - Death Row Information page.  Click on Death Row Facts at that site for some interesting tidbits.  Sample:

Where is the Texas Death Row? Men on death row were housed in the Huntsville Unit from 1928 until 1965 when they were moved into the Ellis Unit at Huntsville.  In 1999, death row was moved from the Ellis unit to the Polunsky Unit where each offender has his own 60 square foot room with a view (window).  The women's death row is located at the Mountain View Unit in Gatesville, Texas.

What crimes are punishable by death?  "The following crimes are Capital Murder in Texas:  murder of a public safety officer or firefighter; murder during the commission of kidnaping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation; murder for remuneration; murder during prison escape; murder of a correctional employee; murder by a state prison inmate who is serving a life sentence for any of five offenses (murder, capital murder, aggravated kidnaping, aggravated sexual assault, or aggravated robbery); multiple murders; murder of an individual under six years of age."

Who was the most notorious Texas death row inmate?  Perhaps it was Raymond Hamilton who was a member of the "Bonnie and Clyde" gang.  He escaped once and was recaptured.  Convicted of murder, he was executed in 1935.

So was the green mile really green?  You won't find this one at the TDCJ site.   "The Green Mile" was the name of a novel by Stephen King - you can read it online here - and the green mile was supposed to have been a long green linoleum hallway in the death row cell block.  It sprang from Stephen King's incredible imagination.  From the book's introduction:

I felt as if I were creating a world almost from scratch, as I knew almost nothing about life on death row in the border South during the Depression. Research can remedy that, of course, but I thought that research might kill the fragile sense of wonder I had found in my story—some part of me knew from the first that what I wanted was not reality but myth. So I pressed on, stacking words and hoping for a kindling, an epiphany, any sort of garden-variety miracle.

Death row.  Not a nice place to visit.  And you wouldn't want to live there either.

A Journalists' Shield Law in Texas - What About Bloggers?

Rodney Ellis of Houston has sponsored a bill in the Texas Senate that will create a privilege for "journalists" in the event they are called upon to testify.  Senate Bill no. 604 has gotten out of the Senate Jurisprudence Committee with some changes, and it basically says that a journalist doesn't have to testify about any information he/she got while acting as a journalist.

But there are a couple of exceptions.  First, a journalist will have to testify if the person who wants that testimony can prove that the testimony is relevant, material and essential to his/her claim or defense.  In other words, a journalist must testify if the person who wants that testimony can prove that it's necessary to make the case.  The original version said that the party wanting the testimony also had to prove that the information could not be obtained through alternate sources, but that line was eliminated by the Jurisprudence Committee over Rodney Ellis' objection.

And there's another very important common sense exception.  If the journalist is an eyewitness or if he/she participates in the crime or tortious conduct then the privileged goes out the window.

The new version doesn't sound all that bad for either side, however the Texas District and County Attorneys Association, as of April 16, still opposed it.

But there's another group out there that doesn't get attention.  A question for the Texas blogosphere is whether bloggers are covered.  Should bloggers be covered?  There are those who say "no."  In an article by Josh Gerstein in the NY Sun, there's this:

An attorney for the Texas Broadcasters' Association, Paul Watler, said he doesn't see bloggers posing much of an obstacle to press shield laws. "You can look at the function journalists fulfill and distinguish it from what a blogger does," he said.

Mr. Watler pointed out that most bloggers comment on facts reported by others. "I think there's a distinction in how they go about gathering information," he said.  [Emphasis added.]

Mr. Watler seems to be saying that bloggers don't need to be covered, and it is hard to imagine a case in which a blogger would be called upon to testify about comments the blogger made about facts reported by others.  But "most" is not synonymous with "all."  There are blog that actually do collect and report original material, and you are reading one of those blogs right now.

It's going to be up to judicial discretion whether a blogger would qualify for the privilege under the proposed law, because any blogger who wants to claim the privilege will have to be able to convince a judge that he/she is a "journalist" working on behalf of a "news medium" as those terms are defined by the pending statute:

"Journalist" means a person, or an employee, independent contractor, or agent of that person, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination by any news medium.

"News medium" means a person who in the ordinary course of business publishes, broadcasts, or otherwise disseminates news by print, television, radio, or other electronic means accessible to the public.

It would be hard for most bloggers to meet the definition of "news medium" because, for whatever reason we might have for doing it, it probably isn't a "business."  Main stream media is carving out a privilege for themselves.  And they want to be the exclusive beneficiary of that privilege.  Jonah Goldberg, addressing the jailing of the reporters in the case of the outed CIA employee, Valerie Plame, summed it up nicely:

What's particularly ironic is that the big-media lawyers fear the courts will allow a blanket shield for journalists because there's no way to exclude one-man-band web journalists — bloggers — from the new right. And what's the point of giving the nobility a new privilege if any peasant can take advantage of it, too?

By lobbying for legislation which would make it tough for a blogger to claim the privilege then main stream media are acting very elitist.

The Oldest Profession

Last week 18 people were arrested for sex crimes in a prostitution sting in Odessa, Texas.  Another four were charged with "pedestrian in the roadway."  Source:  OA Online.

Prostitution, by itself, is a victimless crime, so we really have to question why the world's oldest profession would be illegal in the first place.  Sherry F. Colb at FindLaws Legal Commentary offers up a plausible explanation (via CrimLaw):

The simple explanation for why prostitution is a crime is that it is a morals offense -- a sin. Though neither party to the transaction is necessarily harmed, the law here prohibits sexual activity that falls outside of the prescribed relations.

But doesn't this explanation prove too much? Wouldn't an opposition to "sinful" sexual relations extend to homosexual contacts, nonprocreative forms of heterosexual sex, and fornication as well? Yes, it would.

Then we get to the four who were charged with "pedestrian in the roadway."  Sounds like a case of "wanted to arrest them but had no evidence of a real crime."

Well, my main problem with prostitution is with the vernacular.  Those who solicit it are called "johns."  First, outhouses, and now this.  Sigh.

Word Play

What's a blogger?  San Antonio attorney Bruce Goldston offers this definition:

Blogger:  A person who wants to see his name up in bytes.

Heh heh, pretty good play on words.  [You call that a lawyer joke?  - ed ]  It's a lawyer's joke not a lawyer joke.   [Where are the sharks, the snakes? - ed ]  It's not a LAWYER JOKE!  Oh, what the heck, just go here if you want lawyer jokes.

Jail House Webcam

The Anderson County Tennessee Detention Facility, i.e., jail, has a webcam in the booking room.  Things look a bit dull there this afternoon, but it provides an amazing glimpse into a place most of us wouldn't want to visit.

Via  A Welsh View.

Four big email providers are suing spammers

My browser conveniently sorts my email and trashes email it thinks is spam. I accidentally marked a friend's email as spam once, but it was easily corrected. Hopefully, that was the only mistake. But, spam is still a nuisance. So, it was encouraging to read that Microsoft, America Online, Earthlink and Yahoo have filed some John Doe lawsuits under the theory that they are just a "couple of subpoenas" away from a major spam source.

Microsoft, America Online, EarthLink and Yahoo expect to "follow the money" to discover the real identities of the people who are pushing millions of unwanted sales spiels through their e-mail servers. Since spam is intended to sell products, company representatives said, it's possible to follow the money trail straight to the spammers.

"Today, EarthLink will handle 50 million e-mails directed at its users, and 50 percent of that will be spam," Seagraves said. "We cannot allow criminals to destroy the most critical communications medium of this century." Source: Wired.

More power to you! I sure hope it works!

Via A Welsh View.