Henry Wade not the only corrupt District Attorney in Texas

A Church going Boy Scout leader, former DA and staunch Republican sitting judge finally faces the music for a 25-year-old injustice.

"At issue in the court of inquiry is whether Mr. Anderson committed criminal misconduct in 1987 when he turned over only a few pages of evidence to Judge William Lott, who had asked the prosecutor to submit exculpatory evidence.

Whether or not it was Sheriff Boutwell’s errant investigation that prompted Mr. Anderson to discount the evidence, Mr. Morton’s lawyers say the prosecutor had a legal responsibility to disclose that information. 

'That does not excuse failing to obey a court order,' said Barry Scheck, a co-founder of the Innocence Project."

One more innocent is free, and maybe this time the careless perpetrator of the injustice will pay some kind of price for his "hang 'em high" style of injustice.

[See also the case of Cameron Todd Willingham, In which our good Texas Governor Rick Perry illegally and improperly intervened to ensure that Willingham was not as lucky as Michael Morton.]

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The anti-constitutionalists

Voter suppression can either be direct or indirect. Direct suppression is action by one individual or a group that directly prevents another individual or group from voting or having their votes counted. Indirect suppression is more prevalent in this 15^th amendment age.

Gerrymandering has always been the favorite tactic of the ruling party to ensure reelection and expansion of influence. The practice continues today, with both major political parties guilty. Stuffing the ballot box is another technique, but one that is no longer easy to accomplish.

Traditionally most voter suppression in this country has occurred in southern states… the “old south.” Not much has changed so far as that is concerned, although the area did jump political parties in the mid-60’s right after LBJ signed the voting rights act. Today those states are solid Republican, but for more than 100 years prior they were consistently Democratic.

Then and now those states of the old Confederacy devised creative techniques to keep minorities (blacks in the old days… add Hispanics today) and poor whites away from the ballot box. In the latter third of the 19th century (prior to 15A) violence and outright fraud were the tools of choice. Crude, but it worked. Until the Feds stepped in, old south Democrats used violence as the primary means of direct voter suppression, but federal law enforcement was at odds with the Supreme Court.

In 1877 a white militia group in Colfax, Louisiana attacked a group of blacks attempting to defend Republican officeholders. The militia group was attempting to take control of the courthouse by force, and killed over 100 of the black defenders.

The Feds indicted three of the militia members under the Enforcement Act of 1870. In U.S. v. Cruikshank, SCOTUS dismissed the indictments by faulting the prosecutors for failure to identify a Constitutionally guaranteed right that had been violated. With this decision the Waite court ushered in the era of Jim Crow.

Another major tactic used by the Democrats in those days was to win elections by fraud… by tossing out non-Democratic votes or counting them as if Democrat… this was common in the Southern states prior to the age of legal disenfranchisement. Again the federal government took action and again SCOTUS defeated the efforts.

From 1880 to 1901 Congress brought 26 cases of direct ballot box fraud, again using the Enforcement Act of 1870. One such case was U.S. v. Reese, in which the Feds brought charges against Kentucky election inspectors for refusing to accept and count ballots for a black Republican candidate. SCOTUS dismissed the indictments and the case was the death knell for the Enforcement Act… gutting any provision for punishment of election officials that arbitrarily denied citizens the right to vote.

Reese gave license to the Democrats to openly discriminate without fear of federal prosecution, but it also brought a ton of unfavorable publicity. To avoid the spotlight the southern states started moving toward more subtle forms of disenfranchisement… indirect vote suppression.

Georgia started the ball rolling in 1877 by being the first state to enact a poll tax. This was challenged, but SCOTUS hadn’t matured enough yet and such laws were consistently upheld right up to the middle of the 20^th century. Over the next 25 or so years each of the former confederate states (including Texas) followed suit enacting a variety of poll tax schemes. In some states these taxes cut black voter turnout by as much as half.

40 years later, in Breedlove v. Suttles, a white man challenged Georgia's poll tax by alleging it to be a violation of the 14th (because women not registered to vote were exempt but blacks were not) and the 19th Amendment. SCOTUS struck again, rejecting the arguments by claiming that poll taxes were unrelated to attempts at voter suppression, and that the taxes were legitimate attempts to generate revenue. This was hogwash on its face as none of the states had attempted to collected past due taxes before.

Right up until the 1964 Civil Rights Act and the 1965 Voting Rights Act SCOTUS remained eaten up with discrimination. Finally in Harman v. Forssenius the Warren court quashed Virginia’s poll tax and started an era of fairness. Then the next year, in Harper v. Virginia, SCOTUS ended the concept by declaring all poll taxes unconstitutional under the 14^th amendment’s equal protection clause. It also ushered in an era of states rights arguments and ground roots efforts to impeach Earl Warren.

When Johnson signed the Civil Rights Act in 1964 it is reported that he said that by signing that bill the Democrats had lost the south for a generation. LBJ had no idea how prophetic that statement was, nor how badly he had underestimated the bigotry of the region. Whites fled the Democratic party in droves… never to return, and it has been three generations since President Johnson inked his signature. If anything the attempts at vote suppression are worse now than in 1964... only they are perpetrated by the Republicans instead of the Democrats. 

Race and nationality based voter disenfranchisement is endemic. Where once we had poll taxes and literacy tests denying Republican voters, and now we have the same people doing the same thing for the same reason, just for the opposite party. The newest indirect means of voter suppression is the photo identification requirement, and the sole purpose is to deny prospective Democratic voters access to the ballot box.

So why do we need a photo ID to exercise a Constitutionally guaranteed right? Proponents claim widespread voter fraud, but even the most vitriolic point to only a few score of alleged incidents, most of which turn out to be false. Voter fraud is already a crime and in each of these alleged incidents the violator could have been prosecuted, yet to date there have been only a very few cases where a photo identification would have prevented the crime.

The Bush Justice Department spent years trying to prove that fraud was a problem and found a rate of about 0.00002 percent. In 2006 right here in Texas Attorney General Greg Abbott issued one of his frequent, shrill press releases with the titillating title, “Let's StampOut Voter Fraud in Texas.” In this press release he was unable to name a single case of fraud that would have been stopped by voter ID, but his language made it sound as if hoards of illegals were violating ballot boxes across the state... going so far as to cite the infamous 1948 case of "Ballot Box 13."

Republican disenfranchisement proponents claim that almost everyone has some form of photo identification, which is mostly true. The Brennan Center for Justice says that 89 percent of Americans could produce an acceptable photo ID, leaving only about 11 percent, or about 23 million eligible voters, without the identification required to cast a ballot. Only 23 million?

To cover this rather dramatic problem, the Republicans offer to provide free or low cost identification cards. All that is required is for the citizen to make a trip down to the DMV and stand in line for perhaps a few hours. The ID card will be provided free of charge for those capable of withstanding that gauntlet. But in order to qualify for this card the prospective voter must produce a birth certificate. If this requirement were in place in earlier years my grandmother would have effectively been denied the right to vote.

My grandmother was American Indian (1/2 Comanche and ¼ Kiowa), arguably making her more a citizen of this land than those who would deny her the right to vote. She was not born in a hospital so there was no official record of birth. When she was born in 1881 her family did not “register” their children. She also never in her life drove a car, and thus never had any form of identification that would have qualified her under these new laws.

She could have applied for and obtained a birth certificate, I suppose, but there goes the “free” ID. Here in Texas the Vital Statistics Office charges $22 plus postage for a birth certificate, and she would have had to produce documentation that does not exist. Seems difficult to justify all of this with a 14^th Amendment guarantee of a right to vote, or the 24th Amendment's ban on charging anyone to vote.

It may be different in other states, but the largest population of Texans without photo identification live many miles away from any drivers license office. If these people don’t already have a drivers license it is unlikely they have a car, so how are they going to get to the DMV to apply for the free photo ID card? The DMV office is open regular business hours, so if the ID’less individual has a job they will have to take time off, and if they don’t drive someone else will have to take time off as well. This “free” ID is getting mighty expensive.

The problem is exacerbated for senior citizens or people who work multiple jobs jobs, yet according to the Brennan Center, the elderly, the disabled and the poor are the populations most likely to be affected by these photo ID laws. These are also the people more inclined to vote for a Democrat. Does the intent become a little more clear?

Proponents also say that we must present photo ID to buy alcohol, drive a car or board a plane. Perhaps, but there are no constitutional guarantees for these things while five out of 27 amendments to our Constitution have language guaranteeing the right to vote. This argument is the classic red herring.

Voter ID offers no positive effect. These are laws in search of a crime. If they pass in each of the states in which they are proposed, Millions of Americans could be denied a right that the framers of our Constitution considered basic. Citizens who have voted for decades could now be denied a right that is enshrined in our Constitution.

The advertisements for right wing politicians argue for this disenfranchisement. They contain language like “Restore America!” and “Protect the Constitution,” yet they would promote laws to deny Americans the right to vote for the candidate of their choice.

Tell me what is patriotic about that.

UPDATE: Efforts by Florida Governor Rick Scott and his band of merry men to suppress the non-Republican vote have been denied by the federal courts. Florida bigots Republicans used the same, tired voter fraud song and dance, and the judge saw right thru it. Florida was quite active in the dominionistic efforts to deny American citizens their right to vote. Scott ordered a purge of voter registration rolls (of people who might not vote for him), the Florida legislature passed a voter ID bill and some really onerous laws restricting voter registration drives. These have all been struck down.

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Eye of the beholder

According to Conservapedia, Judicial activism is when

“…courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary”

Black’s Dictionary of Law offers a somewhat simpler definition, describing judicial activism as a…

"…philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions"

The actual term is relatively new in the American Political lexicon, having first appeared in a January, 1947 Forbes Magazine piece penned by Arthur Schlesinger, Jr.  Not unsurprisingly, Schlesinger was describing decisions by the Court of Chief Justice Harlan Fiske Stone, and specifically those by Associate Justices Hugo Black, William Orville Douglas, Frank Murphy, and Wiley Blount Rutledge… all appointed to the Court by Franklin Delano Roosevelt. Chief Justice Stone was himself rather moderate but sided with the liberal majority quite often.

The odd thing about the term is just how vagrant the definition has become over the ensuing years. Judicial appointees have always been chosen to reflect the politics of the current White House occupant, and the tilt of any decision would naturally lean with the majority. Depending upon that majority, the Court’s decisions over the three quarters of a century since Schlesinger coined that term have reflected left leaning philosophy alternately with right producing decisions to almost equivalent degrees.

Yet Conservapedia continues their very interesting definition from the above to say…

“…judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate”

Since when does public opinion rise above the level of law? Is it not the role of the Court to make decisions based upon constitutional values rather than bow to majority rule and in spite of majority opinion? Our Constitution was written with the intent of protecting the rights of the minority from the will of the majority.

One of the decisions the right loves to defame as “activist” came not long after Schlesinger penned his Forbes piece. In Brown v. Board of Education the left-leaning Earl Warren Court overturned Plessy v. Ferguson, which for 60 years had lent a judicial stamp of approval to racial segregation. This "activist" ruling started our country on a long road toward racial equality.

Some 20 years later the Burger Court applied 14^th amendment privacy protections to current state laws that criminalize abortions. Both the 1949 Brown decision and Roe v. Wade in 1973 are decried by conservatives and cited as evidence of an overreaching Court. The prohibitions and limitations voided by each of these cases find root not in fiscal conservatism, but in a conservative Christian mentality. Look around today and see who it is shouting "activism" the loudest.

Slowly, starting in the 60's, the liberal mood began to ebb. Prompted by the incessant fear mongering of the newly empowered "Christian Conservatives," the electorate began to swing to the right. In 1971 Richard Nixon appointed the very fiscally conservative William Rehnquist to replace the liberal Hugo Black, and then 1986 Ronald Reagan nominated Rehnquist to replace moderate Warren Burger as Chief Justice. To fill the remaining vacancy, Reagan next tapped neoconservative Antonin Scalia.

Liberals could see what was happening and a year later, fed up with what they perceived as the appointment of too far right leaning activist judges, Democrats in the Senate staged an almost unprecedented revolt over the appointment of Robert Bork. Following a long and bloody battle Bork withdrew his name and a more moderate Anthony Kennedy was confirmed in his stead, but the religious right has never forgiven this action.

Conservatism has ceased to be about political considerations and instead has taken on the "social conservative" (read Christian) mantle. Where the court had previously been stacked to favor reasonable, moderate interpretations of the law with an emphasis on protecting the rights of the individual, we soon saw an abrupt turn to this rigid, authoritarian "new" right and an implementation of decisions favoring "family values."

George H.W. Bush appointed the inscrutable Clarence Thomas to replace the moderately progressive Thurgood Marshall, and although Democrats in the Senate worked hard to “Bork” him, Thomas was confirmed in 1991. 

Over his eight years in the White House Bill Clinton was able to hold the line with appointments of progressives Ruth Bader Ginsburg and Stephen Breyer to replace the equally liberal Byron White and Harry Blackmun. Yet in 2000 it was this somewhat moderate Court that gave us Bush V. Gore. Rehnquist, Scalia and Thomas, reluctantly joined by moderates Kennedy and O’Connor effectively negated a popular vote and elected a President.

The real turn in the Court came in 2005 when George W. Bush nominated John Roberts first to replace the retiring associate Justice Sandra Day O’Conner, and then as Chief Justice replacing the retiring William Rehnquist. O'Connor was a somewhat left leaning moderate, and Roberts' political views made even Rehnquist look middle-of-the-road.

Bush immediately followed these actions with the nomination of Samuel Alito, Jr., arguably the most reactionary Justice ever to hold the position. The Court was now stacked with four hard right justices, four others to the left, and Anthony Kennedy as the swing vote.

In the 2010 Citizens United v. Federal Election Commission decision Kennedy joined conservatives Roberts, Alito, Scalia and Thomas to grant “personhood” to corporations. Both this decision and Bush v. Gore raised a hue and cry from the left, yet it remains common for the right to accuse the Court of left-leaning judicial activism.

This obviously is an unfair characterization. The term could more accurately be defined as any decision made by any judge that does not agree with the particular view of one of the parties in the case. It swings both ways.

It is politicians who speak in terms of majority. Constitutionalists couch arguments in terms of reason and fairness. Judicial activism is in the eye of the beholder.

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Its your own damn fault

So says the Pennsylvania Liquor Control Board.

"The ads send the message that women are not only at fault for getting themselves raped—a societal bias reflected in and re-enforced by too many court decisions—it’s your fault if your friend gets raped, too."

Not just her fault, but mine as well. At least they eventually listened to reason and pulled the ad.

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H/T

Stephen Bainbridge on Nancy Grace

Professor Bainbridge and I don't always find common ground, but on this one we are in full agreement.

Musing on Nancy Grace

I don't like Nancy Grace. In fact, let's be honest, I find her utterly loathsome. In the name of ratings, she rushes to prejudge every case (and always on the side of the prosecution), she blatantly takes sides, she's an abusive interviewer, she's intellectually dishonest, and she's a coward.

Wish I had said that...

Nancy Grace and CNN should be treated to the same dose of public outrage as FOX  and Glenn Beck received. Worthless assholes deserve nothing less.

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Someone arrested at Mardi Gras

...and it isn't who you think.

In Bethel v. City of Mobile, an Alabama federal district court found that police officers had probable cause to arrest a Mardi Gras demonstrator for disorderly conduct. Plaintiff Orlando Bethel, along with his wife and three children, attended the Mobile (AL) Mardi Gras parade in order to evangelize their religious beliefs. They carried signs with messages such as: "God hates you wicked baby killing whores repent." A woman attending the parade complained to police officers that Bethel had shouted at her 13-year old daughter (who was sitting on her boyfriend's lap), calling her a whore and a prostitute. Police took Bethel and his family into custody and seized their signs. The court concluded that the language used by Bethel arguably were fighting words justifying the arrest. It rejected his argument that his arrest violated his 1st Amendment and equal protection rights, and that seizure of his signs violated the 4th Amendment.

This one is likely to make it to SCOTUS.

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H/T

Light shining through the clouds

For those of us who love reason, truth, moderation and rationality… the first Tuesday in November produced much disappointment. There were precious few bright spots, but a few stars peaked through the gathering clouds and managed to survive the wrath of those pulling the straight Republican lever.

Republican losses in well-publicized races such as Angle/Reid and O’Donnell/ Coons took a bit of wind from Tea Party sails. Not that I really expect we’ve seen the last of the losers in those contests, and I’m certainly not saying Harry Reid was all that much better of a choice, but at least voters in Nevada and New Hampshire recognized insanity when they saw it and voted for the lesser of evils.

Down ballot races in my backyard produced degrees of sanity in the otherwise batshit crazy red flood that cost Chet Edwards a seat he held for 20 years. Edwards was a damn good Congressman, supported by reasonable Republican moderates, the NRA and several veteran’s groups, but none of that was enough to overcome the tide that has been sweeping Texas since the Shrub first popped his head out of that West Texas prairie dog hole.

Other than in heavily Latino regions, bright spots appeared only in the most populous counties of Dallas, Harris (Houston), Bexar (San Antonio), and Travis (Austin). Incumbent District Attorney Craig Watkins managed to hold on as Dallas County District Attorney by the skin of his teeth. Watkins is the former defense attorney who in 2006 took over the infamous office formerly held by Henry Wade; reputed to be one of the most ruthless in the country. Watkins is also the first African-American in Texas history to win election to the office of District Attorney.

What makes Watkins’ win worthwhile is the special Conviction Integrity Unit he created within the office with the charge to use DNA evidence to identify people who had been falsely convicted by his predecessors. The unit has reviewed 180 cases to date, and freed 19 wrongly convicted men. As a result, Dallas County now leads the country in exonerations.

In the beginning Watson actually had critics, including his Republican opponent, arguing that it wasn't a prosecutors job to free the wrongly convicted. Those negative voices pale in light of the justice that has been accomplished as a result of Watkins’ efforts. While the slim margin of Watkins' victory is concerning, at least there were enough reasonable people left in the county to recognize the good in the man, and to do the right thing.

Probably the most encouraging news of the Tuesday debacle is that voters in my adopted state of Colorado still have good sense. Not only did they soundly reject the so called “Fetal Personhood” measure by an almost 75% margin, they also turned out State District Court Judges Terence Gilmore and Jolene Blair. These are the two prosecutors reprimanded in 2008 by the Colorado Supreme Court for withholding exculpatory evidence in a 1987 murder case… evidence that could have prevented the conviction of an innocent man.

In 1999 a Larimer County jury convicted Timothy Masters of murdering Peggy Hettrick in Fort Collins. In 2008, when presented with the new evidence, a visiting judge overturned the conviction agreeing that DNA testing raised questions about the original case. While Masters was in prison Gilmore and Blair were promoted to judgeships. Masters lost ten years of his life for a crime he didn't commit, but when confronted with evidence of their malfeasance the former prosecutors only expressed “embarrassment.”

The reprimand and finding that they “directly impaired the proper operation of the criminal justice system” did not preclude them from sitting on the bench, but reasonable Colorado voters accomplished that which the legal system could not. Blair and Gilmore were rejected by almost two thirds of voters while six other judges also on the ballot were retained by an average 70 percent margin.

In a political environment where civility has been lost, and in an election cycle where sanity was almost nowhere to be found, a few stars still managed to shine through the clouds. Little bits of light like these give me some small hope for the future. This country will survive.

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Another one bites the dust

U.S. Department of Justice

United States Attorney
James T. Jacks

Northern District of Texas

FEDERAL JURY CONVICTS LOCAL
AMBULANCE COMPANY OWNER

Defendant Fraudulently Billed Government More Than $3.5 Million for Transferring Patients to Scheduled Dialysis Appointments

DALLAS — The owner/operator of Royal Ambulance Service, Inc. and First Choice EMS, Inc., Muhammed Nasiru Usman, was convicted yesterday afternoon by a federal jury on all 14 counts of a superseding indictment charging various offenses, including health care fraud and money laundering, related to a health care fraud scheme he ran, announced U.S. Attorney James T. Jacks of the Northern District of Texas. The trial began on Tuesday, April 27, 2010, before U.S. District Judge Jorge A. Solis. Two other defendants charged in the case, Shaun Outen, 32, of Aubrey, Texas, and David McNac, 35, of Dallas, pleaded guilty to their role in the conspiracy prior to trial.

“This verdict is the culmination of a concerted and joint effort by the HHS Office of Investigations, the FBI and the Texas Medicaid Fraud Control Unit to quickly bring to justice those who prey on our poor and elderly for financial gain,” said Special Agent in Charge Mike Fields of the U.S. Department of Health and Human Services, Office of Inspector General, Office of Investigations, Dallas Regional Office.

Specifically, the jury found Usman, 50, of Arlington, Texas, guilty on one count of conspiracy to commit health care fraud, 12 counts of health care fraud and one count of engaging in monetary transactions in property derived from specified unlawful activity. The conspiracy count carries a maximum statutory sentence of five years in prison and a $250,000 fine. Each of the health care fraud counts carries a maximum statutory sentence of 10 years in prison and a $250,000 fine. Usman is scheduled to be sentenced by Judge Solis on July 28, 2010. McNac pleaded guilty on April 22, 2010, and is scheduled to be sentenced on July 21, 2010. Outen pleaded guilty on March 24, 2010; his sentencing is set for June 16, 2010.

When in business, Royal had offices in Dallas and DeSoto, Texas. First Choice EMS, Inc. was previously located in Carrollton, Texas. McNac worked as the director and/or manager of Royal and First Choice from April 2004 to July 2007. Outen served as the director of operations of Royal from August 2004 to October 2005 and then from May to November 2006, Outen served as an upper-level supervisor for Royal and First Choice.

Royal and First Choice primarily transferred patients on a non-emergency basis to and from dialysis treatments three times per week. The government presented evidence that Usman, Outen and McNac conspired to defraud Medicare and Medicaid by submitting fraudulent claims related to the transportation of dialysis patients. As part of the conspiracy, the defendants told Royal and First Choice employees to omit facts when documenting their transports of Royal and First Choice patients, such as whether the patients walked to the ambulance, in order to qualify the transports for reimbursement. Additionally, many of the companies’ records revealed that patients simply rode to their appointments in a captain’s chair in the back of the ambulance rather than lying on a stretcher. The government presented further evidence that Usman, Outen and McNac were responsible for submitting more than $3.5 million in fraudulent claims to Medicare and Medicaid through Royal Ambulance and First Choice EMS, resulting in payments of more than $1.2 million. 

The case is being investigated by the U.S. Department of Health and Human Services - Office of Inspector General, the FBI, Texas Attorney General Greg Abbott’s Office - Medicaid Fraud Control Unit, the U.S. Office of Personnel Management and IRS - Criminal Investigation.

Assistant U.S. Attorney Katherine Miller and Special Assistant U.S. Attorney Michael McCarthy are prosecuting the case.

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