Newscast about Texas Legislature

The news report in the video shows the Texas Legislature in action (Click on the title for this post to get the You-Tube video). Hardly anybody is in the room when the vote is called, and legislators make desperate efforts to push the vote button in the empty seats. I was doubtful about whether legislators actually read what they were voting on, but the video may cause me to change my opinion. Either 1) they are not at the called session because they are too busy reading or 2) not only do they fail to read legislation, they don't actually cast many votes at all. According to the new report, the rules of the house prohibit this action, but one might guess that the members are getting past their own rules by one legislator giving another "permission" to cast the vote. I believe that the "permission" excuse is probably more lax than a written proxy, or even express direction to vote. I suspect that the people voting are assuming that the missing legislator will follow party lines. And that is not much of a recommendation for our two-party system.

I don't want to continue to harp on the number of laws that were passed during the 90 day session, but my confidence that the votes that I cast to elect legislative representative have any meaning whatsoever is starting to wane.

Texas Execution Halted by Supreme Court

The US Supreme Court stayed the execution of a Texas inmate - Carlton Turner - so that he would not be executed pending resolution of a current case involving the constitutionality of the lethal injection protocol used in Kentucky (but either identical or similar to the one used in Texas). This is worth noting because the Court did not stay the execution of a Texas inmate earlier this week who was in the same position (his execution was carried out on the same day that the Court granted review).

Hmm....Did the earlier inmate not raise the issue by some procedural faux pas -- one that cost him his life? Did the earlier inmate deserve to die - by whatever means were in use, regardless of its constitutionality? Did the Supreme Court believe that Texas would stay the executioner's hand out of respect - knowing that the Court was taking a case involving the allegedly defective protocol? (a miscalculation by the Court that cost someone their life).

I'm going to have to read a bit more before deciding whether there is a rational distinction between the treatment of these inmates, but the Court's action seems to be inconsistent. Not a good way to start the October term, IMO.

I love this kind of "news"

An AP story that is making the rounds deserves mention, and even though it would be better for Friday news, I can't control when these things happen.

A Minnesota man who was a guest at the Embassy Suites Hotel cornered a duck that swam in the hotel's lobby, grabbed the bird and ripped its head from its body while a hotel security guard and others watched.

Allegedly, the man said: "I'm hungry. I'm gonna eat it."

According to the police spokesperson: "He was allegedly drunk."

The general counsel with the Minnesota Federated Humane Societies called the incident "unconscionable," and suggested that: "I think Embassy Suites needs to take another look at this and review how they keep ducks safe, or use fish like most hotels would use."

Further comment on this post will be referred to Embassy Suites. The AP writer said that calls to Embassy Suites were not returned. Nothing I can do about that either. Reports that the man was Michael Vick are totally false.

Supreme Court will hear Voter ID case

I've been accused of being too serious on this blog, so I'll take one case that the Supreme Court has decided to hear, and consider an issue that is a bit different than the one that the Court agreed to hear. In Indiana, where body cavity searches are the rule [My Prior Post on this issue], not the exception, voters are required to present government issued ID cards to vote. I guess this is to prove that you indeed reside in Indiana (something a body cavity search would not necessarily reveal) and that you are of the legal age to vote.

Aside from all the pre-teens that would apparently be permitted to vote in Indiana (because every self-respecting 14-year-old has an ID that says they are 21), age is hardly a decent gauge of whether you should be voting. Although many races are like voting for your favorite Brady Bunch character, making an intelligent and reasoned choice remains the work of a small minority of the populace.

Supreme Court will Hear Lethal Injection Case

Today, the US Supreme Court decided to hear a case out of Kentucky that challenges the method of execution (lethal injection) as being cruel and unusual punishment. The argument of the inmates is that the mix of drugs (a sedative plus a paralytic plus a heart stopper) can result in needless pain and suffering. According to testimony of medical people on this issue, the sedative doesn't always work as predicted, the paralytic keeps the inmate from talking or moving, and the heart stopper is (by all accounts) like running acid through your viens. Prison officials are, of course, unable to get doctors to help them devise or supervise any method of execution, and have either relied on their own research or the advice of veterinarians to come up with this protocol.

Courts of Appeal have resisted addressing this question by either saying that the challenge to the procedure comes too early (before an execution is imminent) or comes too late (where the schedule for the execution does not permit a court sufficient time to consider the merits of the procedure).

Some of the Supreme Court's writings on the death penalty make me think that this will be a very interesting opinion. Will they end up comparing this procedure to the procedures used in the past? or to procedures currently in use around the world? Or maybe it will be a very nebulous standard that simply reveals that the Court feels that the inmates do or don't deserve to die this way at the hands of the government. In any event, this issue will tell us a lot about the people that make the decisions at the highest level of government.

Are Congresspersons really THAT Special?

I read a newspaper article yesterday that said that 13 members of Congress had been subpoenaed to appear and testify at a criminal trial. The Trial was a criminal case involving a defense contractor who allegedly bribed "Duke" Cunningham (then a serving representative). The Congresspersons were asked to testify for the defense.

The general counsel to the House of Representatives apparently planned to seek to quash the subpoenas on the grounds that the members had nothing to say about the case. The subpoenas apparently can be quashed because the members did not receive a clear explanation of why the the testimony is needed. Congress has made its own rule that says that members need not comply with subpoenas unless someone can prove that the testimony is needed. The newspaper reported that each of the subpoenas were directed to persons who had received campaign contributions from the guy on trial.

It is a bit of a problem when Congress gets to make rules that benefit members, but no one else gets that benefit. It is not surprising, though, as there are a host of laws that citizens must comply with, but from which Congress is exempt. What moral justification could there be for lawmakers to make rules and laws that they themselves need not obey?

Texas Supreme Court - Part Dos

The Texas Lawyer published a long article this week about the huge backlog of cases that are pending at the Texas Supreme Court, and the length of time it takes to get a decision on a case. In years past, the Texas Supreme Court worked a lot like the US Supreme Court. They took a certain number of cases for review, and decided virtually all of them before they took a summer vacation. There was some carry-over from term to term, but the number of cases carried past the summer vacation were usually cases accepted late in the year.

The Texas Lawyer article describes cases that have been argued, and not decided for over a year. There are also a number of cases where the Court has received briefing, and have not yet decided to accept the case, but the case still pends for a year or more. It is worth knowing that often the cases are pending with judgments earning interest at 10% per annum. Plaintiffs may be getting interest credit, but they still don't have a conclusion to their lawsuit. Defendants also need a resolution, but are paying through the nose to get there. Just by way of example, suppose you are a defendant who has lost a case, and suffered entry of a judgment for $1,000,000. You are tagged with 10% interest. If you put the $1,000,000 in the bank, you could not keep up with the interest tab you are running. But, you appeal anyway. You spend a year at the Court of Appeals level (where it takes time to get the record together, and to write briefs, get to argument, and get a decision). [In the Houston Courts, you cannot expect to get a submission date until a year after the briefs are filed]. You lose, and want to go the Supreme Court. There's little new briefing that needs to be done, and it ought to be about 6 months to find out if the Court will take your case. If the Court takes 2 years to decide whether to take your case, and follows their regular schedule for decision (minimum 1 year), you will have a decision between 4 & 5 years after the trial. This is $400,000 minimum out of your pocket for interest. You might have earned 5% on the money if you set it aside -- so you are down $200,000 just for the right to appeal. The math isn't perfect, but the principle is. It's not just the Plaintiffs who are suffering while the appeal is pending; the Defendants are not being well-served either.

More fodder for judicial elections that would seem to be important campaign issues. Hard to predict whether the general public will care.

Here's Your Texas Supreme Court

I got a copy of a fascinating Motion filed this week in the Texas Supreme Court. In the Motion, a Plaintiff's lawyer in a mandamus case asks 4 Justices to recuse themselves from hearing the case because they have evidenced a bias for big business and insurance companies, and a prejudice against Plaintiffs who sue for money damages. Backing up the Motion is an independent study of voting patterns that shows that these four judges have never voted to allow a Plaintiff to recover money -- reversing every single award that they have reviewed in an appellate case.

Although the lawyer here is relying solely on voting patterns, he makes a nod in the Motion to the Court's practice of reviewing the factual sufficiency of the evidence to support jury verdicts in favor of Plaintiffs under the guise of discussing the law -- a practice that is undeniably common, and just as undeniably prohibited by the Texas Constitution.

Obviously, the Motion will be denied, and the 4 judges will participate in the case. But, this makes speculating on judicial elections a bit more interesting. Will the public ever learn of this? Will opponents come forward to make this a campaign issue? Will Texas actually vote that this is the kind of Supreme Court that they want? The Dallas Morning News actually published an article about this, on the front page of its business section.

Stay tuned.

I'm a Hypocrite when it comes to Michael Vick

Apparently, there is a large debate on the blogosphere that says that we are all hypocrites for charging Michael Vick with a crime while we are eating burgers. How, these folks argue, can you say that Michael Vick is guilty of cruelty to animals when the cruelty in reducing cows and chickens to table-fare is ignored?

This is one aspect of the law that is becoming more than just annoying. Our society chooses to battle each and every personal decision (right down to what we eat) as though there should be a law that embodies the proper decision. I like my dog, and don't want anyone to torture her. I like fried chicken, and understand that my body needs protein. From my point of view, that's the way things were when our Constitution was written (dogs were domestic, and chickens were game). So, the only honest way to change this is to get State legislators to make a decision that humans shouldn't be eating animals. I've got some degree of confidence that I will outlive that argument. But, what a cruel waste of society's time and resources.

Federal Judges Speak about Jury Trials

Judge Pat Wald, former Chief Judge of the D.C. Circuit says: "The jurisprudence of the federal court is the jurisprudence of summary judgment...Litigation management is our primary job, and even with fewer trials, there is a lot of litigation to be managed."

Judge William Young (D.C. Massachusetts): Once divorced from daily interaction with jurors, our written opinons subtly mock the very idea that democratic institutions might be made to serve the interests of justice. This leads us to prefer knowledge over hope, and the jury system is, if nothing else, our country's finest expression of hope." It is interesting that Judge Young makes the comment that our legal system prefers "knowledge over hope". Others have described the phenomenom that the high courts prefer cases that present small and discrete fact scenarios that decide small and discrete legal principles. A case that presents an interesting law review puzzle is preferred over the case that presents an opportunity to do justice. Dr. Gregory House would be proud.

For my own point of view, I am skeptical of the jury system as our finest expression of hope, but I do think that jury trials have been so marginalized that they are no longer considered an important expression of justice, or democracy. They are, now, aberrant events; a novelty to be reported, but not necessarily respected. Whether a jury trial is an expression of hope or not, the people's decisions - so vital that all 50 states supposedly guarantee the right to trial by jury -- are virtually ignored. That is a shameful way to run a government.

Using the Internet is NOT interstate commerce

A 10th Circuit case has decided that a guy found with child porn images in his possession cannot be convicted simply because he used the internet. The Government did not prove that he used the internet to get the child porn. The Court refused to indulge the very likely presumption that the guy got the porn off his computer. Instead, the Government should have proven the location of the guy's ISP, the ISP servers, or the website servers that he visited.

I generally agree that federal convictions should be based on proof that the defendant did precisely what Congress has forbidden, unaided by presumption or assumptions. This one, though, is a bit of a stretch.

But, it is even more interesting that the 10th Circuit would hold this view -- one that is virtually impossible to imagine ruling the day in the 5th Circuit, the 4th Circuit or the 7th Circuit. It matters where you are charged with a crime. The case is US v. Schaefer, No. 06-3080 (10th Cir. 2007).

Net Neutrality - I'm still neutral

Net Neutrality is a principal being touted to keep phone and cable companies from ruining the Internet experience for everyone. According to proponents of neutrality, the people that provide Internet service shouldn't be allowed to charge advertisers, product sellers, or others a premium for making sure that the paid content is shoveled at consumers at higher band-width or with other priorities. If we don't stop them now, we'll end up with all "net" activity covered by cable and telephone ads, sprinkled in with other content that we really don't want to see. Then we'll have to work harder and smarter to get at the information that the we really want. On the other hand, why let government into Internet regulation at all? The Justice Department was asked about regulation, and it is against it. The Federal Trade Commission is for it. The Federal Communication Commission is supposed to decide.

So, what would you rather have...the phone and cable companies messin' with your Internet....or the FCC?

My Greasy Fingers are just the start of a problem

After following a few links today, I got to this information:

• On May 15th, 2006 three doctors from California (Dr. Robert Harrison, MD, MPH; Dr. Arthur Gelb, MD; Dr. Phillip Harber, MD) released a document reporting the cases of two people who worked in two separate flavoring manufacturing plants, each of which manufactured artificial butter flavoring. In both of these cases, one being a 32 year old man and one being a 43 year old woman, the employees had no prior exposure to any chemicals yet they both were diagnosed with bronchiolitis obliterans, aka Popcorn Lung Disease.
• Bronchiolitis obliterans is a disease of the lungs which has been nicknamed "Popcorn Lung" or "Popcorn Workers' Lung" due to onset of this disease from inhalation of airborne diacetyl, a butter flavoring used in popcorn. Popcorn Lung is a disease in which the bronchioles are plugged with granulation tissue, also inflammation and scarring occurs in the smallest airways of the lungs and can lead to severe and life threatening shortness of breath.
• These are only two of many people who have been diagnosed with Popcorn Lung Disease. In fact, a man in Joplin, Missouri was awarded $20 million in a suit against the factory he worked for. He was the first of 30 people to file against this particular company.
• The first reported case of Popcorn Lung in a consumer was also recently reported. A man who ate 2 bags of microwave popcorn a day for about 10 years noticed that his lung capacity was not as good as it had been in the past and when he went to a doctor about it he was diagnosed with Popcorn Lung.

I eat a small bag of Popcorn almost every day. When I go the movie, I eat too much popcorn. And, although I'm not a "butter-flavor-lover", I'm pretty sure I'm in the risk category as far as eaters go. The thing that ticks me off is that the danger from this chemical comes from heating the chemical. Thus, the popcorn is not dangerous until I put it in the microwave, and start inhaling that delicious scent. What's next? Cancer from coffee smell? Disease from baking cookies? Cinnamon Roll Cindrome?

How Much Law did we Get this year?

Earlier I posted about the number of laws were passed by the Texas Legislature in 2007. As of September 7th, the count is 962 laws in the 90 day session. At the rate of 10 laws passed per day, I cannot believe that my representatives have even read most of the things that they are voting on. The 962 laws are the ones passed not the number offered for consideration.

The job of a legislator includes committee meetings, constituent visits, and floor discussion, among many other activities that they apparently tend to. (most of which deserve a completely different discussion). Given the number of days that are available for work on reading and considering laws that are presented for vote, I will venture the guess that most legislators have cast numerous votes on bills they have never read.

There are other worthwhile comments to be made about the legislative process. But, this is simple. Did you read the bill before you cast a vote? If you didn't read it, understand it, and apply your best judgment to it, then what value does "representation" have? If the citizens don't care whether you read or not, then why send you at all. We can just have insurance companies, medical lobbyists, and the dreaded "trial lawyers" battle out the future of our state..................................

Publishing despite irony.

Not Like I didn't expect it, but ....

The Waco Tribune Herald reported yesterday that the funds that will be provided by a recently passed bond package would be used to purchase the Hillcrest Medical Tower. The Tower would eventually become a "new and improved" HQ for the Waco Police Department. The sales pitch thrown at the voters by both the City and its bond proponents was that the City needed a new HQ, and did not have room for all the various police departments. In addition, the new building (voters were told) would be far more efficient because all of the police-persons could be under one roof, and work together on their various crime-fighting activities.

Yesterday's article, though, made clear that

• the City could not really afford to retrofit the building with the money from the bond package (thus necessitating yet more taxes and fees to fund the project)
• all the departments did not even want to be in the new building, but preferred their current locations
• the City would never even move all the departments into the building.

Oddly enough, the paper made no mention of the fact that the bond proponents and the City unabashedly lied to the public to get them to agree to a tax increase for the purchase of this building. It makes you want to live out in the country where you don't have to pay City taxes.

I'l be careful in Indianapolis if I were you

James Campbell was in the street talking to some of his friends when a cop drove by. The Indianapolis police officer thought he observed something passing "hand to hand", and pursued Campbell. He ordered Campbell to stop, and Campbell kept walking. So, the officer drew his gun, and ordered him to the ground. Campbell was patted down, and nothing turned up.

Here's the good part: Indianapolis has a policy that any officer having control of a prisoner shall conduct a thorough body search. For Campbell, that meant that the cops pulled his pants partway down, and "separated Campbell's buttocks and did a 'visual inspection' to as to 'make sure he had nothing shoved into his anal area'".

Campbell sued, and although the jury found against him, the appellate court held that "no reasonable jury could find that a strip search conducted in public for no identifiable reason conformed with the 4th Amendment."

I'm not so amazed at the appellate court ruling as I am with the fact that cops consider a "thorough search" to mean a body cavity search in the middle of someone's yard. And, I'm a bit amazed that jurors would think it was OK, too.

Maybe you can just have this done at the border of Indiana, and get a three day pass for your trips there.