Making it up as we go along, NASCAR-style

NASCAR has long fought the impression that stock car racing is the equivalent of professional wrestling on wheels. Rules have had a funny way of changing on the fly to suit one driver or another - or one manufacturer or another. No one ever had a win taken away if it turned out later that they had cheated by using illegal parts afterward. Spinning the car out in front of you wasn't punished - it was encouraged.

Now, twice in a week, the boys in Daytona Beach have monkeyed around with their own "playoff" system in order to protect the "integrity" of the racing. First they penalized Martin Truex because his teammate deliberately spun himself out late in the Richmond race last weekend. There was no evidence that Truex had anything to do with the manuever - yet somehow it was determined that deliberately spinning yourself out is a just not acceptable.

After penalizing the members of Michael Waltrip Racing, Truex was out of the playoff and Ryan Newman - who had been leading at the time of the spin - was back in.

But then there was Joey Logano. Apparently his team had a deal in place with another driver to let Logano pass him late in the race. By making the pass Logano picked up enough points to knock fan favorite Jeff Gordon out of the playoff. So, in true NASCAR fashion, the rules were changed in midstream and Gordon was added to the playoff.

NASCAR chief Brian France claims these changes were made to preserve the integrity of the racing. Meanwhile, in order to fill a field of 43 cars every week, teams are allowed to qualify then pull their cars into the pits early in a race in order to avoid damaging their cars. What happened that night in Richmond happens in race after race - it just so happened that this time it was in a race that was made the artificial end of a regular season.

The NASCAR rulebook, it seems, is written in pencil.

Last year I wrote about why Bud Selig would make a good judge as to 4th Amendment issues as he was able to ignore the fact that Ubaldo Jimenez lost a perfect game due to a blown call with two out in the ninth inning. Brian France, however, would be more than comfortable sitting on the bench today as he is more concerned with the outcome than the process.

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Vacuum at the top

Earlier this month, after less than a year in office, Harris County District Attorney Mike Anderson died from cancer. He had been out of the public eye since May when he announced he was suffering from cancer and was taking a leave of absence.

In the meantime, former state district judge Belinda Hill, the First Assistant District Attorney, became acting DA. And, over the last four months there has been a complete vacuum on the Sixth Floor at 1201 Franklin.

Organizational chart for the Harris County District Attorney's Office

The theme of Mr. Anderson's campaign seemed to be "I'm not Pat." He advanced few ideas on how to fix the perceived problems in the DA's office. Apparently just being one of Johnny Holmes' "boys" would be enough to cure the office's ills.

Aside from his decision that we need to lock up more folks for possession of drugs in amounts so small that there isn't enough to conduct confirmatory tests by an outside lab, he set out to kill Pat Lykos' illegal DIVERT program.

But no one wanted to do away with pretrial diversion for DWI cases - since the program reduced the number of cases taken to trial (and the number of not guilty verdicts rendered by Harris County juries) - so he got rid of the element that made the program illegal.

Under Ms. Lykos' scheme a defendant wishing to enter the program had to enter a guilty plea in open court that could then be used against them should things go south down the road. That made the plan deferred adjudication under a different name - something that is barred by state law. So the Anderson administration did away with the plea and gave the program a new name.

But when questions arose regarding who was eligible and who wasn't and what defendants would be required to do as a condition of their "probation," there was no one around to answer them. No one was in charge. With Mr. Anderson out of the picture, no one wanted to step up and take any heat for unpopular decisions.

And so the program, which in reality is nothing but a contract entered into by a defendant and the DA's office, found itself in a tug-of-war with the judges, the prosecutors and defense attorneys. Judges decided who could apply. Judges decided whether or not to allow cases to sit on their dockets for a year while the defendant fulfilled the terms of the contract.

All because no one was willing to take charge. And let's be honest about it, no one believed that Mr. Anderson would be returning to his office. It wasn't a situation in which Ms. Hill was just keeping a seat warm. She was, for all intents and purposes, the unelected chief prosecutor in Harris County.

State law dictates that if an officeholder dies less than two years into his or her four-year term that a special election must be held at the time of the next general election. This means that Gov. Rick Perry will have to appoint someone to be the interim District Attorney until next November when the voters of Harris County will select someone to fill the rest of Mr. Anderson's term.

Rumors have it that Gov. Goodhair has shopped the position to various folks who have been prominent in the Harris County criminal (in)justice system but that no one has expressed any desire in serving as the temp. It looks like Belinda Hill will get the nod by default. But whatever's going to happen needs to happen fast because so long as no one's in charge confusion will continue to reign at  1201 Franklin.

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Mucking it up down in Richmond

I finally reached a point last Saturday night where I couldn't sit and watch the BYU offense run at will against the Longhorn defense I was told was much improved over last year's disaster. Well, numbers don't lie and the defense laid an egg of epic proportions in the Utah desert.

So I flipped over to the stock car race. For those of y'all who don't follow NASCAR, a few years ago they implemented one of the dumbest ideas in all of sports. They decided that instead of crowning a champion based upon his performance over the course of the entire season that they would create a 10-race "playoff" to determine the champion.

The details aren't important but how much sense does it make to put 12 drivers racing for a championship on the same race track with 31 other drivers who are just racing for money? But that's neither here nor there.

On Saturday night as the race wound down Ryan Newman was leading. If he won the race he would be in the playoff and Martin Truex would be out. If he lost, he would be out while Martin Truex would be dancing.

With but a few laps remaining Clint Bowyer spun bringing out a yellow flag. The cars came into pit and, when all was said and done, Ryan Newman was no longer in the lead. When the checkered flag flew, Ryan Newman was out of the playoff and Martin Truex, Clint Bowyer's teammate was in.

The next morning all anyone could talk about was the suspicious finish to the race. Then NASCAR got involved and pulled audio that led them to believe that Michael Waltrip Racing (MWR), the team of both Truex and Bowyer, had manipulated the end of the race to benefit their drivers. As a result, NASCAR fined the team a significant amount of money, took away 50 points from the drivers and suspended their crew chiefs. Adding insult to injury, the penalty knocked Truex out of the playoff and put Newman back in.

So, if we are to believe NASCAR in this, the person who caused the mess suffers no harm while Truex, an innocent bystander, is docked points for something he had no control over. Where is the justice in that?

But what was the problem? NASCAR is full of multi-car teams that share garages and testing data. The teams build cars for each driver using data they have gathered from races and testing sessions. They swap crew chiefs and pit crews sometimes.

MWR did what teams do - they worked to get the best possible outcomes for their drivers. It's a time-honored tradition in auto racing. In Formula 1 drivers are under team orders to do what benefits the team leader. This was no different.

The plot thickens as NASCAR looks into whether Joey Logano's team made a deal with another driver to take a dive.

NASCAR was upset because it appeared MWR made deliberate moves to impugn the integrity of the race. Really? NASCAR is legendary for the invisible "debris on the track" yellow flag when someone gets too big of a lead late in a race. NASCAR encourages drivers to "beat and bang" on the track. Drivers have spun out their competitors late in races in attempts to win -- and everyone then says "that's racing."

Sure, maybe the ending of the race left a bad taste in some mouths - but so what? NASCAR still tries to market itself as a bunch of good ol' boy moonshiners driving around in circles in souped-up sedans. The reality is that NASCAR is a buttoned-down corporatized enterprise that's more concerned with image, television ratings and sponsorship dollars.

Still, as far as I'm concerned, what happened on Saturday night was "just one of them racin' deals."

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Two wrongs don't make a right

The Congress shall have the power ... [t]o declare war, grant letters of marque and reprisal,  and make rules concerning captures on land and water.  

-- US Constitution, Art. I, Sec. 8

*****     *****     ***** 

WAR noun, often attributive

a (1) : a state of usually open and declared armed hostile conflict between states or nations (2) : a period of such armed conflict (3) : state of war

b : the art or science of warfare

c (1) obsolete : weapons and equipment for war (2) archaic :soldiers armed and equipped for war
2
a : a state of hostility, conflict, or antagonism

b : a struggle or competition between opposing forces or for a particular end war against disease;

c : variance, odds 3— war·less  adjective 

-- Merriam Webster dictionarynoun, often attributive \ˈwȯr\

*****   *****   *****

War, huh, yeah
What is it good for
Absolutely nothing
Uh-huh
War, huh, yeah
What is it good for
Absolutely nothing
Say it again, y'all
War, huh, good God
What is it good for
Absolutely nothing
Listen to me. 

-- "War" by Edwin Starr

I don't care what you call it. Limited strikes. Targeted strikes. It doesn't matter. It's still war. Whether you want to say the bombing campaign will only last a few days. So fucking what. You're still declaring war on Syria.

And why?

Because somehow the national security of the United States of America is at stake? Really? I don't care if you made some ad lib about chemical weapons and a red line. That's a "you" problem. Do you really expect us to buy your argument that because you made a comment about a red line that it's now a matter of national security that we drop bombs and fire missiles on Syria?

I still can't fathom how Barack Obama not only won, but was even nominated, for the Nobel Peace Prize. He has taken George W. Bush's lead and run with it. Instead of ending the wars in Afghanistan and Iraq, he extended them. Instead of closing the US torture camp at Guantanamo Bay, he kept it running. Instead of looking for a humanitarian way of ending the slaughter in Syria, hr has chosen to perpetuate it.

No one has ever deserved the Nobel Peace Prize less than President Obama. There are few bigger hypocrites than our President (though John Kerry rates a close second).

Syria has descended into a brutal civil war. That's what happens with dictatorial regimes. No one in Washington cared as a hundred thousand Syrians were killed. No one cared until someone used chemical weapons. What difference does it make how a civilian is killed. You are just as dead if you are shot in the head as if you breathe in poisonous gas. What makes the use of chemical weapons so special?

Back in 2012 I had to sit through a presentation at the Rusty Duncan Advanced Criminal Law Seminar (put on by the Texas Criminal Defense Lawyers Association) in which TCDLA President Gary Trichter introduced a man who piloted a plan whose mission was to drop bombs on Tokyo in World War II. We were supposed to hail this man as a hero since he was able to eject himself from his plane and make it to safety.

But how much honor is there is dropping bombs from high up in the sky on cities in another country? This wasn't the story of a war hero - it was the story of a war criminal. I was appalled at the presentation. We look at the Japanese pilots who dropped bombs on US ships in Pearl Harbor as evil people, yet we celebrate people who set out to drop bombs on civilians.

There is no justification for dropping bombs or firing missiles on Syria. There is no humanitarian purpose served by dropping bombs or firing missiles. The military's function is to destroy - not to build.

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Taking away the voice of the people

Last week Wallace Jefferson, the first black Chief Justice of the Texas Supreme Court, announced that he was stepping down from the Court on October 1, 2013. His stated reason is financial. Judge Jefferson has one child in college and two others in high school and is making a mere $152,000 a year (but a pay raise authorized by the legislature would make that $170,000).

I'm quite certain that he will be stepping down from the bench and into a corner office at either a white shoe or boutique firm in San Antonio without missing a step. I'm interested to see just how quickly he moves into that office.

Once he leaves the bench, the fair-haired one, Gov. Rick Perry, will have yet another opportunity to appoint a conservative jurist to the bench.

Now, for those of y'all who think that partisan elections are a bad way to pick judges, you should love the Texas Supreme Court. It is, for the most part, made up of judges who were appointed by Gov. Perry who periodically run in retention elections to determine whether they get to keep their seat.

Chief Justice Jefferson was appointed to the Court in 2001, he was then appointed Chief Justice in 2004.

Justices Phil Johnson and Don Willett were appointed to the Court in 2005.

Justice Eva Guzman was appointed in 2009. This followed her appointment to the 14th Court of Appeals in 2001 which followed her appointment to a state district court.

Justice Debra Lehrmann was appointed to the Court in 2010.

Justice Jeffrey Boyd was appointed to the Court in 2012. Interestingly enough, prior to that appointment he served as Gov. Perry's chief of staff. Prior to that he served as the governor's general counsel.

Of the nine judges on the Texas Supreme Court, only Nathan Hecht, Paul Green and John Devine were ever elected to their seats. Thus, the overwhelming majority of the court (which presides over civil matters) is answerable to no one. As they are all Republicans, so long as the GOP controls statewide races in Texas, their seats will remain safe. Aside from lawyers who practice before the court, the only other folks interested in the Supreme Court are business interests who have an interest in keeping their buddies on the bench fed.

So, before you start waving the banner to get rid of partisan judicial elections in Texas, just ask yourself if you really want a governor to have the power to appoint every judge across the state.

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Why would he lie?

We've all heard it at trial whenever there is a question about the veracity of a police officer's testimony. The prosecutor will ask the jury why a police officer would risk his job and his reputation for the sake of lying to get one conviction. Judges who came to bench straight out of the DA's office or who have never defended anyone accused of a crime can't fathom why an officer would lie. And jurors, most of whom have never set foot inside a courtroom, tend to believe the police because that's the way they were raised.

That's exactly what Kyle Reeves, then a prosecutor in Brooklyn, said to the jury in 1997 when a defense attorney accused the state's main witness, Louis Scarcella, a former homicide detective. And, as is par for the course, the jury bought the story.

The defendant, Jabbar Washington, said that Det. Scarcella told him what to say in his confession and beat him until he said it. Interestingly enough, Mr. Washington's confession began with the same two sentences that suspects in other cases interrogated by Det. Scarcella said.

“Our experience all around the city is that errors by police and errors by prosecutors go hand in hand and frequently become a toxic mixture,” said Steven Banks, the chief attorney for the Legal Aid Society, which represents many of the defendants whose cases are under review. “There are a series of circumstances that should have set off alarm bells both at the precinct and in the prosecutor’s office.” 

Now the Brooklyn District Attorney, Charles Hynes, has ordered an investigation into about 40 cases investigated by Detective Scarcella. Earlier this year Mr. Hynes revealed that an innocent man spent more than two decades behind bars due to a "flawed investigation" by Detective Scarcella.

Doubts about Det. Scarcella's integrity began to rise long before that trial in 1997. At least six defendants in murder cases have claimed that Det. Scarcella made up their "confessions" himself. In a rape trial back in 1983, a judge said that the defendant was more credible than the detective due to the number of times Det. Scarcella responded "I don't remember" under cross examination.

As an aside, earlier this year I tried a case in front of Judge John Clinton in Harris County. When it came to light that, despite the fervent denials of prosecutors, that both police officers had been investigated by internal affairs, I asked the judge for a continuance so that I could obtain the records I had previously requested from the city. I told the judge that since we now knew these files existed that I needed an opportunity to review them to find out if there was anything else we weren't being told. Judge Clinton, a former police officer, then said that he just couldn't fathom that a police officer would risk his career by lying on the witness stand.

It's this attitude on the bench that has led to the utter decimation of the Fourth Amendment because, in a world in which defendants always lie and the police never lie, nothing is ever suppressed.

Another question that sticks out in this case is why on earth the Brooklyn DA's Office - the same office that vouched for Det. Scarcella over the years - is even involved in the investigation. Even a blind man can see the blatant conflict of interest. Once a person is convicted, the prosecutor's office will fight tooth and nail to keep that person behind bars - regardless of the evidence before them.

The critics note that Mr. Hynes, 78, is seeking re-election and that Mr. Scarcella’s daughter works in the office as a prosecutor. In a brief interview, Mr. Hynes said that so far no glaring problems had been discovered in the review. He said the detective’s sloppy work was not brought to the office’s attention until a year ago, when it reopened the case that led to an exoneration. Even in that case, he found no reason to blame the prosecutors. 

“I am not going to second-guess the assistants involved,” Mr. Hynes said. “They are very good trial lawyers.”

We see it in almost every exoneration case. Prosecutors will argue til they're blue in the face that the defendant had a fair trial and that the evidence was overwhelmingly in support of the verdict. They will fight to keep evidence from being retested. They will fight to keep new evidence out. And so, unless Mr. Hynes' office finds that every conviction involving Det. Scarcella should be tossed out, there will always be questions of just how honest the investigation was.

I mean, after all, Det. Scarcella's being investigated by the same office who told jury after jury what an honest cop he was.

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Trying to revive the spirit of George Wallace

The states of Texas and Mississippi have decided that the 14th Amendment just doesn't apply to them when it comes to recognizing same-sex marriage. Despite a Pentagon directive that the National Guard units in the states extend benefits to same-sex spouses in the wake of the Supreme Court's decision in the DOMA case, someone in Texas decided to ignore it.

Officials cited the definition of marriage as being between a man and a woman found in the Texas Constitution as justification for denying equal protection to the spouses of same-sex marriages. Maj. John Nichols did tell those affected by the decision that they could apply for benefits at federal installations and that the Texas National Guard would not deny them benefits.

This is precisely the issue I wrote about some time back regarding the inevitability of the legalization of same-sex marriage. These acts of defiance by Texas and Mississippi bring into question whether same-sex spouses are being treated the same as traditional spouses.

Forcing same-sex couples to apply for benefits at a federal installation discriminates against same-sex couples as they are being required to do more to obtain the benefits they are legally entitled to receive. All that remains is for one couple to refuse to bow down and then walk over to the courthouse to file suit alleging that their civil rights were violated.

From the Dallas Morning News:

Pentagon officials said Texas appeared to be the only state with a total ban on processing applications from gay and lesbian couples. Spokesman Lt. Cmdr. Nate Christensen said federal officials will process all applications from same-sex couples with a marriage certificate from a state where it is legal. 

Alicia Butler said she was turned away from the Texas Military Forces headquarters in Austin early Tuesday and advised to get her ID card at Fort Hood, an Army post 90 miles away. She married her spouse - an Iraq war veteran - in California in 2009, and they have a 5-month-old child. 

"It's so petty. It's not like it's going to stop us from registering or stop us from marrying. It's a pointed way of saying, 'We don't like you," Butler said. 

She said she was concerned the state would withhold survivor benefits if something happened to her wife while she was activated on state duty rather than on federal deployment.

It is a violation of the Equal Protection Clause for a state to recognize the out-of-state marriages of some of their residents while not recognizing those of others - particularly since the only reason is the sexual orientation of those involved.

The leaders of both Texas and Mississippi should be ashamed of themselves. Being seen as supportive of same-sex marriage may not be a vote-getter in either state, but guaranteeing equal protection under the law to the citizenry should trump base politics. Of course we all know that the State of Mississippi has a pretty abysmal record when it comes to equal rights. We also know that the establishment (white) churches played a large role in defending segregation in the 1960's. The circle of good ol' boys who have run Mississippi for generations is slowly, but surely, coming to an end and they are doing everything they can to cling to power for as long as possible.

The right wing in this country (and others) have long used religion as their justification for fighting the extension of equal rights to the populace. That great opiate of the masses has been very effective in keeping the oppressors in power.

These western fundamentalists are every bit as wrong as their Islamic fundamentalist cousins in, and around, the Middle East. I find it very amusing to listen to the wingnuts express their hatred for those who would advocate theocracy in other parts of the world while they do their best to build a theocracy at home.

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