Wednesday, April 22, 2009

Crawford protesters earn First Amendment victory at TXCCA

Here's an unexpectedly positive ruling from Texas' high criminal court that shows how divided the court has become. Via the Houston Press' Hairballs blog:
The Texas Court of Criminal Appeals -- the Supreme Court for criminal matters -- has upheld a lower court's decision to toss out the convictions of two protesters arrested outside of President Bush's Crawford ranch (Does he still go to that thing anymore?)

By a 5-4 vote, the TCCA found that the arrests were not warranted.

"Today's court ruling is a monumental victory for the First Amendment," ACLU of Texas Legal Director Lisa Graybill said. "Time and again we have said that Dr. Hardy and Mr. Myers were arrested for no other reason than expressing their views."

Here's what the majority opinion said:
One might also "obstruct" a highway by aiming a strobe light at oncoming traffic, thereby rendering passage unreasonably hazardous, but cavorting on the sidewalk while dressed as a gorilla would not "obstruct" a highway. A large object placed on the side of the road, but in the line of sight on a curve in the road, might also "obstruct," although a smaller object in the same location would not. In sum, an order to move to prevent an obstruction must be reasonable in the prevailing circumstances.
[Presiding Judge Sharon] Keller took time out from fighting for her legal career to write the dissent:
Photographs from the August protest show tents, cars, and port-a-potties encroaching on the pavement, and people sitting, standing, and walking on the pavement. Implicit in the testimony of one of the officers is that no arrests were made because there were so many protesters and so few officers. The situation in August had gotten out of hand, and law enforcement officers - quite reasonably - wanted to prevent that from happening again.
We're just glad the ACLU got its filings in on time.
If we were talking about any other court, this case probably wouldn't have been so close. After all, the court was being asked to decide when someone violated the "obstruction of a roadway" statute (Penal Code Sec. 42.03) "when no actual obstruction occurred."

Judge Keller's dissent, joined by Judges Meyers, Keasler, and Hervey, agreed they weren't blocking traffic, but bizarrely claimed that defendants, "by sitting in a tent beside the road, rendered passage unreasonably inconvenient or hazardous."

It's a strange fact that four members of the Court of Criminal Appeals think you can obstruct a roadway when you're not in it, but perhaps the bigger surprise is that five judges on the court disagreed with them.


Robert Langham said...

I think it's widely agreed that most Americans are out of touch, un-informed and apathetic to the political process. This however does NOT mean these people aren't WELL represented in government.

Anonymous said...

can someone explain to me how we could even have a trial about obstructing a roadway when it wasn't obstructed.

What is it in Texas that makes it possible for DA's to create their own law and conduct trials that have no bearing on the statute?

It happens quite often here.

(Robert, I can see how your post could be an answer)

Anonymous said...

Does anyone have any ideas on what types of activism would perhaps shame DAs into letting such trials proceed. I'm thinking back to my days as a student in NYC in the late 80s/early 90s and the breathtaking success of AIDS activism and ACTUP.

We need to get something like this going in Texas. I'd love to hear thoughts from those involved in criminal justice activism here.

I think one thing that made ACT UP so successful was their absolute fearlessness about being "in your face."

Any thoughts? With great respect,

Anonymous said...

Mea Culpa - I meant what types of activism would shame DAs into PREVENTING such trials, thanks

Mark#1 said...

Any alteration in the status quo will necessarily have to occur due to demographic change, which is coming. Understand that sheriffs, district attorneys, and judges are elected--thus they are politicians who are ostensibly responsive to their "constituents." I regret to inform you, but currently the majority of those "constituents" aren't really too concerned about constitutional rights for "those people" or any manifestation of the "other." But I've merely restated what Robert said up top.

Anonymous said...

Many interesting things happen here in McLennan County.

Check this recent one:

Never a dull moment.

Anonymous said...

oops that was the wrong's the right one

Anonymous said...

I'd love to know more on the Tammy Polk case.

Regarding ACT UP and the current legal situation in Texas - at the beginning of the AIDS epidemic a lot of people were really indifferent -

I got involved in ACT UP NYC as a young straight woman because I was an artist and was losing friends to AIDS.

I really think the "in your face" aspect of the activism speeded up the results. I think it could be applied here

If 1 in 10 Texans has been convicted of a felony that's a lot of Texans who are being affected by the criminal justice system. Lots of mothers, friends, kids, students, colleagues ....

What made ACT UP so breathtakingly effective in such a short time was that people were completely fearless - they'd say, I am a gay man, and I have AIDS, or I'd say I'm a straight woman and my best friend died of AIDS, and it's a tragedy. There was a psychology of bombardment at play. You see, people were afraid to acknowledge that they were being affected by the AIDS epidemic - and when people began to speak about it, the taboo was broken. Families got together on the issue, people who were political far apart found they actually were pretty similar when it came to the issue of how they thought we should take care of the sick.

Ryan White, the young man who acquired AIDS through a transfusion and eventually died, was a galvanizing figure. The many victims of the Texas criminal justice system (such as Terry Cook) can be similar figures. Or people who have been less victimized by still suffered - who may have more energy and less anxiety around the issue.

I would love to see something similar happen in Texas with the criminal justice system (to what happened with ACTUP) So many people I know know of someone who has been hurt by it. It was a chain reaction.

ACT UP was helped a great deal by the fact that many Columbia University and NYU students and graduates were involved. So it was a scrappy in your face movement, but it also involved NYC's best and brightest. So if they were arrested for protesting (like the Crawford situation) many people had their back.

We could definitely set something like this up in Texas - we have UT, Rice, and religious universities.

ACT UP also used a kind of collective shaming technique - which worked well. The idea was, we see you and we've noticed you're acting like a creep. We're watching and we're not going to stop. We're taking notes.

This was a kind of moral pressure that made it easier for fence sitters to pick ACT UP's side.

This technique also made it very difficult for offenders to continue their objectionable behavior. Look at what happened with Sharon Keller after the NYTimes editorial.

I think our time is now, and I think if we pushed it a little, abandoned some politeness for the sake of pressing the issues, we could accomplish a lot.

ACT UP had simple slogans:
Silence = Death
Fight Aids, Fight Back, Act Up

They really changed the world.
We could come up with similar slogans for civil rights issues in Texas.

I think the demographic shift has already taken place. Carpe Diem.

Anonymous said...

There's a lot of shame at play for anyone involved in the criminal justice system - there's a taboo involved not unlike the AIDS taboo. If we could break the taboo, we could awaken a sleeping giant.

Anonymous said...

Sorry to hear of Attorney Polk's situation. If you have more details, post them and I will spread the word through my NYC and Northern Midwest networks.

Anonymous said...

This prosecution cannot have been too partisan since the elected district attorney in McLennan County (John Segrest) is a Democrat.

Gritsforbreakfast said...

I don't believe the prosecution was "partisan," 6:02. I do believe it was unwarranted. Also, these were misdemeanor charges so it would probably be the county attorney.

Anonymous said...

Here's another link on Tammy Polk. The AG, of course, is getting involved in it.

I would like to know how many other attorneys have delinquent dues.

Mark#1 said...

As far as recreating a campaign style in Texas that was very effective in New York, I would point out that the polity here is dramatically different than that found in New York. Texas is the buckle of the Bible Belt, and it prefers its Bible portions to come from the Old Testament, thank you very much. Thus, punishment and judgment are truly state-wide pastimes here, at least while the evangelical/Southern Baptists core still holds sway.
Though the percentage of adults having a felony conviction or being under supervision of the state may be notable, that portion would still need the support and votes from the majority; who still likes themselves some punishment, shame, and, oh, punishment, to be the core components of the criminal justice system. The fervency with which these types hold onto their core belief that man is a sinner who needs himself some good punishment causes them to mobilize in percentages which allows them to hold an inordinate sway in elections, since most of the other demographics don't really care enough to get involved.

Anonymous said...

Mark#1, I hear you - and I also hear your frustration.

I still think it would be worth a try.

We're not doing enough here - and we're not doing enough outreach to the national community on abuses here.

Frankly, I think there are national activists who could be recruited and would come here and do a lot of the work. I think a lot of them have NO IDEA how bad the criminal justice system is. It's one thing to understand the death penalty in view of the supreme court decisions and socioeconomic factors - it's quite another to understand court appointed attorneys who miss apeals and DAs who invent their own law and then pin it on a statute - much like the game pin the tail on the donkey. The legal systems in most northern states are way to evolved to allow such a thing.

Yes - there are evil people everywhere - and there are terrible abuses up north too. But it's not systemic - and there aren't lots of procedures processes in place which are designed to create the image of coplying with national standards while doing the opposite (I'm thinking of Marbury v. Madison and the Rothbury case - all these funny fake hearings that supposedly happen but don't really regarding probable cause - our bail system where you don't have an arraignment unless you are jailed for days, et cetera et cetera.

I think national outrage if these factors were understood would be considerable.

Here in Texas we're so demoralized by the abuses - and we think they're allowed, because our judges and a lot of our legal community (in the interest of their survival and the survival of their clients) act like they're OK

I had no idea about the extent of civil rights abuse in Texas until I moved here and had lived here long enough to get over being dazzled by the beautiful Texas friendliness and charming manners (I'm still the world's biggest fan of both when they are sincere:-) I do believe the majority of Texans have tried to create a better way of life here, and are incredibly generous in trying to share it with others -)

I think in many ways the enemy is ignorance and a virulent minority which is entrenched in law enforcement.

This minority in law enforcement is very concerned with keeping their power - so they put a lot of energy into having a big public presence and they also intimidate people. It's about their power,, and their holding on to it.

I undestande what you mean about the bible belt - and frankly, until I moved here I'd never really experienced so many people pretending to be religious while being evil. A famous Lutheran minister in Washiington that I worked with said that it's an example of the demonic in Christianity - at the time I thought it was an extreme statement - not anymore.

But a lot of people are in churches in part because they believe love thy neighbor as thyself, or they believe religious precepts like the one I grew up on, which said you were supposed to imagine that every person you encountered was actually Christ suffering, and you were supposed to act accordingly (When i was hungry, you fed me, when i was naked, you clothed me, when I was thirsty ....)

Mark#1 I respect you greatly - and hear your point - it would not be easy, and we all have to take care of ourselves to we can keep fighting the good fight for civil rights and true justice.

But I think Act Up's approach was so breathtakingly effective - we might want to be more in your face, and less polite.

With great respect and admiration,

Anonymous said...

Correction: Above, I meant Rothgery, not Rothbury

Anonymous said...

Correction II: When I said abuses up north weren't systemic, I meant that narrowly - in that there aren't lots of procedures and duplicate courts and hearings designed to give the impression of complying with the fourth and sixth amendment while not doing it. I can't tell you how shocked most people up north are when it's explained to them - and how many want to jump on a bandwagon to do something about it. I'm talking about republican retirees, not professional liberal activists.

Anonymous said...

So what would Keller have said if these guys had been protesting infront of an abortion clinic?