Sunday, April 09, 2017

Paltry Grits posting rate masks busy time at #txlege

For readers disappointed with the paltry recent posting rate here on Grits, I should mention that most of my writing these days is happening on Just Liberty emails and action alerts. If you haven't signed on to our advocacy list, please do so. Otherwise, here are a few odds and ends which merit readers' attention.

Good Samaritan bill up in House committee
Rep. Ryan Guillen's Good Samaritan legislation (HB 73) is up on Monday in the House Criminal Jurisprudence Committee, but the biggest threat to its passage remains uncertainty about Gov. Abbott, who vetoed the bill last year and is now moving the goal posts regarding his concerns. This is a major public health concern. Overdose deaths are now twice as common in Texas as murders. Go here if you'd like to send a message to Gov. Abbott asking him to support Texas' Good Samaritan legislation.

Debtors prisons and deconstruction of the administrative state
On the same Criminal Jurisprudence agenda Monday, Rep. James White has a great little bill, HB 3279, limiting various debtors-prison practices. Hope to see this one get some traction. Anyone truly concerned with "deconstruction of the administrative state" will want to begin here. See a fact sheet on the bill from Texas Appleseed and the Texas Fair Defense Project.

Sandra Bland Act, DRP, up on Tuesday
Big day in the Homeland Security and Public Safety Committee Tuesday morning, with the Sandra Bland Act (HB 2702) and the most likely vehicle for Driver Responsibility Program repeal (HB 2068) both on the committee's agenda.

Halted execution implicates pair of capital bills
The Court of Criminal Appeals halted Paul Storey's execution last week in a move which implicates a couple of pieces of pending legislation. Prosecutors told the jury in the death-penalty phase of Storey's case that the victim's family wanted the death penalty, which turned out not to be true. Jurors were given faulty jury instructions which HB 3054 by Herrero/Smithee aims to fix. That bill was heard last week in the House Criminal Jurisprudence Committee and may get a vote as early as Monday. Meanwhile, the remaining issues in Storey's case reportedly regard whether Storey's appeals attorney could have reasonably discovered the true feelings of the victim's family about the death penalty. In other words, once again the quality of direct capital appeals are being called into question, which brings us to Corrections Committee Chairman James White's HB 1676 creating a new capital public defender for direct appeals (it'll need a catchier name than that). Maybe it'll turn out Storey's attorney couldn't have known the family's views, or maybe he just didn't ask them. But minimalist investigation and slipshod work product on direct appeal, along with cost effectiveness, are exactly the recurring problems that prompted the East Texas Republican to propose this new office. The appellate process should have vetted these subjects long before now. Storey's case could be a poster child for why these bills are needed.

When innocent SWAT raid victims defend themselves
A Corpus Christi man has sued the police department after a wrong-house SWAT raid in which he shot three officers. He was jailed for two years before being acquitted by a jury. Noted the Caller Times' Krista Torralva, "Police use of no-knock raids have recently come under public scrutiny and Rosas’ case has been included in national conversations. The Washington Post and New York Times wrote about Rosas’ case after his acquittal."

The End of Local Laws
Governing magazine says Gov. Greg Abbott wants to end local laws.

Richard Dreyfuss on Kerry Cook
Actor Richard Dreyfuss discusses Kerry Max Cook with Texas Monthly's Michael Hall. Grits couldn't agree more with Dreyfuss' answer to Mike's final question.

You gotta start somewhere
The Texas Tribune has published a couple of good primers on testifying at the capitol and making your voice heard by lawmakers. Nicely done.

Progress, slow but broad
While some folks understandably express impatience at the slow pace of criminal justice reform, it's easy to underestimate how difficult it was just to stop the upward trajectory of mass incarceration and begin to turn the curve downward. Pew's Adam Gelb describes the baby-step progress made on that front at the state level.


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James S said...

About Storey: As interesting as that case might be, I really can't see the connection that would justify the statement that "the quality of direct capital appeals are being called into question." And, yeah, I've disagreed with you about that before.

I'm not sure what a capital appeals office or "better representation" could have done differently. As you know, there are only 30 days to file a motion for new trial. That deadline is long before any record of the trial is complete, and long before any appellate attorney could have even known about the disputed jury argument. And outside-the-record facts that came up during the preparation of the appellate brief couldn't be argued anyway.

As for this case in particular, if there's a problem, it was with Storey's trial representation. It's shocking that Larry Moore didn't object to the not-based-on-evidence assertion by the prosecutor about the victim's family's feelings. That's regardless of whether they lied about it.

Anonymous said...

I seem to recall DPS promised to do another amnesty round for the DRP when the Lege met in 2015. It's April 2017, still no amnesty round. Interesting. Will DPS be punished for this? Of course not! They'll get cigar boats for Lake Amistad! And Apache helicopters! And drones!

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Anonymous said...

RE: Halted execution implicates pair of capital bills

The lying POS Prosecutors from Tarrant County were Christy Jack and Robert Foran.

Per the Subsequent Application for Writ of Habeas Corpus, March 31, 2017 ,page 5
"The prosecutors, Christy Jack and Robert Foran, were aware that the Cherry's were opposed to the death penalty, including death for Mr. Storey...Judge Berry was completely unaware, until recently. that the Cherry's adamantly opposed the death penalty for Paul Storey."

(Rule 4.01 Truthfulness in Statements to Others - In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person)

So which ethically responsible Texas Attorney reading this blog is going to file a complaint to the State Bar?

(Rule 8.03 Reporting Professional Misconduct(a) A lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.)




James S said...

Well,yeah, that's a pleading. They have to prove that stuff.
I'm curious to see Foran's affidavit. That doesn't seem to be attached to the writ.

Anonymous said...


But, would an affidavit from Foran be any more or less truthful that what he stated in court?

Affidavit of Ashlea Deener (interning for Christy Jack and Robert Foran during the trial)
"I was present for a meeting with Jonas Cherry's widow. I do not remember her saying whether she was in favor or against the death penalty. She seemed to defer to the prosecutor's decision. I remember her telling the prosecutors how Jonas Cherry's parents felt and that they were against the death penalty...I did not participate in any meetings with the victim's parents and do not know if the prosecutors had a meeting with them in person or over the phone. I remember asking the prosecutors how they would handle the victim's parents not wanting the death penalty. I do not remember the response, only that they were not calling them as witnesses."

(not calling them as witnesses so that the Prosecutors can misrepresent their opinions during closing.)

The Affidavit from Christy Jack is essentially worthless in that had no information regarding direct knowledge of the parents anti-death penalty stance.

In reality, the only proof would be a video of the parents making such statements.

Yet one more example of the he said/she said mockery of the courts.

Anonymous said...

At the very least, one might think that Defense Attorneys Michael Ware and Keith Hampton would be the first to report this unethical behavior given that they wrote the writ.

Anonymous said...

Well, unfortunately, Ashlea's affidavit can't tell us what conversations took place between prosecutors and the victim's parents.

Anonymous said...

The statement Prosecutor Foran made to the jury was, "And it should go without saying that all of Jonas [Cherry's] family and everyone who loved him believe the death penalty is appropriate."

It SHOULD go without saying, and yet he said it anyway.

Was Foran's statement to the jury factually true? Who knows. But it goes without saying that it was stupid. (I said it, and typed it anyway.)

Minus the parents, proving that "EVERYONE who loved him" would first entail finding EVERYONE, questioning EVERYONE and recording EVERYONE's opinion. And how would an investigator know if they actually found EVERYONE? Maybe they couldn't find EVERYONE. Supposedly, Jesus loves EVERYONE. Did they question Jesus about the Death Penalty in this case (I'm guessing he would be against the Death Penalty.)

It goes without saying that "all of Prosecutor Foran's colleagues believe he has oatmeal for brains and is unfit to dress himself in the morning, much less lead a trial."

Can it be proved? Could an investigator find ALL of Foran's colleagues and get ALL their opinions on Foran's mental capacity for dressing?

See what a ridiculously stupid statement it is? By all means, let's spend more taxpayer money, time, and energy on proving or disproving what a Prosecutor stated as fact or non-fact. The State had its shot at executing Storey, but stepped over the ethical line.

But that goes without saying.

Anonymous said...

Which is why his attorney should have objected...

Anonymous said...

Defense Attorney Larry Moore's affidavit -

"I nevertheless did not object to the statement as I believed that the Court would find the argument was "invited" by, and in response to the testimony that we had introduced from members of Mr. Storey's family asking that the jury spare his life. As I believe that the Court would ultimately overrule my objection on that basis, I did not want to provide the State with the opportunity to repeat or to emphasize the argument in response to my objection."

"It is my memory that we were advised by the prosecutors that Mr. Cherry's family had indicated that they did not wish to talk to any members of the defense team in regard to the case, so we did not attempt further contact with them."

The defense attorney also believed the Prosecutors. So much for "zealous representation."

Lying Prosecutors and ineffective Defense Attorneys...

Why does Texas even have trials? The defendants don't stand a chance.