Monday, July 18, 2016

The Perils of Politicians Pandering

Ugh, politicians.  They truly can be nauseating critters.

In most cases, the Empty Suit style of shaking hands and kissing babies is innocuous enough.  I mean, if a vote is earned because someone agrees with your gutsy stand that babies are cute, more power to you.  Sadly, the voting public has proven time and again to not be all that hard of a sell when giving up its vote to style over substance.  I could expand on this, or you could just switch over to any major news channel and you'll get the point.

Try as I might, though, I just can't get past the frustration of watching elected officials allow political pandering to seep into the criminal justice system.  As I've written time and time again, partisan politics have no place here.  If a candidate wants to sit on a criminal court bench or run for District Attorney, his or her position on abortion, gay marriage, foreign policy and taxes are irrelevant to their job description.  In theory, those who hold elected positions in the criminal justice system should be governed by the law and only the law.  What they do should be insulated from politics of any kind.

Unfortunately, the horrific events in Minnesota, Louisiana and Texas over the past weeks have practically begged for hardcore Republican politicians to prove to the electorate how pro-police they are.  There's nothing wrong with being pro-police, mind you.  I've never been shy at expressing my admiration for police officers and the jobs they do.  I admired them as a kid.  I admired them as a prosecutor.  And even though I've heard them grumble about my move to the "Dark Side," I continue to admire them now as a defense attorney.

The killing of eight officers in Dallas and Baton Rouge hurt my heart and they make me worry for my friends who are police officers locally and around the country.

And before someone starts asking, "Why are you only talking about the deaths of police officers and not the killings of Alton Sterling and Philando Castile?", bear with me.  I'm not writing this particular post to compare the worth of competing tragedies, but I will talk about them in a moment.

Today, Texas Governor Greg Abbott announced that he would be proposing what he called the Police Protection Act, to the cheers and accolades of all police-loving Republicans everywhere.  If the Act passes (and what good politician would ever oppose a law that protects the police?), if a crime against a police officer is proven to be motivated by the hatred of police officers in general, then that crime can be found to be a "hate crime" and raised to a higher degree of crime.

Uh huh.  Now, let's talk about that for a minute.

As noted in the Governor's press release, police officers (in their capacity as public servants) are already treated as a protected class under the laws of the State of Texas.  If you punch me in the face, the worst you are looking at is a year in the county jail, and perhaps an enthusiastic hug from Pat Lykos.  If you punch a police officer in the face, you are looking at spending the next ten years in prison.

If you were to take a gun and shoot me in the leg, you would be looking at a maximum of twenty years in prison.  If you shoot a police officer in the leg, you would be looking at Life in prison.  If you shoot me and kill me, the worst thing that could happen to you is Life in prison.  If you shoot and kill a police officer, the Death Penalty is most likely going to be sought.

The point is, Texas Law already has very harsh upgrades in punishment when the victim is a police officer.  Abbott's proposals under the Police Protection Act will have very few practical upgrades in punishment, but damn, it sure does show how much he loves police officers, doesn't it?  Okay, if you punch a police officer in the face solely because you hate police officers, you could be looking at up to twenty years rather than ten.  Of course, the prosecutor is going to have to prove up that hatred of police officers was your sole motivation  -- not as easy as it might sound.

But it isn't as if an Aggravated Assault on a Public Servant can be upgraded from a first degree felony to a capital offense without a fatality.  The big thing that Abbott's proposal does is call for police officers to be treated as a "protected class."  However, police officers already are a protected class.  The Act is 99% pure pandering and Republicans are loving it.

Although I'm not a big fan of Governor Abbott in general, one can forgive him for his pandering.  Even though he is the former Attorney General of Texas and should be a little embarrassed over it, "Feel Good Legislation" is part of a Governor's job description, I suppose.

That can't be said for Criminal District Court Judges, however.  An honorable Criminal Court Judge is the one guided by the law and only the law -- public opinion be damned.  Law above politics no matter what the fallout, right?

Apparently not if you are Judge Kerry Neves of the 10th District Court of Galveston County, who made a post on his Facebook page today, which read as follows:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will play a big role in whether any such agreement is approved.
If approved, the defendant will be required to read the statement in open Court.
I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

I love the last paragraph.  "I may only be one person, one Judge . . ."  Martyrdom is a lonely business.  "If you are a registered voter an officer, spouse of an officer or know an officer, make sure they know of this change in my Court."  At some point, there seems to be a very fine line between showing solidarity in the wake of a tragedy and capitalizing off of it.

What better way for a judge to announce that he has prejudged the credibility of absolutely every officer that will ever testify in his court and graded that credibility as Immaculate?  What better way to announce that, as an elected judge, you cannot be open to the full range of punishment on any case where a law enforcement officer is the victim?

So, the kid that runs three feet from a police officer before getting tackled doesn't get probation, huh?  The guy that elbows the officer in his bulletproof vest is looking at a minimum of 2 years TDCJ in your court?  That Facebook post pretty much assures us that there are no shades of gray in Judge Neves' court.  As my friend Jeremy Gordon pointed out, if you are a defense attorney in Judge Neves' court, you better have a Motion to Recuse ready, unless you want to be ineffective.  Politics have forced out any minimal appearances of judicial neutrality.

Which brings me to the killings of Alton Sterling and Philando Castile.

I've watched the videos on both shootings and I've read the different articles (and multitude of personal opinions) on them.  My personal opinion is that it looks pretty damn bad for the police officers involved.  I'm not a police officer and I wasn't there, but what I've seen merits a trial.  I've been disappointed in those who have tried to drag Sterling and Castile's reputations through the mud rather than address the actions of the police officers.  

I recognize that police officers have dangerous jobs and risk their lives on a daily basis.  They also have special training and equipment that is designed to minimize the risk of death for all parties involved in a police encounter.  Just as a surgeon would be held accountable if he or she were to act outside of his or her training and cause a death, so should a police officer.  This isn't a call for conviction.  It's a call for examination and accountability.

I can't imagine any rational mind looking at the videos of the deaths of Sterling and Castile and thinking that neither of them deserve any level of scrutiny.  To feel that way exposes a level of bias that is contrary to the principles of criminal justice.

It's apparently a level of bias that Judge Kerry Neves is quite comfortable with.


Anonymous said...

Let the judicial grievances begin... I hope Neves has one filed against him by the end of the week. So much for fulfilling his oath of being a fair and impartial judge. And I'm sure Judge Neves believes he is one of the greatest Americans to ever serve in office. Apparently he has no qualms violating an oath he swore to while his hand rested on a bible. Good man Judge Neves, good man. I hope you're proud.

Mark W. Stephens said...

It may not be a call for a "conviction" but it sure seems like a call for an "indictment." Without...the facts?

Murray Newman said...


Part of the distrust that has become apart of our criminal justice system is the fact that there seems to be a separate standard for indictments of police officers than there is for everyone else. I think you and I both know that most defendants in Harris County are routinely indicted after a blurb spoken by a prosecutor that often lasts under a minute. Officers are often only indicted if the case can be proven beyond a reasonable doubt. That's not the standard for Grand Jury.

As a defense attorney, I'm keenly aware that there can be much more evidence that negates initial impressions. However, also as a defense attorney, I'm routinely told that those defenses aren't appropriate in Grand Jury -- they should be reserved for trial. If you are asking me whether or not what I've seen rises to the level of Probable Cause for an indictment, my answer would be yes. I know that is probably not going to be a popular answer to my friends in law enforcement, but let me pose this question to you:

If we were to take a step back and pretend that law enforcement was not involved in either of these cases, what would happen? Instead of two police officers standing over a man on his back in a parking lot, it was just two random guys. They then shot that man multiple times. Would that be enough to find that there was sufficient evidence to merit further investigation in a trial? Similarly, if a video of a man bleeding in the front seat of his car showed a non-police officer standing there, holding a gun through the window, would that merit further investigation?

Trust me when I say that I do not take your question lightly, nor do I answer it lightly. I fully recognize the fact that many allegations of police wrong-doing are absolutely bogus and need to be flushed at Grand Jury. However, when there are some questions that need further answer, then I think that being a police officer should not immunize someone from facing trial.

Anonymous said...

Calling for a trial for the officers in the Castile and Sterling cases at this point is just as wrong as blindly calling the shootings justified. There are potentially troubling aspects to both cases, but we ought not be making these kinds of judgments without all of the real facts. Relying on always incomplete and often wrong media reports is, on its best day, dangerous. Commitment to the law also requires allowing it to take its investigative course.

As to Never, spot on. He basically just announced that few, if any, such cases will be litigated in his court- at least not with a fair and impartial magistrate.

Troy McKinney (because I cannot remember my Google password)

Mark W. Stephens said...

I never said there should not be an investigation. I am saying there should not be a blind indictment. I am saying that those officers don't deserve to be handcuffed, perp-walked, mug shot and fingerprinted every time a 30 second video on youtube "looks bad." Once that starts to happen, you would see a mass exodus of police officers heading into a different profession.

Look at the Freddie Gray fiasco. They did exactly what you are calling for. And case after case is being dismissed. How do those officers now go back and get their reputations back? How do they testify in court without a defense attorney trying to indict them all over again in their next jury trial? How do they even go back to work?

A criminal indictment for a police officer is career ending. So, yes, we need to be extremely careful before over-reaching in cases where there is clearly no criminal intent and the officers were in the performance of their duty.

And unless you are really comparing police work to common thuggery, then yes there should be a difference in how cases are handled. If you were to compare the Alton Sterling case to a non-officer situation, and Sterling pulled a gun on a citizen (which he did by witness statements) and two citizens, rather than officers, attempted to prevent him from pulling the gun AGAIN and shot him when they felt he was about to retrieve the may well be viewed as a self-defense case. (Assuming they were licensed to carry as the officers were.) In fact, if you represented one of the citizens there is no doubt in my mind that is how you would present their defense...IF they were indicted at all. I have my doubts they would have been.

A police officer acting in an official capacity is not treated as a normal citizen. Nor should they be. It goes both ways.

Anonymous said...

Where do I sign up for the hug from Pat Lykos.

Anonymous said...

"I've watched the videos on both shootings and I've read the different articles (and multitude of personal opinions) on them. My personal opinion is that it looks pretty damn bad for the police officers involved. I'm not a police officer and I wasn't there, but what I've seen merits a trial. I've been disappointed in those who have tried to drag Sterling and Castile's reputations through the mud rather than address the actions of the police officers.

I recognize that police officers have dangerous jobs and risk their lives on a daily basis. They also have special training and equipment that is designed to minimize the risk of death for all parties involved in a police encounter. Just as a surgeon would be held accountable if he or she were to act outside of his or her training and cause a death, so should a police officer. This isn't a call for conviction. It's a call for examination and accountability."

(A) The Mosby Standard of evidence?
(B) Medical errors are responsible for 130,000 deaths (the lowest estimate) per year. Holding doctors to that standard would be devastating to the medical field.

Anonymous said...

Alton Sterling was a violent man with an extensive criminal history. And you think considering that in terms of whether he was capable of shooting those police officers is..."dragging his reputation through the mud."

I guess it does sound "bad" when you tell people he fought the police once before and tried to pull a gun on them then too...but he dropped it during the fight. But facts are facts.

Those officers asked him nicely, he refused.
They tased him. It didn't work.
They tackled him. He resisted.
They told him not to reach for the gun. He did anyway.
They tried to wrestle his hands away from the gun. They couldn't.

What else should they have done? Logically, what do you see as the next step?

He's reaching for a gun and everything they tried did not work.

Are you suggesting that they should have let him get the gun out of his pocket??


Because that was the next step. He was getting the gun and nothing they could do was stopping him.

Then, what were they supposed to do when he got the gun???

Run away?

Anonymous said...

Looks like some people are starting to believe perception over rules fact. Sad day

Lee said...

My letter to Governor Abbott:

Dear Governor Abbott,

I am horrified to learn that you wish to proposed this legislation which enhances any crime committed against a police officer as a hate crime. I fear that you do not fully understand the implications that this legislation has.

The problems start with the many lines that the federal government and state governments continue to draw between citizens and the police that make it look like United States is less a free country but a militarily occupied one. An example of this are the many current statutes on the death penalty (in Texas for example) and which murders qualify as a capital offense. The single crime of homicide against a barber, chef, engineer, teacher, physician, dentist, sailor, fishermen, priest or any number of other civilian jobs have the maximum punishment of a life sentence. However, the homicide of a police officer (judge and prosecutor as well) must be punished by death (especially in Texas). The message that these kind of laws sends out is that some lives are worth more than others and not all human lives are equal. Some people are but mere pawns and others more important pieces. The message is that if you kill a police officer you will face the death penalty. However, the murder of any other civilian (for example the barber, chef, engineer, teacher, physician, dentist, sailor, fishermen or priest) is more tolerable and the punishment is less.

This separation creates two separate castes determined by employment. The first class citizenry consisting of police (including judges and prosecutors) and the second caste citizens being everyone else. With the state choosing what lives are of more value than others I would expect significant animosity to breed and occasional violence to erupt between the first caste and the second caste. Under the current logic of this part of the capital murder statutes we could probably create a third class or citizens based on employment including the homeless, drug dealers and prostitutes with the murder of these individuals punishable by maybe 10 years in prison. This follows the logic of the state that certain lives are worth more than others based on the occupation of the victim. This distinction not only undermines that jargon of all life being created equal but also creates an additional barrier that continues to erode the relationship between civilians and police. A human life lost to the violence of murder is equally appalling as the next and one’s occupation should not be relevant. Would you consider passing legislation entitled the Plumber Protection Act or the Electrician Protection Act?

This conversation reminds me of murder of Walter Scott that occurred on April 4, 2015, in North Charleston, SC. Mr. Scott was pulled over for a daytime traffic stop for a non-functioning brake light for a non-functioning brake light by Officer Michael Slager. As Scott attempted to flee on foot nonviolently (for fear of being arrested on a warrant for delinquent child support), Officer Slager fatally shot Mr. Scott. Only when a video of the incident was released to the media which contradicted the information provided by Officer Slager in his police report, was Officer Slager charged with murder. Slager’s range of punishment for this murder will not include the death penalty because Scott was not a first class citizen as demonstrated above. Interesting to consider is that had Slager been the victim of homicide at the hands of Mr. Scott that day, Mr. Scott would face the death penalty. My point is that the field should be completely fair and leveled, not skewed by one’s occupation.

Police will be fine with the same legal protections as everyone else in a nation where all citizens are to be equal.

You should instead be concerned with the victims of police violence and misconduct while holding these rogue police officers accountable.

Anonymous said...

My letter to Governor Abbott:

Dear Governor Abbott,

Please feel free to use Lee's letter in the most appropriate manner you see fit. I'm assuming this will probably coincide with a bowel movement of some sort. After studying the local and federal statistics regarding interactions and shootings between police officers and citizens as compared to recent incidents it is not hard to understand your decision to help protect our police officers.

Mr. Lee's own desire to have Officer Slager killed, even before a trial has been held, demonstrates he holds a clear and present conflict of interest if not the the color of hatred for police as you suggest in your proposal.

If using Mr. Lee's letter for your own personal hygiene I would suggest rubbing the paper together briskly until it becomes soft as tissue paper. Probably better to shred it though and use in the kitty litter or to line the bottom of a bird cage. In any case, defecation management seems suitable for such drivel.

Citizens will be fine if they would simply follow the law, stop resisting, and stop trying to kill our police officers.

Keep up the fine work, Governor. Roll on

Anonymous said...

I wood pay good muney four a hug from Juge Pat.


Murray Newman said...

Anon 4:14 a.m.,

I think Lee is pretty clear that he wishes no deaths were occurring -- either of officers or at the hands of officers. Your call for his letter to be used as toilet paper doesn't lend much credibility to your counter-argument.

Anonymous said...

Are plumbers and electricians getting murdered solely for their profession?

Anonymous said...

The crux of "Lee's" argument is "(Officer) Slager’s range of punishment for this murder will not include the death penalty"

I'm not so sure that it's "pretty clear." He seems disappointed that the officer cannot be put to death.

Lee said...

359 - I am very disappointed that Officer Slager and Walker Scott would face different punishments for the same crime.

414 - Consider that Governor Abbott is ignorant of the fact that his proposal is a major violation of the basic separation of powers doctrine that we all learned about in grade school. Your job is not to propose or write any laws as that this the job of the legislative branch but only to administer the current laws that are already on the books.


I also remind you that according to the international rules of conflict targets that are off limits includes churches, schools, shopping malls, grocery stores and civilian targets. Targets that are more acceptable are the police stations, and state or military targets (White house, FBI Hoover Building) because they have weapons and the ability to fight back. There are always 2 fighter jets flying over the Whitehouse and armed law enforcement or military personnel ready to go. I would consider by this logic that the murder of a civilian is far worse than that of a police officer because the civilian does not have the same means of defense that law enforcement or government does. When one violently attacks law enforcement they at least have weapons, assume the occupation knowing the risks, and have the chance to defend themselves.

Murray, Thanks for understanding that all violence is equally repugnant regardless of whom the victim is.

Anonymous said...

If Governor Abbott really wants to help police officers, he will publicly announce to the cities of Houston and Dallas that neither he nor the legislature will sign off on any legislation to reduce earned pension benefits, essentially holding cities responsible for their contracted promises. Otherwise, this talk of hate crime legislation is just as crazy as past legislation on the topic, the answer is not to create more penalties but to more vigorously demand existing laws be enforced and violations punished.

Anonymous said...

OH...Officer Slager was CONVICTED of murder??? I must have missed that part...

Anonymous said...

I see that all of the charges against all of the officers in the Freddie Gray incident have been dropped.

Millions of dollars wasted.

Police officers who did nothing trying to get their lives back.

And that's what you all are calling..."justice" these days???