Off the Kuff: Legal matters Archives

Impeach Jay Bybee

The only thing more revolting than the just-declassified torture memos is the realization that one of their authors is now a federal judge with lifetime tenure. I have to believe that if we knew then what we know now, this despicable excuse for a human being would not be polluting the bench. But since now we do know, I say impeach Jay Bybee.

04/19/09 | permalink | comments [1]

Johnny Sutton resigns

As is the norm when a new President is inaugurated, US Attorney Johnny Sutton of the Western Judicial District of Texas has resigned his position.

Sutton's resignation was voluntary, [spokeswoman Shana] Jones said, and his future plans were not immediately disclosed. He was not available for comment.

U.S. Rep. Lamar Smith, R-San Antonio, the ranking Republican on the House Judiciary Committee, said Sutton "did a good job overall as U.S. attorney."

Appointed to the office by President George W. Bush in 2001, Sutton followed a time-worn practice of stepping down to allow a new president to nominate a replacement.

[...]

The resignation leaves a vacancy in the Western District of Texas, which includes San Antonio, Waco, Del Rio, Austin and El Paso.

There are also U.S. attorney vacancies in the Southern District, which includes Laredo and Houston, and the Northern District, which includes Dallas.

Texas's two U.S. senators and congressional Democrats will now begin vetting candidates for the positions.

The delegation will offer candidates to Obama, whose final nominees will need Senate confirmation.

Lawyers who have expressed interest in Sutton's post include Juanita C. Hernández with the Securities and Exchange Commission; Mike McCrum, a former federal prosecutor; San Antonio City Attorney Michael Bernard; and Travis County Attorney David Escamilla.

Also interested are: Austin lawyer Scott Hendler; Robert Pittman, a U.S. magistrate judge in Austin; and John Murphy, a Western District federal prosecutor.

The only name on that list with which I'm familiar is David Escamilla; if anyone knows anything about these folks, please leave a comment. As with the vacancy in Houston, I hope and expect that Democratic applicants be given priority. Assuming that Sen. Cornymandias doesn't try to change the rules, of course.

04/12/09 | permalink | comments [1]

The next US Attorney in Houston

Now that we finally have an Attorney General, we also have a lot of people who would like to work for him.

The U.S. attorney wannabes who confirmed for the Houston Chronicle that they are interested are Harris County District Judge Marc Carter, Galveston County District Judge Susan Criss, lawyer and ex-prosecutor Philip Hilder, Assistant U.S. Attorney Cedric Joubert, Assistant U.S. Attorney Ken Magidson, lawyer and ex-prosecutor Ricky Raven, lawyer and ex-prosecutor Eric Reed, lawyer Larry Veselka and lawyer and ex-prosecutor Susan Strawn.

U.S. Rep. Lloyd Doggett, D-Austin, is collecting applications. His office confirmed that Assistant U.S. Attorney Mark White III and Cameron County District Attorney Armando Villalobos have expressed interest in the job.

Some others whose names are being discussed have pulled themselves off or seem equivocal.

Brownsville lawyer Benigno "Trey" Martinez said he is out of the race since he decided not to uproot his family. Ex-Houston Police Chief Clarence Bradford said he was encouraged to seek the position but probably won't.

The U.S. Southern District of Texas, headquartered in Houston, covers 43 counties and runs down the coast from Galveston to Brownsville and as far west as Laredo. The Houston-based U.S. attorney is one of four top federal prosecutors in Texas.

Those four prosecutors are Tim Johnson of the Southern District, who was an interim appointment, Johnny Sutton of the West District in San Antonio, James T. Jacks of the North District in the Metroplex, and Rebecca Gregory of the East District in Beaumont. I don't know what the normal procedure is here for US Attorneys when there's a new President, especially one of a different party, but I would assume at least one more of these offices will open up. Not to be too crassly political about it, but given the thinness of the Democrats' bench for statewide office, these would be plum positions for someone with higher ambitions.

Most of those seeking the job are Democrats, though Magidson just finished filling a Republican term as Harris County district attorney. White's father was the former Democratic Texas governor. Hilder and Veselka were active in President Barack Obama's campaign.

And Judge Marc Carter is a Republican as well. I'm happy for him that he's interested in the job, but with all due respect, he can get in line behind the Democratic hopefuls.

02/05/09 | permalink | comments [1]

Supreme Court declines to hear TDP's appeal in voting machine suit

No surprise.

The U.S. Supreme Court refused Monday to revive the Texas Democratic Party's lawsuit complaining that eSlate voting machines widely used in the state don't properly record straight-party votes.

The court declined without comment to hear the case. Democrats had sued Texas and lost in lower-level federal courts.

[...]

Attorneys for the party argued that the voting machines, which are used in about 100 of the state's 254 counties, are prone to undercounting votes in general elections if someone casts a straight-ticket ballot but then marks an individual candidate's name, as if for emphasis. They said because the equipment doesn't record votes the same as other machines, use of them is a violation of the U.S. Constitution.

The Texas Secretary of State's Office has said that if a voter chooses a straight-ticket option first, but then goes through and pushes buttons for individual candidates on eSlate, those candidates are deselected and a vote for them won't be cast. If a voter chooses individual candidates first, then decides to pick the straight-ticket box, all of that party's candidates are selected.

All I can say is that my experience with the eSlate machine matches the SOS description of its behavior, and that I thought it was sufficiently obvious what was happening as to meet a reasonable standard for such things. There's certainly room for the interface to be improved, and we won't get into the issue of printed receipts, which I still think would be a fine idea, but I never bought the TDP's argument in this one. A statement from TDP Chair Boyd Ritchie is beneath the fold.

01/13/09 | permalink | comments [0]

Utah AG wants to sue BCS

I suppose this was just a matter of time.

Utah's attorney general is investigating the Bowl Championship Series for a possible violation of federal antitrust laws after an undefeated Utes team was left out of the national title game for the second time in five years.

Attorney General Mark Shurtleff contends the BCS unfairly puts schools like Utah, which is a member of a conference without an automatic bid to the lucrative bowl games, at a competitive and financial disadvantage.

"We've established that from the very first day, from the very first kickoff in the college season, more than half of the schools are put on an unlevel playing field," Shurtleff said Tuesday. "They will never be allowed to play for a national championship."

I guess the question I have is if we've known it all along, why wait till now? Maybe President-elect Obama will follow through on his wish to do something about it. Who knows, it might even make him competitive in Utah in 2012.

01/08/09 | permalink | comments [2]

From the Department of Bad Ideas

I don't think this will end well.

Convicted last year of intoxication manslaughter for the death of her boyfriend, the 21-year-old daughter of a state district judge is suing the truck driver she ran into during a drunken driving crash.

Elizabeth Shelton, the daughter of juvenile judge Pat Shelton, is accusing truck driver Lance Bennett of negligence in the Oct. 23, 2007, wreck that killed her boyfriend Matthew McNiece.

Shelton had a blood alcohol concentration more than three times the legal limit, two tests showed. She was sentenced to eight years' probation and had to serve four months in jail.

Shelton, along with her family and the family of the boyfriend who was killed, are suing for $20,000 for the destruction of the Lexus SUV she was driving and an undetermined amount for mental anguish, pain and suffering.

Sometimes it's just better to put these things behind you and move on. That's all I've got to say.

12/19/08 | permalink | comments [0]

The Third Court soap opera

Just keeps getting weirder.

A 3rd Court of Appeals justice is accusing Chief Justice Ken Law of refusing to file her dissent in a politically charged case involving two associates of former U.S. House Majority Leader Tom DeLay.

Justice Jan Patterson, a Democrat, is asking the Texas Supreme Court to intervene. She claims that Law, a Republican who's up for re-election, blocked the filing of her dissent to last week's ruling on whether fellow Justice Alan Waldrop, also a Republican, should step aside in the money-laundering case involving DeLay's associates.

[...]

Patterson's filing with the Texas Supreme Court late Friday afternoon revealed a few more details about the infighting among justices at the 3rd Court, which has four Republicans and two Democrats.

On Sept. 25, three days after [Travis DA Ronnie] Earle filed his allegations, Waldrop told his colleagues he would not step aside.

According to her filing, Patterson said she twice requested responses from the defendants regarding the recusal motion and Law refused to obtain a response and instructed the clerk not to seek one.

Patterson then informed her colleagues that she would file a dissent to the ruling on Waldrop's staying in the case. She wrote that Law instructed the court clerk not to file her dissent.

Keith Hampton, a Texas Criminal Defense Lawyers Association vice president and longtime observer of the Texas appellate courts, said he knows of nowhere in Texas law or court rules where the right to file a dissent is discussed.

However, Hampton said that dissenting opinions are important to developing a full record and registering all ideas and thoughts on legal issues. He said it is rare for appeals judges to be denied a chance to dissent.

"I cannot see how the other judges can prevent an elected judge from dissenting," he said. "Dissent in the appellate courts is extremely valuable to the development of jurisprudence."

Like I said, weird. And Texans for Public Justice has joined in the fun as well. BOR has more.

10/15/08 | permalink | comments [0]

Tort reform for me, but not for thee

I just don't know whether to laugh or cry when I see a headline like Doctors: Lawsuits help guarantee drug safety.

Top doctors who run one of the most influential U.S. medical journals are giving the U.S. Supreme Court some unsolicited legal advice about a major case.

Lawsuits can serve as "a vital deterrent" and protect consumers if drug companies do not disclose risks to the U.S. Food and Drug Administration before it approves medicines for use, the editors of the New England Journal of Medicine said in a friend-of-the-court brief. The FDA "is in no position" to guarantee drug safety, the brief said.

Yeah, we all know how much doctors love lawsuits. At least, as long as it's someone else getting sued. Sheesh.

08/23/08 | permalink | comments [0]

"Hiding in the bushes" might have been a sign this was not a good thing to do

It's clear that this guy is a creep. It's somewhat less clear that he's a criminal.

From the perspective of park rangers, Phu V. Nguyen was obviously violating the state's improper photography statute when he was arrested at Hippie Hollow nudist beach in Austin last weekend.

The Harris County man hid himself behind thick vegetation, was photographing two topless women with a long telephoto lens and ran when they spotted him, rangers said.

But some criminal defense lawyers say the case raises complex legal questions because the women were at a public nudist beach where no laws would prohibit photographing those clothed or wearing swimsuits.

"The trick with these laws is balancing First Amendment rights versus privacy rights," said Kathy Bergin, who teaches constitutional law at South Texas College of Law. "Courts are studying where that line is."

Kyle Lowe, Nguyen's lawyer, said his client likely isn't interested in testing the law's constitutionality and he could advise him to work out a plea-bargain deal with the Travis County District Attorney's office.

[...]

Patrick McCann, a Houston criminal defense lawyer and recent past president of the Harris County Criminal Lawyers Association, said "The issue becomes whether you can have an expectation of privacy when you are swimming nude at a public place."

Bergin said courts are wrestling with such issues in part because cameras erected by employers and governments, cell phones and the Internet have made people aware that they could be filmed in public places.

"The concept of privacy is really diminishing. Technology is making privacy harder to come by," she said. "The courts are going to have to stipulate where the lines are going to be drawn between First Amendment concerns and privacy interests."

I'm glad that the guy is likely to take a plea rather than pursue this case to whatever legal end it might reach. I feel pretty comfortable saying that his behavior falls within the scope of the law, and that the intent of the law is within Constitutional bounds, and I'd just as soon leave it that way. But it is a good reminder that the concept of an "expectation of privacy" ain't what it used to be. When I was a kid, I knew I had to watch my step in public because a lot of people knew my family and by extension me, and if they saw me doing something stupid, it would eventually filter back to my parents. Now that I'm an adult, there are entirely different reasons for the same thing. I liked the old way better, but there's no going back.

08/17/08 | permalink | comments [3]

Judge rules Texas' bilingual education is inadequate

I don't know what the practical effects of this are going to be, but it sure sounds like a big deal.

A federal judge's ruling that Texas is not living up to its obligation to properly educate students who struggle with the English language gives hope to many of those children with dismal academic achievement, a civil rights lawyer said Monday.

The state of Texas is not complying with the federal Equal Education Opportunity Act, in that public schools are failing their obligation to overcome language barriers, Senior U.S. District Judge William Wayne Justice said in a 95-page ruling on Friday.

"The failure of secondary (limited English proficient) students under every metric clearly and convincingly demonstrates student failure, and accordingly, the failure of the (English as a Second Language) secondary program in Texas," Justice wrote in the opinion, which reversed his 2007 ruling in the case.

Justice's ruling disappointed Texas Education Agency officials. "We're continuing to study this latest ruling, but it is likely that we will ask the attorney general to appeal it," agency spokeswoman Debbie Ratcliffe said.

Attorneys for Attorney General Greg Abbott also are studying the ruling, "and we are weighing the prospects of an appeal," said Abbott spokesman Tom Kelley.

I don't see any mention in the story as to a remedy, legislative or otherwise, that is being mandated, and I also don't see the name of the lawsuit, so I'm not sure how to find a copy of the ruling. Be that as it may, it seems likely to me that this is something the Lege will have to address in some fashion, along with so many other school-related issues. Whether it's in 2009 or later, I couldn't say. Can anyone help me fill in the gaps here? Thanks.