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August 6th, 2014:

Remember Ray Jones

PetitionsInvalid

So now that the HERO-haters’ petitions have been rejected by the city for not having enough valid signatures after all of the petition pages that were not compliant with the requirements of the city charter were thrown out, the story shifts to the courthouse. We don’t know exactly what the antis are going to claim but I think it’s fair to assume that they will assert that they city was too broad in its rejections and that at least some of the pages that were tossed should have been accepted. The rejections were for fairly technical reasons – the circulator didn’t sign his or her name, or there was a signature but no printed name, or the circulator was not a registered voter in Houston, and so on. There are many arguments one could make to get more signatures accepted, and if the haters’ legal counsel in their litigation is less incompetent than their counsel during the petition signing process was, they will make as many of them as they can and hope enough of them stick.

I’m not a lawyer and can’t really say what might or might not work, but I do know that the city has been down a road similar to this before, involving someone whose attempt to make it onto a ballot was rejected for narrow technical reasons and who didn’t settle for that answer. I’m thinking about Ray Jones, who was a candidate for District C in 2005, then tried to join the field of what ended up as nine candidates in the special election for At Large #3 in 2007, which was eventually won by Melissa Noriega. Jones, as is often the case with candidates, turned in his ballot application just before the deadline. Unfortunately for him, there was a problem with it, and the city rejected it, along with those of two other candidates. Here’s a report from the Chron about what the problem was.

Under the Texas Public Information Act, I got copies of rejected applications submitted by Ray Jones Jr., Greg Locke and Darryn Call. The city also released the form filed by Roy Morales, who is on the ballot.

Here’s what I found out about the four applications. You can download them here [PDF] and read along:

CALL: He didn’t complete the oath section. Leaving this blank is what city attorneys consider a “fatal” error. It’s the section in which candidates affirmatively swear that they’re submitting “true and correct” applications, and that they comply with all the requirements.

LOCKE: He got the oath part right, but he didn’t fill in his voter-registration number. This, too, is fatal because Article V of the City Charter requires that candidates be “qualified” voters.

[…]

JONES: He also didn’t complete the oath.

Jones got a call from the legal department about the error a few minutes before the deadline, but it was too late for him to submit a new form. He believes the city unfairly excludes candidates. He wrote [PDF] City Secretary Anna Russell and City Attorney Arturo Michel about it, too.

If you look at the forms in question, you see that the “oath” section is basically the part that you fill out and sign in order to get the document notarized. There’s blanks for your name, your county, and the office you’re seeking, then your signature, which is the one part everyone got right. I suppose it’s possible that a novice candidate might miss these places on the form, but you’d think a notary public would know to tell them to fill them in.

In any event, this is by any reasonable measure fairly small potatoes. The document is signed notarized, after all, and the missing information can be found or inferred from other boxes. One could certainly argue that the city might cut them some slack and err on the side of inclusiveness. The city for its part did try to contact Jones and get him to fix his mistake, but they weren’t able to reach him in time for him to do so – remember, he turned in his application on deadline day. After some back and forth in the press and an allegation that the city employee that received his document did not give him correct information about its accuracy, Ray Jones filed suit with the 14th Circuit Court of Appeals to get on the ballot. He got some sympathy from the Chron, but the city held fast. In their response, the city pointed out that his application was “defective on its face”, and they cited precedent in their favor:

The Court of Appeals of Waco held that an application that left blank the spaces of an oath/verification identical to the Jones application was defective and incomplete. The application failed to satisfy the “statutory requirements governing a candidate’s application.” In re Gibson, 960 S.W. 2d 418, 420-421 (Tex. App. – Waco 1998) (original proceeding); contra, Yapor v. McConnell, 597 S.W. 2d 555 (Tex. App. – El Paso 1980) (original proceeding). The court found that an official has the duty to review an application within five days and make a determination as to whether the application complies with all statutory requirements. If the application does not comply with the requirements of the Election Code, the application must be rejected. Tex. Elec. Code § 141.032 (e).

In Gibson, the candidate made the exact same errors as Jones by failing to fill in the blanks of the oath which is required by the Election Code . Tex. Elec. Code § 141.031(4)(K). Like Jones, the candidate in Gibson attempted to blame his omissions on the official that received his application or on the notary. In rejecting Gibson’s argument, the court held that “the completion of a candidate’s application rests primarily on the shoulders of the candidate.” Id. at 421. Statutory requirements are mandatory and the candidate must “ensure that the application strictly complies with state law.” Id. at 421.

The city ultimately prevailed, and an appeal to the Supreme Court also failed. Now again, I’m not a lawyer and I can’t say how the haters’ litigation will go. I don’t know if this case would be relevant to what they will put forth. My job is to remember stuff like this and bring it up at appropriate moments. The point I’m making is that just because these prohibitions may seem nitpicky doesn’t mean you’ll get any relief from a judge. Maybe there’s another precedent out there that would favor the petitioners, I don’t know. We’ll know soon enough how they plan to attack this. In the meantime, I say remember Ray Jones and the example he gave us. The Observer has more.

UPDATE: And the lawsuit has been filed. You can see a copy of it here, but the TL;dr version is that they claim Anna Russell’s is the One True Count, and none of the work done to invalidate individual pages means anything. I guess that’s one way of approaching this. The judge could rule as early as this morning.

Is there any valid evidence of Todd Willingham’s guilt left?

The Washington Post has a long piece examining the connection between the jailhouse snitch whose testimony helped send Cameron Todd Willingham to death row and the prosecutor who has long denied taking any action to influence that testimony.

For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

“Mr. Pierce and I visit on a regular basis concerning your problems,” Jackson wrote to Webb in August 2000, eight years after the trial, when his former witness was threatening to recant. (Jackson misspelled the rancher’s last name.) “We worked for a long time on a number of different levels, including the Governor’s Office, to get you released early in the robbery case. . . . Please understand that I am not indifferent or insensitive to your difficulties.”

Along with Webb’s account, the letters and documents expose a determined, years-long effort by the prosecutor to alter Webb’s conviction, speed his parole, get him clemency and move him from a tough state prison back to his hometown jail. Had such favorable treatment been revealed prior to his execution, Willingham might have had grounds to seek a new trial.

Read the whole thing, it’s well worth your time. I sadly disagree with the suggestion that this revelation will have any effect on public opinion about the death penalty. I think people have long since factored in this possibility in their thinking, and generally conclude it’s an acceptable cost. People have been making the argument about possibly executing the innocent without much traction yet. Maybe the recent ghastly news out of Arizona about horribly botched executions will help move public opinion, I don’t know. I just don’t expect this to do much on that score.

What I think this could do is spark a closer examination of how jailhouse snitches are used, much like the earlier revelations of bad investigative technique have spawned a real review of arson forensics and even a look at some other cases in which discredited methods were used to secure convictions. The cellmate to whom a defendant that is otherwise loudly proclaiming his innocence confesses fully to the crimes with which he is charged is practically a cliche, and often a too-easy convenience for overzealous prosecutors. If some kind of reform of that practice, or at least a heightened sense of skepticism when a jailhouse snitch is employed at trial, comes out of this, then at least some good will have resulted from Willingham’s needless and unjust death.

Actually, there is one more thing that can come of all this. I must have missed it in the WaPo story, but in this Chron story about Willingham’s stepmother and biggest advocate, there’s more to this than just information.

At 71, Eugenia Willingham has spent more than a third of her life trying to prove jurors were wrong when they condemned her stepson, Todd, for murdering his three young children in a deliberately set fire. Her faith in Texas justice fell as court appeals failed, then collapsed as ‑ after the 2004 execution ‑ seemingly well-crafted attempts to posthumously clear her son’s name were thwarted by the state.

Now, the Ardmore, Okla., woman’s hopes again are rising as lawyers for the New York-based Innocence Project target the prosecutor in Todd Willingham’s case in a complaint to the State Bar of Texas. The complaint alleges former Navarro County assistant District Attorney John Jackson arranged for a jailhouse informant to testify against Willingham in return of special consideration in his own case. Then he tried to keep the deal secret from the judge, jurors and the defense attorney, according to the complaint.

If the allegations are found true, Jackson, now in private practice, possibly could be disbarred.

[…]

Innocence Project Co-founder Barry Scheck said Willingham’s execution “would never have gone forward … if John Jackson had played by the rules.”

The complaint is the latest effort by Scheck’s organization to prove Willingham’s innocence.

All of the elements in the WaPo story are contained in the complaint, so do read them both. If Ken Anderson and hopefully Charles Sebesta can be held accountable for their unjust actions, I see no reason why John Jackson can’t be, too. Maybe, just maybe, they’ll serve as examples for others to learn from. Grits and PDiddie have more.

Chron calls for end of pot prohibition

By which they mean that the federal government should repeal its anti-marijuana laws and leave it to the states to regulate.

Zonker

While there are still questions about long-term health effects of marijuana use or the policy implications of decriminalization or legalization, the United States knows all too well the consequences of continuing the war on drugs: millions spent on ineffective law enforcement, drug cartels getting rich and poor people going to jail.

The heavy burden of our national marijuana policies is uniquely borne by the black community. While black kids and white kids statistically use marijuana at equal rates, according to a study last year from the American Civil Liberties Union, black kids are 3.73 times more likely to be arrested for possession.

Here in Harris County, blacks were 44.9 percent of all marijuana possession arrests in 2010 despite being only 18.9 percent of the population. Colorado and Washington already have legalized recreational marijuana, and 18 other states plus the District of Columbia have legal medical marijuana, but it seems like marijuana possession is de facto decriminalized if you just live in the right neighborhood. These startling statistics belie our nation’s promise of equal treatment under the law. It is time for Texas to officially change our own marijuana policies.

The discussion already has begun in the race for Harris County district attorney, where Democratic candidate Kim Ogg has said she would punish low-level marijuana possession with tickets and community service instead of arrests and jail time. By her numbers, more than 12,000 people were charged in Harris County last year with possessing less than 4 ounces of marijuana. These prosecutions left county taxpayers on the hook for $4.4 million. There’s also the social cost of taking people away from their jobs and families and shuttling them through an unforgiving criminal justice system. All this for something that is essentially a bad habit and a vice.

While lauding Ogg’s proposal the Chron expressed skepticism about Devon Anderson’s as-yet-revealed plan to reform marijuana prosecutions and hope that she’ll come around. They note the recent Times editorial that made the same call for “repealing Prohibition”. As far as the health effects of pot smoking and the justification of them for continuing prohibition, Wonkblog has been all over it lately.

It’s unclear what the effect in Texas would be if federal marijuana laws were magically repealed tomorrow. We can debate when the Legislature might take action, but I wouldn’t bet on anything this decade. Wendy Davis supports the legalization of medical marijuana, which is at least a more realistic possibility here, while Greg Abbott typically has nothing to say on the issue. It’s not much of a stretch to say that if repeal happened tomorrow, some states would rush to embrace their newfound freedom while others would cling to the past, maybe even more tightly in some cases. There may be a partisan divide on that, but it’s hard to say. This is of course how things usually go when we “leave it up to the states”, as a thirty-second survey of the landscape on access to health insurance, reproductive rights, and same sex marriage could tell you. I don’t know what states would do what under a no-Prohibition scenario, but I do know that for any individual American their own freedom, as well as their risk of prosecution and incarceration, would be entirely dependent on the luck of where they live. That’s why even though leaving it to the states would almost certainly be an improvement over the status quo in this case, it’s hardly a panacea. Some things need to be true for everyone and not just the ones that won the geographic lottery.

SD04: Creighton defeats Toth

I went to bed before the final wrapup stories were written, but trust me, Rep. Brandon Creighton is now Sen. Brandon Creighton.

Sen. Brandon Creighton

In early returns in the race to succeed Sen. Tommy Williams, state Rep. Brandon Creighton was ahead of his opponent, Rep. Steve Toth,

Creighton, R-Conroe, was outpacing Toth, R-The Woodlands, for the District 4 Senate seat. It had been held by Williams for a decade before he resigned last year to become vice chancellor of federal and state relations for the Texas A&M University System.

Both candidates vying to replace him acknowledged the difficulty in luring voters to the polls for only a single race between two candidates, especially on a weekday in the summer. Creighton said this was the fourth time that a special election was held for a single Senate seat and the first time for a race between two Republican candidates.

[…]

[Creighton] will assume the Senate seat to complete Williams’ unexpired term through 2016.

Here are the vote totals. Creighton, who had led 45-24 after Round One, and he garnered the Chron endorsement for the runoff, was up big in early voting and cruised from there. About two thirds of the vote was cast early, so add that to your database of early voting behavior from this oddball summer special election runoff with a miniscule voter universe. In this case, form held as the candidate with the most initial support and by far the most money won easily. So congratulations to Sen.-elect Brandon Creighton. May you be a better and more constructive Senator than you were a member of the House.