Thursday, August 07, 2008

Corpus Christi Caller Times: If we cant drive our vehicles on the beach we are effectually restricted from that portion regardless of assurances, hand

Corpus Christi Caller Times: If we cant drive our vehicles on the beach we are effectually restricted from that portion regardless of assurances, handshakes or blueprints

When the powers that be were anticipating a "Privatized Beach".......
Posted on August 7, 2008 at 06:51:41 AM by Jaime Kenedeno

When the "powers that be" were anticipating a "Privatized Beach" the Beach in front of the seawall was at least 50 yds wide (probably 75 yds) anyhow it was wider than it has ever been in the last 20 years.

One other anticipatory preparation was the traffic sign which directed traffic towards the jetty only (no right turn or left turn only????). In a nutshell the maintenance on that portion of the right of way (at that time) was designed to create a spacious widened version of beach real estate adjacent to and extended from the seawall flamboyantly in anticipation of a demanding elite influx of human flesh. The maintenance has been once again downgraded so the beach front will recede and disallow vehicle passage as exemplified and used as argument to once again blockade our access to our beach. If we cant drive our vehicles on the beach we are effectually restricted from that portion regardless of assurances, handshakes or blueprints. Mc Cutchon just cut his own throat. He must be seeing dollar signs or has vested interests.

Councilman Michael McCutchon wants to pass the issue to voters, but needs at least four of his fellow council members to agree.

Tuesday, June 10, 2008

the Legislature could have decided separate findings regarding the child=s best interests and alternative arrangements were not necessary because they

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No. 03-0266


In The Matter of J.P., A Juvenile


On Petition for Review from the

Court of Appeals for the Second District of Texas


Argued February 4, 2004

Justice Brister delivered the opinion of the Court, in which Chief Justice Phillips, Justice Hecht, Justice Owen, Justice O=Neill, Justice Jefferson, Justice Schneider and Justice Smith joined.

Justice Schneider filed a concurring opinion, in which Justice O=Neill and Justice Jefferson joined.

Justice Wainwright concurred in the judgment only.

The trial court modified a prior juvenile order to commit J.P., an eleven-year-old boy, to the Texas Youth Commission (TYC). He appeals, arguing the trial court failed to make certain findings during modification that the statute expressly requires only in original commitment orders. We granted the petition because of a conflict in the courts of appeals on this question. We hold the plain words of the statute do not require the explicit findings J.P. demands.

At his original adjudication hearing,[1] J.P. was found to have engaged in delinquent conduct by (1) hitting and kicking a teacher at his school, (2) threatening to murder the teacher, an assistant principal, and some of his fellow students, and (3) threatening his mother a week later with a knife. Had he been an adult, these offenses could have constituted, respectively, a third-degree felony,[2] a Class A misdemeanor,[3] and a second-degree felony.[4]

J.P. was placed on one year=s probation in the custody of his parents. Four days later, sheriff=s deputies were called to his home and found him breaking out windows with a broom handle. He was taken into custody, and shortly thereafter agreed (with the approval of his appointed attorney) to an order modifying his probation to provide for placement at the Hood County Regional Detention Center. After a number of incidents at the detention center, the disposition was again modified on April 22, 2002 to commit J.P. to TYC. He appeals from this last order.

The Legislature provided different rules for different stages of a juvenile proceeding. An adjudication hearing incorporates many of the features of a criminal trial, including the right to a jury trial, the right to remain silent, and the right to exclude evidence inadmissible under the rules governing criminal proceedings.[5] By contrast, at a disposition hearing after adjudication, a juvenile has a right to a jury only in cases of possible transfer to the Texas Department of Criminal Justice, and written reports may be considered even if the author does not testify.[6] Finally, at a hearing to modify disposition, there is no right to a jury trial at all.[7]

The Legislature also provided for differences in disposition orders depending on the stage of the proceedings. In all such orders, the court must state in writing its reasons for the order and furnish a copy to the child.[8] But if an initial disposition order places a child in TYC or on probation outside the home, it must expressly state that (1) removal from the home is in the child's best interests, (2) reasonable efforts were made to avoid removal, and (3) care and supervision the child needs to meet the conditions of probation cannot be provided at home.[9] By contrast, none of these additional findings is expressly required in a modification order, which instead can provide for commitment to TYC if (1) the original disposition was for conduct constituting a felony or multiple misdemeanors, and (2) the court finds the child violated a reasonable and lawful order of the court.[10]

J.P. first argues that the modification order had to include written findings regarding best interests, reasonable efforts, and quality of in-home care. In drafting the Family Code (and other statutes as well), the Legislature often requires judges to Afind@ certain matters before taking certain actions,[11] but only occasionally requires those findings to be made in writing.[12] Here, the Legislature required several written findings in original orders, but did not require them in modified orders. We cannot interpret the statute to require otherwise without rewriting it.

Alternatively, J.P. argues that before making the modification order, the trial court had to make the same findings as would have been required for an original order, even if they did not have to be written into the modification order. He also argues the modification order here was improper because there was insufficient evidence to support these necessary but implied findings.[13]

As noted, the plain language of the Family Code requires written findings regarding best interests, reasonable efforts, and quality of in-home care in an original disposition order, but not in a modified one. We must give effect to this difference in plain language unless doing so violates other provisions of the statute.[14] Several appellate courts, including the court of appeals in this case, have held it does not.[15]

But the Eighth Court of Appeals has held to the contrary, requiring trial courts to make each of these findings and state them expressly in modification orders committing a juvenile to TYC.[16] The court appeared to have two main concerns about applying the statute as written.

First, the court feared children could be removed from their homes and placed in TYC for probation infractions without considering their best interests or alternative arrangements.[17] But it must be kept in mind that no original disposition of any kind could have been made unless the best interests of the child indicated protection or rehabilitation was needed.[18] Further, the act of modification itself indicates an in-home alternative has been tried, and undoubtedly most trial courts would find these efforts reasonable because they ordered them. Finally, by finding a violation of probation, a court necessarily finds that in-home supervision was insufficient to ensure there were no such violations. Given the circumstances in which modified orders of commitment arise, the Legislature could have decided separate findings regarding the child=s best interests and alternative arrangements were not necessary because they were necessarily included.

Second, the court feared that effective appellate review of commitment orders based on minor infractions would be precluded if the order simply stated that the child Aviolated a reasonable and lawful order of the court.@[19] But the statute does not require commitment to TYC for every probation violation; it provides only that a trial court=s disposition Amay be modified@ in such circumstances.[20] This is a discretionary decision, and subject to review for abuse of that discretion. If a trial court arbitrarily removes a child from home for a trivial infraction, nothing in the statute prohibits the appellate judges of Texas from doing something about it.

Finally, neither of these concerns addresses what the Juvenile Justice Code itself indicates is its primary concern B the safety of the public:

51.01. Purpose and Interpretation

This title shall be construed to effectuate the following public purposes:

(1) to provide for the protection of the public and public safety;

(2) consistent with the protection of the public and public safety:

(A) to promote the concept of punishment for criminal acts;

(B) to remove, where appropriate, the taint of criminality from children committing certain unlawful acts; and

(C) to provide treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child=s conduct;

(3) to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions;

(4) to protect the welfare of the community and to control the commission of unlawful acts by children;

(5) to achieve the foregoing purposes in a family environment whenever possible, separating the child from the child=s parents only when necessary for the child=s welfare or in the interest of public safety and when a child is removed from the child's family, to give the child the care that should be provided by parents; and

(6) to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.[21]

In other parts of the Family Code, the best interests of children are often paramount; but in the Juvenile Justice Code, the best interests of children who engage in serious and repeated delinquent conduct are superseded to the extent they conflict with public safety.

Commitment to TYC by modification order is proper only if a juvenile originally committed a felony or multiple misdemeanors, and subsequently violated one or more conditions of probation.[22] In such circumstances, the statute allows a trial court to decline third and fourth chances to a juvenile who has abused a second one.

Here, the evidence at the modification hearing showed that J.P. assaulted detention center officers, created a flood by plugging his toilet, assaulted other residents, and on several occasions threatened to commit suicide. On the other hand, there was evidence the death of his father shortly after he entered the detention center contributed to the deterioration of his behavior, and a grandfather from New Hampshire indicated willingness to raise J.P. there. The trial judge=s comments indicate careful consideration of J.P.=s circumstances, of possible alternatives to commitment, and of potential dangers each option provided. Given J.P.=s original adjudication of delinquency for serious offenses (which he does not contest), the previous commitment to the Hood County Detention Center for further delinquent conduct (which he does not contest), and the many offenses at the Center (which he excuses but does not contest), we hold the trial court did not abuse its discretion in modifying the previous disposition orders to commit J.P. to TYC.

The plain language of the Juvenile Justice Code requires different findings in initial orders committing a juvenile to TYC than in modified orders that do so. For the reasons stated above, applying the statute as written compels neither arbitrary commitment nor meaningless review. Accordingly, we affirm the judgment of the court of appeals.


Scott Brister



[1] See Tex. Fam. Code ' 54.03.

[2] Tex. Penal Code art. 22.01(b)(1).

[3] Id. art. 22.07(b).

[4] Id. art. 22.02(b).

[5] See Tex. Fam. Code ' 54.03(b).

[6] Id. ' 54.04(a), (b).

[7] Id. ' 54.05(c).

[8] Id. '' 54.04(f), 54.05(i).

[9] Specifically, Family Code section 54.04(i)states:

If the court places the child on probation outside the child=s home or commits the child to the [TYC], the court:

(1) shall include in its order its determination that:

(A) it is in the child=s best interests to be placed outside the child=s home;

(B) reasonable efforts were made to prevent or eliminate the need for the child=s removal from the home and to make it possible for the child to return to the child=s home; and

(C) the child, in the child=s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. . . .

Original disposition orders also must include (where applicable) any terms of probation and whether a deadly weapon was used. Id. ' 54.04(f), (g).

[10]Id. ' 54.05(f), (k).

[11] See, e.g., id. ' 6.602(d) (providing court may overrule objection to mediation in divorce proceedings only if it finds a preponderance of the evidence does not support the objection); ' 55.32(a) (providing juvenile court must hold hearing if it finds evidence exists supporting child=s unfitness to proceed due to mental illness or retardation); ' 153.004(d)(1) (providing court may allow access to child by parent with recent history of family violence only if it finds access will not endanger child).

[12] See, e.g., id. ' 6.711(a) (requiring written findings when requested after divorce judgment dividing parties= estates); ' 7.006(b) (providing court may quote agreement incident to divorce or incorporate it by reference in final order if agreement is just and right); ' 33.003(h) (requiring written findings and conclusions in parental notification cases); ' 54.02(h) (requiring juvenile court to state reasons in order waiving jurisdiction in favor of criminal district court); ' 153.072 (requiring written finding of child=s best interest before limiting rights of parent appointed as conservator).

[13] J.P. raises no constitutional challenge to the order of proceedings here. Although amicus counsel argues that federal statutes require inclusion of the section 54.04(d) findings in the statement of reasons required by section 54.05(i), the only statutes cited in briefs or oral argument relate to removal of a child for parental abuse or neglect, not for delinquent acts of the children themselves, see 42 U.S.C. '' 671, 675. We are given no explanation or authority as to why they apply here.

[14] See Tex. Gov=t Code '' 311.023, 311.025; McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).

[15] ___ S.W.3d ___; In re D.R.A., 47 S.W.3d 813, 814-15 (Tex. App.CFort Worth 2001, no pet.); In re M.A.L., 995 S.W.2d 322, 324 (Tex. App.CWaco 1999, no pet.); In re H.G., 993 S.W.2d 211, 214 (Tex. App.CSan Antonio 1999, no pet.).

[16] In re L.R., 67 S.W.3d 332, 337 (Tex. App.CEl Paso 2001, no pet.).

[17] Id. at 336.

[18] See Tex. Fam. Code ' 54.04(c).

[19] In re L.R., 67 S.W.3d at 337; see In re H.G., 993 S.W.2d at 215 (Rickhoff, J., concurring).

[20] See Tex. Fam. Code ' 54.05(f) (emphasis added).

[21] Id. ' 51.01.

[22] Id. ' 54.05(f), (k).

Friday, April 11, 2008

Nueces De La Parra: Shamsie “Strong Arms” Solomon Ortiz & Rene Rodriguez

Nueces De La Parra: Shamsie “Strong Arms” Solomon Ortiz & Rene Rodriguez:

Saturday, December 17, 2005

Shamsie “Strong Arms” Solomon Ortiz & Rene Rodriguez

Shamsie “Strong Arms” Solomon Ortiz & Rene Rodriguez
Jaime Kenedeno - 11:40pm Oct 10, 2005 Central
Shamsie “Strong Arms” Solomon Ortiz & Rene Rodriguez
Democrats are not behind Shamsie! There is only certain clique of Democrats who want to “Strong Arm” Shamsie back into the Nueces Constitutional County Court! This “clique” (or group of “Cronies”) I will refer to as the “Shamsie Clique” or “Shamsie Cronies”. It is my understanding, Shamsie’s support stems from the Office of Congressman Solomon Ortiz and certain other witnesses to the “Capelo Deal”. Attorney Shamsie (along with George Finley {Nueces County Hospital District}) witnessed the transaction between Attorney & State Representative Jaime Capelo and Attorney Rene Rodriguez.. Capelo represented Citgo at the time and Rodriguez was in dispute with Corpus Christi Police Officers Association! (Laredo National Bank VP) Roland Guerra had to break the bad news to Capelo and then he was thrown to the dogs! Why was Shamsie never deposed? Why not Finley (deposed)? Tony “The Two Fer” was mad at Rodriguez and Capelo! What about Hugo Berlanga grooming Capelo for the JOB? I seem to remember some kind of criminal charges filed on Hugo Berlanga and his backroom politics! Now Capelo and Berlanga are both better off! They are both successful lobbyists in Austin! Then we go to the Medical Legislation! Who was it good for? Was “The Two Fer” Pro or Con with the proposition authored by Joe Nixon? The Doctor’s Malpractice insurance increased! Who made out on this deal?
Now back to the “Shamsie Cronies” it is rumored and warnings have been issued! The media is being “Strong Armed” financially! Elite and Power Brokers (Powercrats) within the Democratic Party are frowning on the media who promote any other option for the Democratic primary and certainly to support an independent will bring the wrath of both Parties! They are in essence saying, “we are going to use our Incumbent resources to discourage (SQUEEZE) clients from working with your business’ if you (the Media) speak negatively of Shamsie! Even if it is
Tejano2K - 02:50pm Oct 11, 2005 Central (#1 of 10)
As we know;There's always two sides to every story,hope somebody will tell it because anyone can write just about anything about anybody.Sould we be rooting for 'Shamsie'?
GRusling - 08:16am Oct 22, 2005 Central (#2 of 10) If voting could really change things, it would be illegal...
This is all political doubletalk. It appears meaningless because it is...
Jaime Kenedeno - 06:17pm Oct 22, 2005 Central (#3 of 10)
GR: "This is all political doubletalk. It appears meaningless because it is..."
Explain? Verify your statement Please?
GRusling - 10:49pm Oct 23, 2005 Central (#4 of 10) If voting could really change things, it would be illegal...
Politicians are all crooks, endit.
The "pot" is calling the "kettle" BLACK again!
All concerned are up to their eyeballs in gutter-slime...
Jaime Kenedeno - 11:52pm Oct 23, 2005 Central (#5 of 10)
GR: I agree with you. Do you have any suggestions for a Candidate with integrity for Nueces County Judge. Suggestions for a nomination?
GRusling - 06:40am Oct 24, 2005 Central (#6 of 10) If voting could really change things, it would be illegal...
I don't live in Nueces County, thankfully...
Jaime Kenedeno - 07:04am Oct 24, 2005 Central (#7 of 10)
Then Theoretically speaking. Who do you beleive to be the man or woman for the JOB?
GRusling - 08:30am Oct 26, 2005 Central (#8 of 10) If voting could really change things, it would be illegal...
I have no idea. Nueces County politics are a peripheral issue for me. I rarely comment except when it's "pure" politics with little or no substance...
John DeLaGarza - 07:06pm Nov 17, 2005 Central (#9 of 10)
I dont know much about the Democrat Party locally or otherwise or the Republican Party for that matter, but I definately do not like Shamsie. IMO there is definately something Shady about him.
There has got to be a better Democrat for the job than him, either way I'll vote against him whenever he is up for reelection.
John DeLaGarza - 09:22pm Dec 8, 2005 Central (#10 of 10)
Good news Shamsie isnt going to run for reelection.


Jaime Kenedeño said...

Darrell Keach, 33, Nueces County Record Star, General Manager

How long in current position and how long in newspapers: I’ve been actively involved in the business since 1994. I’ve grown up in the business and I’m fourth generation, starting with my great-grandfather who owned the Floresville Chronicle Journal and later bought The Record Star in 1926. Since then my grandfather Carroll Keach was publisher and my father Sam Fore Keach is the current publisher.

Why did you get into newspapering: I didn’t seem to have much choice I guess, being fourth generation.

What is your most rewarding part of the business: Helping a new or existing business and the community we serve succeed, while at the same time making our own business succeed.

What is the worst part of running a newspaper: Failing to succeed.

What are your goals for the future: Continue to grow our circulation and reach without sacrificing quality.


Jaime Kenedeño said...

Sam Keach, a Robstown historian whose family has owned the Record Star newspaper there since 1925, wrote a column in August describing chatter about fast-action, high-stakes poker around the clock in the 1940s at a dance hall/watering hole named Rob's Place in Robstown.

He was not able to document Texas Hold 'Em having its beginnings there, but the column conjured a response from Gigi Starnes, 63, born in Falfurrias, now living in San Antonio. Her father was an occasional gambler who owned Clancy's Cafe in Falfurrias, a popular restaurant with area gamblers.

Starnes' response to Keach's column: "I well remember whisperings of those high stakes card games. There was a gambler called Buttermilk (because that's all he would drink while playing) who once gave me a $10 bill, which he said he'd won playing Held 'em in Rob's. I must have been around 5 or 6, and remember wondering who Rob was, now I think it must have been Robstown."

Historical raids in Corpus Christi at places such as the famed Dragon Grill verify the existence of gambling for decades. Linn Keys (Doc) Mason, of Pennsylvania, arrived in Corpus Christi around 1926. Eight years later he opened the Dragon Grill on Corpus Christi Beach, according to Nueces County Historical Commission information.

It was a plush, swanky nightclub, a classic blending of art deco, excellent food, good music, dancing and gambling that thrived for years.

An early morning blaze destroyed the building on Jan. 15, 1944, according to Caller-Times archives. Within 18 months, a new Dragon Grill was opened at the Elks Club building, built in 1928 at the corner of Water and Starr streets.

Considerable money changed hands nightly in the third-floor Jaina Room. Entrance was achieved only by way of a special elevator. Blackjack, poker, dice games, slot machines and roulette were favorite games. A system of warning lights and buzzers were used if danger threatened from below.

In August 1953, however, one industrious policeman, Raymond Lamp'l, joined with FBI agents who had been dating women known to Mason, and all posed as customers. They watched as patrons threw down their chips, and when it was Lamp'l's turn he threw down his badge.

Charges of keeping and exhibiting a gaming table were brought against Mason and one of his employees. Though the grand jury returned a no-bill, that was the end of Mason's gambling career in Corpus Christi and the end of big-time gambling at the Dragon Grill.

Contact Mike Baird at 886-3774 _or,1641,CCCT_811_3545047,00.html

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Thursday, March 20, 2008

describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and

I would Love to see this Attorneys Appeal in Hell........Maybe the judge will be asleep? Or better yet, maybe that will be the "Strategy"!?!

Paid to sleep on the JOB! Dang, now that is a TWIST!

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Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).

Copyright (c) 1996 University of Notre Dame; Stephen B. Bright

The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.

Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.

Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.

Let's examine the needs and how individuals and institutions may respond to them.

Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.

This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.

Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.

As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.

As was pointed out recently by Steven Duke and Richard St. John:

Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.

There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2

But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.

Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.

Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.

I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.

As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.

But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.

The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.

In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.

And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.

Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.

As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.

Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10

Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.

It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.

One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.

Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14

But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.

This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.

There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22

Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24

Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26

Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.

Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.

And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29

In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.

And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.

Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.

The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.

If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.

Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39

The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.

Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?

Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.

Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.

But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.

I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.

But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.

Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.

Those are some of the challenges. What can we do about them?

It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.

Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.

A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.

Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.

Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.

Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.

But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.

But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.

I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.

It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.

You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46

Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47

I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.

We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.

A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.

There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.

Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.

We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.

I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.

Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.

We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.

And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.

And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.

I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:

I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .

Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51

That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.

I hope to see you in the courts.

. Charles Reich, Opposing the System (1995).

. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.

. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).

. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").

. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").

. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).

. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.

. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.

. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.

. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).

. Smith v. Bennett, 365 U.S. 708, 712 (1961).

. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).

. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).

. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.

. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).

. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").

. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.

. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.

. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.

. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.

. 372 U.S. 335 (1963).

. Anthony Lewis, Gideon's Trumpet 205 (1964).

. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).

. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.

. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.

. See Schlup v. Delo, 115 S. Ct. 851 (1995).

. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).

. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).

. Murray v. Giarratano, 492 U.S. 1 (1989).

. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.

. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).

. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.

. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).

. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).

. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).

. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).

. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.

. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.

. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).

. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.

. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.

. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).

. Id. at 267.

. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).

. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.

. Amadeo v. Zant, 486 U.S. 214 (1988).

. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).

. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).


Thursday, January 17, 2008

EL First and Foremost Homero Villarreal is My Friend.

Like Big John Mc Carthy says, "Let's Get It On"

If one disputes any claim by all means welcome to the show and put it (your dispute or objection) in writing. We run from nobody.

"Welcome back my friends to the show that never ends
We're so glad you could attend, come inside, come inside
There behind a glass stands a real blade of grass
Be careful as you pass,.move along, move along

Come inside, the show's about to start
Guaranteed to blow your head apart
Rest assured you'll get your money's worth
The greatest show in Heaven, Hell or Earth
You've got to see the show, it's a dynamo
You've got to see the show, it's rock and roll, oh

Sunday, January 13, 2008

Nueces Democrats: "These are not Democrat issues. These are not Republican issues." These are Nueces County issues" Somebody's Knockin on the Door."

Nueces Democrats: "These are not Democrat issues. These are not Republican issues." These are Nueces County issues" Somebody's Knockin on the Door."

The only way we will be a factor is by interacting & through Natural Discussion.

Everybody welcome, the more the merrier. themericanprince, onamission, Homero, Nuts101, Mr Mikal Watts, Mr Filemon Vela, TJ Henry, Mr Attorney General come on guys why dont we air this thing out like Brett Favre? Just another walk in the park.

It's Too Late To Apologize. Unlike yous guys, We Dont Work for the President

Dear Lencho and the rest of the Political Crooks and Government Vendors / Contractors, Thank Dora for this COLD BLAST from the past.Somebody better start standing up and helping out. Heaven forbid should we start saying your names and your secrets. I am frickin pissed off at all of you. The day of reckoning or shall we say "wreckoning" is at hand. Speak up or get chewed up and spit out.

The best way to kick this party off is with some hard hitting; hard hitting on the one's who are not used to getting hit.

Lencho Rendon is the whipping boy he is the first one who gets hit.

If Great State of Texas can prosecute a little person for $45 then surely it should look into the allegations with the bridge to nowhere and the brown bag, back porch window treatments not to forget all that double standard malarchy.

Asian Human Trafficking or an Asian Employment Service? It all depends on who it is, how much lettuce they have, and who they got dirt on.

Why do we hand Lencho Rendon San Patricio Shores along our port

Why does the Brownsville Navigation District do the same?

And Solomon Grande, why do we keep on pulling the lever?

And Solly Junior why should we give him another chance? (He dont keep his promises).

The Nueces County Jail / Federal Prisoner Removal was a Political Smear and a total Sham directed at Larry Olivarez and Mikal Watts at the expense of Nueces County Taxpayers.

Here are a couple of brain teasers for those of you remain standing in that river (D Nile).

Is Randolph Delay a Republican or a Democrat?

Why did Kenneth and Ping Lee Cohen go to prison?


"I remember Lencho telling me that his ideal dream team (to help BND) would be (lobbyist) Randy DeLay, (Monterrey consult-ant) Esther Rodriguez and 'Madam Ping,'" Lasseigne said.

A Dream Team of Randy Delay Lobbying in Washington, Solomon Sr. nicely positioned on the House Arms Services Committee and his influential "friends" such as Congressman Ike Skelton, the distract and the DELAY side JOB Lobby at the Federal Bureau of Prisons / CCA / Private Prison Profiteering CON. The Daytime JOB is the Defense Contractor Ocean Shipholdings.

Thursday, January 10, 2008

children know when they are not wanted @ it District 32, 33, or 34?

Error to adjudicate child delinquent for truancy

On October 20, 1999, the Dallas Court of Appeal reversed an adjudication for delinquent conduct when the judgment recited that it was based on conduct constituting truancy. Truancy is CINS, not delinquent conduct.

99-4-18. In the Matter of A.S., UNPUBLISHED, No. 05-98-02086, 1999 WL 956308, 1999 Tex.App.Lexis ___ (Tex.App.--Dallas 10/20/99)[Texas Juvenile Law 49 (4th Ed. 1996)].

Facts: The juvenile court adjudicated A.S. a child engaged in delinquent [sic] on a finding of truancy and committed him to the Texas Youth Commission (TYC). In two points of error, A.S. contends the juvenile court erred in its adjudication, in failing to state specific reasons for disposition, and that the evidence is insufficient to support the disposition. We sustain A.S.'s first point of error and reverse and render judgment.

A petition alleged appellant engaged in delinquent conduct by violating a lawful justice court order "under circumstances that would constitute contempt" by failing to "attend school each and every day with no unexcused absences ... in violation of Section 51.03 of the Texas Family Code." The juvenile court informed A.S. that, if the petition was found to be true, the court could place A.S. on probation at home in the custody of a parent or outside the home until his eighteenth birthday or A.S. could be committed to TYC until his twenty-first birthday. A.S. pleaded true, and the court found him to be a child engaged in delinquent conduct. In its adjudication findings, the juvenile court found A.S. committed the offense of "failing to attend school each and every school day with no unexcused absences and by failing to attend each and every class of each day of school[ ] on 12-1-97" and declared A.S. a child engaged in delinquent conduct, as defined by section 51.03 of the family code. After hearing evidence regarding disposition at the initial and subsequent hearings, the juvenile court committed A.S. to TYC.

The juvenile court entered the following findings for purposes of disposition:

1. The child is in need of rehabilitation;

2. The public is in need of protection;

3. The respondent child's best interest will be served by being placed outside the home[;]

4. All reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the home[;]

5. The child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.

The juvenile court then committed A.S. to TYC "for the reasons stated above."

Held: Reversed and rendered.

Opinion Text: In his first point of error, A.S. contends the trial court erred in adjudicating him a child engaged in delinquent conduct. We view the evidence as a whole to determine whether the State met its burden of proof beyond a reasonable doubt. See Tex. Fam.Code Ann. § 54.03(f) (Vernon 1996); C.D.F. v. State, 852 S.W.2d 281, 284 (Tex.App.-Dallas 1993, no writ); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.-Houston [1 st Dist.] 1991, no writ).

Failure to attend school is a misdemeanor offense under the education code and may be prosecuted in a justice court. See Tex. Educ.Code Ann. § 25.094(b) & (f) (Vernon 1996 & Supp.1999). If the justice court finds a juvenile "has engaged in truant conduct and that the conduct is of a recurrent nature," the court may order the juvenile to "attend school without unexcused absences." Tex. Fam.Code Ann. § 54.021(d)(6) (Vernon Supp.1999). If the justice court finds a juvenile has violated its order, the court shall transfer the complaint to the juvenile court which shall conduct a de novo adjudication hearing under section 54.03 of the family code. See Tex. Educ.Code Ann. § 25.094(d) (Vernon 1996). Under section 54.03 of the family code, a juvenile court may find that a juvenile has engaged in delinquent conduct or conduct indicating a need for supervision. See Tex. Fam.Code Ann. § 54.03 (Vernon 1996). The code also provides specifically that truancy is conduct indicating a need for supervision, not delinquent conduct. See id. § 51.03(a)(2)(B) & (b)(2) (Vernon Supp.1999); In the Matter of J.B.S., 696 S.W.2d 223, 225 (Tex.App.-San Antonio 1985, no writ); In the Matter of A.L.H., 517 S.W.2d 652, 653 (Tex.Civ.App.-Houston [1 st Dist.] 1974, no writ). A juvenile adjudicated a truant under section 51.03 of the family code may not be committed to TYC. See Tex. Fam.Code Ann. § 51.02(15)(A) (Vernon Supp.1999), § 54.04(o) (Vernon 1996) (providing that a child who commits truancy under section 51.03(b)(2), which is conduct that cannot be committed by an adult, may not be committed to TYC).

The juvenile court found A.S. committed the offense of failing to attend school with no unexcused absences, that is, truancy, which is not delinquent conduct under section 51.03 of the family code. Thus, there is no evidence to support an adjudication that A.S. is a child engaged in delinquent conduct. The State argues the court's error is a clerical rather than a legal error because the record demonstrates that A.S. pleaded to a charge of contempt that would support the adjudication. The State proposes that we may either correct the error in the factual finding or remand to the trial court for correction by a nunc pro tunc judgment. See, e.g., State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App.1994) (noting "nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry, and for some reason were not entered of record at the proper time"); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (noting "[a]ppellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record"); Tex.R.App. P. 43.2(b). However, the written judgment's finding that A.S. "failed to attend school" is consistent with the record of the plea. Furthermore, at a later disposition hearing, the court stated, "Back on September 22 nd, 1998, [A.S.] plead (sic) true to a count of truancy...." This finding of truancy was a judicial determination. Thus, we conclude the juvenile court's holding that A.S. engaged in delinquent conduct was error. We sustain A.S.'s first point of error. Our disposition of the first point of error makes it unnecessary for us to address A.S.'s second point of error. See Tex.R.App. P. 47.1.

We reverse the juvenile court's "Order of Adjudication and Judgment of Disposition with T.Y.C. Commitment" in all respects and render judgment that A.S. is not a child engaged in delinquent conduct.