Rene Fomby

Author, Lawyer, Winemaker...

Injustice as an art form

By way of full disclosure, I am writing this entry frustrated, angry, and just a little bit drunk. The first two I will explain in a moment, the last is the direct product of the first two.

As a lawyer, you acclimate quickly to the notion that most judges are ill prepared for their profession. The irony is, the higher up you go in the judging business, as a rule, the less time they spend smelling their own armpits. Figuratively speaking, that is. Or maybe not. Federal judges are tough as nails, but those nails are as straight as anything found in nature. Then we have Judge John Mischtian. Bell County Court at Law 2.

I’ll have to admit, he’s an entertaining fellow. Love his annual vaudeville performances as, I believe, one of the “East Bell County Boys”. Unfortunately, what works in the art of vaudeville is a world away from what works in the world of law. Or maybe several universes away.

So, today I had a routine Special Hearing on the suppression of evidence in a DWI case. The key issue was the fact that the cop in the case, an Officer Taylor of the Temple Police Department, demanded that a nurse release to him the results of a HIPAA-protected blood draw, in clear violation of state and federal law. Prosecutor Lazott agreed that the disclosure was inadmissible under Texas Rules of Evidence. I argued that it was also inadmissible under the general rule that you cannot admit evidence obtained illegally. And the cop agreed that he did not have the legal authority to demand that the nurse release the results of the blood test. Nevertheless, despite the fact that both the State and Defense agreed that the evidence was inadmissible and should be suppressed, Mischtian overruled my motion to suppress.

Then we had the HGN evidence. HGN, to those of you who have real lives, is Horizontal Gaze Nystagmus, a test where a cop shines a flashlight in your eyes and declares that you are legally intoxicated. For a long list of reasons I will not address in this post, if a cop tries to pull this b*llsh*t on you some day, politely decline. It’s just a way for them to use pseudoscience to convince a naive jury that you’re drunk. In the present case, my client was involved in an accident where his body was flung some 30 feet out of his truck. Imagine that impact. He was then transported by ambulance to Scott & White’s flagship hospital, where he was treated for life-threatening injuries in the ER, and moved to what Officer Taylor described on the record as a “Trauma Unit”. Taylor then entered the Trauma Unit and began to interrogate my client, who was obviously on a continuous morphine drip for pain suppression. Taylor asked him if he remembered being ejected from his truck during the accident, a collision that caused the roof of my client’s truck to be compressed to within “four inches of the front seat”, according to Taylor’s report. My client, again in severe trauma and under a constant morphine drip, answered that he did not remember. Taylor then asked the two key questions in the Field Sobriety Tests pantheon: “Are you suffering from a head trauma” and “Are you under the influence of any drugs”. My client, suffering severe trauma and under the influence of a constant morphine drip, answered “no”. Taylor, despite having previously violated federal law by demanding the release of my client’s HIPPA-protected healthcare information, made no attempt to ask the medical personnel on site whether my client had suffered head injuries or was on medication that would invalidate the HGN tests. After all, why would a cop want to invalidate a collar? Our society has placed no consequences on illegal police behavior. In fact, can you identify any other profession where an employee can kill a customer in cold blood and still remain on active duty?

Nevertheless, despite even Taylor’s own admission that he failed to follow the NHTSA standards for performing the HGN test, and despite the clear evidence that my client could not lawfully be administered that test, given the fact that he was drugged to the gills with morphine by virtue of his medical treatment, Mischtian refused to suppress that evidence.

Folks complain about Williamson County justice, just to our south, but I will submit to you that at the very least, WC judges follow some admittedly crazy variation of the Law. But in Bell County, as is common with so many small Texas counties, the Constitution has become more of a political slogan than a real limitation on the oppression of a governmental class.

John Kelso, Rest in Peace

So sad to hear that John Kelso finally left us, after so many struggles with cancer. He has been an Austin favorite since my senior year at McCallum High, and even though he was born (to his great disgust) in Oklahoma and raised in Maine, he exemplified more than maybe anyone else what it meant to be an Austinite. Perhaps one of my favorite columns he wrote came after the French began complaining about the ash cloud that swept across the planet after the Mt. St. Helens eruption. While other Americans were leading boycotts against baguettes and renaming French Fries to Freedom Fries, Kelso proposed loading up giant military cargo planes with table salt and dumping it all across France, killing all the snails and thereby starving the French people into submission. ‘Course, when I say it, it doesn’t sound funny… You will be missed, John.

Preventing Childbirth-Related Deaths in Haiti

My good friend Dr. Janice Smith just returned from an investigational trip to Haiti, the first step in leading a medical mission to that beleaguered country, and what she discovered was startling. Haiti leads the world in maternal and infant deaths during and incident to childbirth, and most of those deaths can be traced directly to the practice of cutting the umbilical cord with an unsterilized machete. Vaccination against tetanus and other common infectious diseases is almost nonexistent there, and infection sets in very quickly. By simply providing caregivers with two pieces of string and a sterile razor blade, these senseless deaths can be cut in half, if not more. It reminds me of the 1973 book Small is Beautiful, a collection of essays by E.F. Schumacher, which explored how very small improvements can have a tremendous and lasting impact on third world economies. A great lesson for all of us to remember, the impact of even the smallest courtesy on the lives of those around us…

More on this as we move forward on the mission trip.

Constitutional crisis

I prefer to stay out of the thick of things in terms of political intrigue. If you offer an opinion on how things will be or should be, all too often you are wrong. But as a student of constitutional law – a REAL student of constitutional law – I am greatly disturbed by the noise that is wafting from the White House these days. POTUS has declared that he has an unlimited capacity to pardon himself and his family for offences against the United States. And that declaration raises Constitutional issues that cannot be ignored. The real problem, as the greatest Constitutional scholar of our times has often declared, is that our Constitution is painfully detailed about issues that matter very little to the Republic, and painfully obtuse as to issues that define the very essence of our democracy.

If a President can pardon himself or those closest to him with no oversight or consequence, what could stop him or his family from committing a flagrant and unprosecutable murder, or, in this case, possible treason against his country? In a nation that more than any other defines the boundaries of human conduct by a reliance on the rule of law, how can we accept the concept that one man (or woman) is above the law. That one man is a law unto himself. We fought the Revolution to throw off the cloak of imperial obeisance, and it should be clear that our Founding Fathers never contemplated that the President of this Republic would ever place himself beyond the rules that bind us all together. And yet this President has clearly indicated a willingness to do just that.

We can all hope that this is all just blustering. Just posturing. That this nation will never have to face the heart rending possibility that our Commander in Chief has elevated himself to Caesar. This is an issue that our own Constitution in all its flaws has never foreseen, has never anticipated. We can all only hope that the long tradition that held President Clinton in check, that allowed General Haig to forestall President Nixon’s access to the nuclear launch codes, serves us once again. And, regardless of where you or any other person stands in this great political stalemate, we can all only hope that truth and justice continues to reign over our great country.

God didn’t make us to see the color of our skins… we did that on our own.

From CBS News, a story about a two year old white girl who stood firm when a cashier suggested she might not want to purchase a doll that portrayed a black doctor:

http://www.cbsnews.com/news/2-year-old-girl-defends-choice-of-doll-to-cashier-shes-a-doctor-like-im-a-doctor/

 

 

When the city’s lawyers hide evidence in police shootings, justice is denied

I get the point about Black Lives Matter, as well as the point about Blue Lives Matter. But when it comes to police shootings, lawyers for cities and towns seem to forget their duty to turn over ALL the evidence in a case. Adam and I are prosecuting a case from Houston where a constable shot a young black man to death for an alleged toll tag violation, and Houston and our exalted Texas Attorney General refuse to release a copy of the police car video. Meanwhile they have gone public with claims that our victim had in his possession a ‘bandana’ and a ‘straight razor’, trying to suggest that he was a gang member. (He was a barber college student.) It is this kind of hypocrisy that leads to public distrust of the system, and the solution is more transparency, not less. See this:

 

 

 

My God is a God of love…

I know that these people number in the dozens, not the millions, but they help maintain the fiction that Christianity – my chosen religion – is a religion of hatred and intolerance. My big question is, why do we not hear calls from the political right demanding that the President denounce these people as “Radical Christian Extremists”, and call on the larger Christian community to close their churches and disperse their followers? Should we now close our borders to all Christians?

NYTimes: Pastors Praise Anti-Gay Massacre in Orlando, Prompting Outrage

http://www.nytimes.com/2016/06/28/us/pastors-praise-anti-gay-massacre-in-orlando-prompting-outrage.html?partner=msft_msn

Think DNA is a perfect tool for catching criminals? Think again…

This chilling new article in The Atlantic explains how imperfect DNA testing really is. Once again, the police and prosecutors are touting imperfect science to “prove” defendants are guilty. Maybe we should just go back to the witch trials and call it a day… throw defendants into the lake and hang’em if they float.swab

http://www.theatlantic.com/magazine/archive/2016/06/a-reasonable-doubt/480747/

Law Still Treats Rape as a Property Crime Against Men

Only two of 100 rapists spend time in prison, 68% of sexual assaults aren’t reported, and those victims who do go to trial are often traumatized by the experience. But while the criminal justice system has failed women, victims are increasingly turning to the civil courts for some kind of remedy.

Philosophers on everything that’s unethical about US sexual assault law

 

Front Door, Goreme, Turkey

From the underground cities of Goreme, Turkey

From the underground cities of Goreme, Turkey. The rock was slid into place to seal the entrance to the city from invaders.

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