"We Close at 5"

Meet Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals. She recently got into some trouble, but not enough trouble, for the way she handled the case of a death row inmate. She was disciplined for her misconduct with a PUBLIC WARNING which sounds a lot like "just don't do it again. Ok?"

What did she do? She let an inmate die when he had a meritorious claim for a stay of execution.

She fought the "PUBLIC WARNING" discipline all the way to the Texas Supreme Court which denied relief. Surprisingly, she wasn't removed from office. I guess it will be for the voters to decide if she should stay because the mechanism to remove a bad judge just didn't work in this instance.

On September 25, 2007 at any time after 6:00 P.M, convicted murderer Michael Wayne Richard was scheduled to be strapped to a gurney and injected with lethal drugs. As is common in cases where an inmate faces imminent execution, defense lawyers make an extraordinary effort to block the execution through the state and federal courts. An inmate can request a stay from the United States Supreme Court but that court will not grant one if the inmate fails to apply first in the state's highest court, in Richard's case the Texas Court of Criminal Appeals.

Here's what happened on September 25. The United States Supreme Court granted certiorari in the case of Baze v. Rees which posed a challenge to the lethal injection protocol used in Kentucky, the same protocol used in Texas and most other states. Keller and her colleagues learned about the Supreme Court's order sometime during the day on September 25. In the disciplinary proceedings, Keller admitted that she was aware of Baze. She was also aware of the scheduled execution of Michael Wayne Richard.

The Court of Criminal Appeals has an "execution day" procedure under which any request for a last minute stay is presented to a duty judge who is in charge of receiving all filings and coordinating with fellow judges to vote on stay requests. Sharon Keller was not the duty judge on September 25.

Richard's attorneys worked all day to prepare filings in the Texas Court of Criminal Appeals seeking a stay based on the Supreme Court's order in Baze. According to the attorneys, they ran into computer problems which delayed getting the paperwork to the court before the clerk's office closed at 5 P.M. They said they needed an extra 20 minutes and also offered to fax their papers to the court.

The clerk who answered the call was not familiar with the execution day procedure. Instead of presenting the attorneys' request to the duty judge who later testified that she would have granted time to get the paperwork in and would have voted to grant the stay, the clerk called Keller at home who instructed him to tell the attorneys "We close at 5." The clerk later testified that he did not alert other judges, including the duty judge who had stayed in the building after hours because of the pending execution, about what Keller had told him. He did not want to go behind her back.

Since the attorneys were foreclosed from presenting their stay application to the Texas Court of Criminal Appeals, the United States Supreme Court at about 8 P.M. denied Richard's application to that court. A few minutes later, the State of Texas executed Richard.

The following day, the Texas judges met in a conference and discussed how surprised they were that Richard had not filed for a stay in light of Baze. Instead of telling her colleagues what she had done, Keller remained silent during this discussion.

Two days later, the Supreme Court did grant a stay based on Baze to another Texas inmate scheduled for execution on September 27. And for the next seven months, there was a de facto moratorium on executions throughout the United States while Baze was under review. Ultimately, the court decided that the execution protocols were constitutional. But Keller deserves no credit on that score because she had no right to sabotage Richard's meritorious application for a stay on September 25 regardless of the eventual outcome in the Supreme Court.

Richard's family sued Keller for causing his death. Predictably, that suit was dismissed after Keller argued that she was entitled to judicial immunity, a doctrine which insulates judges from suits for damages despite how outrageous their conduct might be. Doctrines like judicial immunity make the work of judicial watchdog agencies charged with removing judges who are corrupt or incompetent that much more important considering the absence of any private remedy for judicial wrongdoing.

Keller certainly would have been within her rights to vote to deny a stay to Richard, as bad a choice as that might have been, but she was not entitled to shut out her colleagues' right to vote on that question nor did she have the right to play God and single-handedly deprive Richard of his right to have his case reviewed at all in any court.

I thought maybe Keller had a bad day and acted thoughtlessly. I combed the record for an excuse, anything that would make this outrageous situation understandable. But during the disciplinary hearing, she made no claim of mitigating circumstances. On the contrary, Keller testified that she wouldn't change a single thing she did on September 25. She also chided the defense lawyers, saying that she shouldn't have to keep her court open for lawyers who can't get their work done on time. In this instance she was talking about lawyers who had a few hours, not days, to construct legal arguments based on the Supreme Court's order in Baze issued at 9:30 that morning. And what to think about Keller's sense of proportion where, in her view, the remedy for lawyers being late is to kill their client rather than impose a sanction, say $500.


If we were talking about one of the brightest stars in the legal firmament and the conduct was wholly out of character, it might be understandable if the disciplinary authority selected a form of discipline short of removal. But Keller's testimony is the best evidence for not cutting slack. She single-handedly subverted the system of justice without the slightest expression of reflection or regret. Ironically, she rants that she was denied due process during the disciplinary proceedings. Denial of due process is a claim Michael Wayne Richard might understand even better than she does.

Where to Smoke?

Concerned about students who smoke off-campus and leave cigarette butts and other trash behind, one high school principal came up with a simple solution. Let the students smoke in a designated area on campus. A story about the principal's proposal made the front page of the student newspaper. The verbatim text follows.

Board to Act On Smoking After Survey of Problem

The Board of Education will vote on the proposition that would allow students to smoke on school property at the December Board meeting. Their final decision will be based on student, teacher and parent questionnaires.

Parents will be asked if they feel smoking on the designated area of the school property, the area by the cannons, should be allowed and also if their child in school does smoke. The teachers' questionnaire will be similar but will include a question asking what percentage of the students they feel do smoke. The students will be asked if they are regular smokers, an occasional smoker or a non-smoker. They will also be asked their feelings about smoking on campus.

Students have always stood across the street and smoked. This year, however, the police requested that the "point" be used by the students to smoke and congregate.

The police have received numerous complaints from the citizens. Each morning about 200 students congregate on their property leaving behind cigarette butts, soda cans, paper, and other trash.

At the November board meeting, Mr. Evergetis [the principal] stated, "From 75 per cent to 90 per cent of the students smoke." The estimate was based on my observations of smokers at school dances. Anyone who lights a cigarette and smokes it, whether it's only one a month or more –we consider him a smoker," stated Mr. Evergetis.

From the Buccaneer, Red Bank High School (N.J.) November 27, 1968.

Now I don't know about you, but I thought the principal missed an opportunity to teach students that littering is antisocial behavior and that drinking sodas--especially in the morning--is not a habit to get into.

A Message from TSA

Following the December 25 failed terrorist attempt on Northwest Airlines flight 253 from Amsterdam to Detroit, the TSA has conducted a comprehensive review of its procedures and finds them wholly inadequate to protect the traveling public. We will implement new measures effective January 1, 2010 on international flights to and from the United States. Here they are:

1. When you arrive at the airport you are to strip, place your clothing in baggage, and check it in at the curb or airline counter.

2. Carry-ons are no longer permitted.

3. You shall present yourself at the security check point with your passport and boarding pass. No other property is allowed.

4. At the security check point, you will be orally, anally and depending on gender, vaginally probed.

5. Canines trained to sniff out explosives and marijuana will conduct a secondary inspection. If you are allergic to dogs, be sure to ask that you be sniffed by a hypoallergenic dog.

6. Once on the aircraft, you will be bound to your seat in chains and injected with a coma-inducing sedative that should be effective for the duration of the flight. If you regain consciousness during flight, you must alert a flight attendant to be reinjected with sedative. To do this, push the red button nearest your middle finger. Failure to inform a flight attendant that you are conscious is a federal offense punishable by imprisonment for not more than two years. 18 U.S.C. Section 2255.

7. For your convenience, you will be equipped with a colostomy bag and catheter. Return them to the flight attendant before leaving the aircraft.

8. You are urged to get dressed at the baggage carousel to avoid conflicts with local police outside the terminal building.

At TSA, we recognize that you could fly the equivalent mileage of ten roundtrips to Pluto and never encounter a terrorist incident but tell that to the passengers on 9/11 who are 100% dead. Some will say the new measures are too extreme but in our zeal to protect the traveling public, we stop at nothing.

Wishing you and yours a safe flight.

Your TSA Administrator

Crossing the River

Before heading to the southern tip of South America, I decided to take a ferry across the river from Buenos Aires to Colonia, Uruguay. If you end up making this crossing yourself, I hope you find this guide helpful because this excursion may turn out more challenging than you ever imagined.

You don´t have to worry about navigating the river because the boat´s pilot takes care of that. The challenge here is navigating what in Spanish they call "los tramites" that is the formalities you have to go through before they let you on the boat. None of these is spelled out in writing. They have been handed down as oral tradition from one generation to the next. And this leaves you at a disadvantage. But don't sweat it. I've already blazed the way for you. Hopefully, this guide will minimize the trauma of the tramites for you.

1. Getting centered. Prepare yourself mentally before going to the estacion fluvial to get on the boat. The best way to accomplish this depends on what works for you. You may call on a therapist (there are thousands of them in Buenos Aires and a few must be hungry and willing to see you on short notice). You may seek religious guidance or achieve the requisite state of tranquillity through meditation or yoga. Finally, you may choose to numb out on the herb or drug of your choice.

Caution-- Use of alcohol is not advised. It will only magnify your feelings of helplessness and desperation. This may send you into a rage causing injury to yourself or others. You may even end up in jail.

2. Upon entering the station, you will be in a waiting area/cafeteria/coffee bar. Look to your right. You will see a sign that says "Venta de Boletos" Follow it. You will have to wait to see one of the three agents sitting at desks in front of computer terminals. When it´s your turn, you will choose the boat you want and the class of service. There are fast boats and slow boats both with first class and tourist sections. Best choice is tourist class in a fast boat since that saves you some money and shaves two hours off the trip. The agent will ask for your passport and enter you into the system. She will quote you a fare and remind you to set your watch to Uruguay time so as to avoid confusion about when you need to show up for the return passage. She will tell you to go to the other side of the waiting area/cafeteria/coffee bar to buy your ticket. You will feel a bit uneasy at this point because you don´t have a single piece of paper to show that you ever talked to her. But don´t worry.

3. When you arrive at the place you were directed, you're in a large hall with 10 windows each serving a distinct function. You naturally gravitate toward the line in front of the window labeled "caja" because that's where you expect to pay and get your ticket. After you wait in line there, you will learn that you made a bad choice. Now you must go to the window on the far right where you will stand in another line. At that window, you will be asked for your passport and the agent will tell you what the fare is. This window seems to serve no purpose other than to check the work of the first agent you met. The amount quoted at this window will be different from what you were told before. You leave this window paperless and follow the agent's finger pointed in the direction of the caja.

4. After standing in line at the caja, it's now your turn. You are excited that the ordeal is almost over. The caja guy asks for your passport and enters you into the computer. A third amount for the fare is quoted, this one higher than the others. When you protest, you get quoted a fare that beats all previous quotes. A printer cranks out your tickets together with a thick wad of extraneous material marked VOID in huge block letters-- all of which is handed to you. You still have more to do. Now you must go to check-in, whether or not you have baggage.

5. Wait in line at the check-in window. Then you hand the agent your pile of paper and your passport which you have now presented for the fourth time. Flipping through the pages, the agent can´t find an entry stamp for mine. Before he says a word, I explain this is a replacement passport and that the one I entered Argentina with was stolen. He wants to see a police report. I produce my Certificado de Denuncia given to me by the police when I reported the theft. He calls over another agent who wants to read it too. Everyone loves a crime story. Then I get a boarding pass and proceed to immigration control where the whole business about the passport and the Denuncia is gone over again with two immigration officials. Finally, they stamp my passport attesting to my departure from Argentina.

Return from Uruguay

Arriving at the station with ample time to board the boat back to Buenos Aires, I see a very long line out the door extending into the huge parking area. Dutifully, I get in it. As the seasons change and the lines in my face deepen, the queue creeps ever so slowly toward the door. I start searching for possible alternatives. Then I remember that I already have a boarding pass for the return and why not just go straight to immigration with that? I leave the line and go there but I'm told they need a stamp and I must go back in the trauma line to get it. Now I´ve lost my place and have to start over. When I make it to the front of the line, I find out that this line is only for the 9 PM crossing. Since I´m booked for 8:30, I should be at the other dock way down on the end about a football field away. I run down there to find out my boat has already sailed.

Back to the first terminal, I explain what happened to a boat company guy. He says I shouldn´t wait in line again but instead go directly to the window on the end to get instant boarding on the 9 PM boat. I get to that window where a smaller line has formed pressed against the wall trying to maintain its integrity against the flow of the larger line of people with bags, backpacks and baby strollers. As I wait in the little line for a family of six to have their papers processed, an American exchange student showed up saying that he stood in the wrong line too and had missed the 8:30 boat. The agent processes our papers at the same time and mixes them up. We think we sort them out until I get to immigration where I discover that the sorting was incomplete. Finally, this all gets straightened out and I get on the boat.

NOTE TO FAMILY TRAVELERS: It is best to appoint an archivist to maintain everyone´s papers together in one place.

In case you fear losing your centeredness before you return to Buenos Aires, take the main road to the end of the old town section of Colonia at the river´s edge where you will run into an artisan/musician/juggler/poet/native american of Incan roots who talks about the goddess Pachamama. He will give you a pamphlet of his poetry gratis, share his philosophy and offer you a joint if he likes you. Of course, this only came to me as rumor and I wouldn´t know anything about it from personal experience.

May the spirit of Pachamama be with you.

Passport Theft in Argentina

I was supposed to leave Buenos Aires but something happened that left me stuck to it like fly paper. The guides tell us that the thieves of Buenos Aires are among the best in the world. Travelers are exhorted to exercise caution. I, a sophisticated traveler, didn't worry too much about that advice since only people who fail to pay attention will get their things ripped off and it never had happened to me.

Between 14:45:30 and 14:45:45 ART, my backpack was stolen at the corner of Av. Corrientes and Rodriguez Peña. The dastardly deed happened because I turned my attention away for a tiny moment to watch a presidential candidate telling a gaggle of reporters about his plan to develop alternative energy sources and eliminate hunger. All of his handouts were green. He had an honest face.

Inside the backpack were round trip airline tickets to Ushuaia, a digital camera, glasses, two travel guides and, of course, my passport. I made an immediate report to the police explaining how that the backpack disappeared while I was sitting at a table outside a cafe. Told the cop that I didn´t think the candidate was guilty. He was way to progressive to be a thief. The cop said we shouldn't jump to conclusions. At the end of the interview, he wrote up a Certificado de Denuncia detailing what happened and what was taken. After I proofed it for accuracy and noticed that he didn't mention the loss of my passport, he revised it and delivered it to me, signed, sealed and suitable for framing. I had to take it to the US consulate for a replacement passport. That´s happening now.

For a while, I was upset about the loss but found a silver lining in the disaster. Now I´ll have less stuff to drag around.

At the consulate, they told me that Bush´s daughter had her purse snatched a while back from a restaurant table. And she had secret service protection. Seems it's true that the thieves in this town are the best.

To avoid snafus over the passport reissuance, I had gone online to do my due diligence before going to the consulate. The website said I might be asked questions about things citizens are expected to know. Reading this, I worried that I could get quizzed about baseball. That was sure to do me in. This is everything I know about baseball:

1. The 880 is a bitch to drive when the A´s are playing at the Coliseum.
2. Baseball is associated with beer, hotdogs and steroids.
3. Babe Ruth, Hank Aaron and Mickey Mantle were these baseball dudes who did some really cool shit.
4. Barry Bonds broke the record for the most career home runs. Why this is a big deal, I don't know. Seems you´d want to know more like how long was his career relative to the other guy whose record he beat. Did he face more challenging playing conditions? Was Bonds using steroids? How about the other guy? Should this matter?

I hoped I wouldn't be asked baseball questions.

With the new passport in hand, the schedule is to head down to Tierra del Fuego. Expect to be there for 8 days. The land of fire, penguins and glaciers.

The Miniature Earth

When we talk about the demographics of our world, we use numbers in the millions or billions. It's hard to get your head around them. Watch this video. It solves that problem.

Bad First Amendment Decision

Don't make a silent, one second Nazi salute to the chair of a public meeting in California, Nevada, Oregon, Idaho, Washington, Arizona, Montana, Alaska, Hawaii, Guam or the Commonwealth of the Northern Mariana Islands because, if you do, public officials who don't like you or your message may eject you from the meeting, put you in handcuffs and haul you off to jail, says a panel of the Ninth Circuit Court of Appeals today in a case I have been litigating for the past seven years.

It doesn't matter that almost nobody saw the salute and the meeting droned on without a pause before an offended city council member (and then I and co-counsel, Kate Wells) made a federal case out of it. We thought we were on solid ground since our client, Robert Norse, didn't disrupt the Santa Cruz City Council meeting he was removed from and we had video to prove it.

We also thought the law was on our side. First Amendment law can be murky at times but until now nothing has been clearer than the principle that government cannot suppress an idea because it doesn't like the speaker or the message. And previous Ninth Circuit decisions did not allow expulsions from public meetings without a disruption.

After reading the contorted reasoning of the majority, take a look at the sensible dissent. See Norse v. City of Santa Cruz, filed November 3, 2009 here: http://www.ca9.uscourts.gov/opinions/

[update] On March 12, 2010, the Ninth Circuit ordered review of this case by an en banc panel. On December 15, 2010, the en banc panel voted 11-0 to reverse the decision of the district court and remand the case for trial. For a link to the court's decision, go here: http://www.firstamendmentcenter.org/news.aspx?id=23703

Here's the video of the incident submitted into evidence.