- Associated Press - Tuesday, April 29, 2014

The Dallas Morning News. April 23, 2014.

A case to rattle anyone’s confidence in Texas’ criminal-justice system

Call it the case of the forgotten inmate. Or call it “one of those one-in-a-million deals,” to use the words of a former lawyer for the inmate. Either way, if this one doesn’t rattle confidence in Texas’ criminal justice system, maybe nothing does.

Jerry Hartfield, 57, with an IQ in the 50s, has been an inmate in state prisons for more than three decades, even though there has been no lawful conviction on the books to hold him there. But there he’ll stay for now, after a judge in Matagorda County denied a petition for his immediate release last week.

The string of lapses is all the more outrageous considering the delayed justice for a murder victim, Eunice Job Lowe, 55, of Bay City. A ticket agent at a bus terminal, she was robbed and fatally beaten with a pickaxe in 1976.

Hartfield, 21 at the time, had been working construction nearby and was arrested within days in Wichita, Kan. Investigators got a confession from him that was used to convict and send him to death row - a sentence that might not be possible today, given new restrictions on executing the intellectually disabled.

Hartfield’s lawyers have contested that confession. They used an insanity defense at trial, calling witnesses who described him “as crazy a human being as there ever was.”

The conviction was overturned three years later based on faulty jury selection, and the state unsuccessfully appealed. Now comes the confusion: Gov. Mark White commuted Hartfield’s death sentence to life in 1983, even though the conviction had been overturned.

Hartfield was moved from death row, presumably to await a new trial, but that new trial never came. Absent an execution threat, Hartfield’s lawyers didn’t pursue a retrial, nor did prosecutors. Hartfield, a fifth-grade dropout, didn’t grasp the status of his case until a fellow inmate dug into it in 2006.

With the case revived, Hartfield’s new lawyers won a round last year, when the Texas Court of Criminal Appeals ruled that the life sentence imposed through commutation was invalid.

Hartfield’s appellate lawyer now argues - and who could disagree? - that his right to a speedy trial has been grossly violated, he suffered prolonged incarceration and he should be freed. The district attorney’s contemptible response: Hartfield “failed to proffer any evidence he wanted a speedy trial during this period.” Please. The lapses are nauseating enough without that nonsense.

Different attorneys are now preparing for a new trial, despite skepticism that a fair trial is possible. Key evidence is missing, including the murder weapon, and witnesses have died.

However this embarrassment works out, the long list of failures will outnumber the winners in this case. Swift and sure justice has already lost in spectacular fashion.


Houston Chronicle. April 25, 2014.

Failure to communicate: There are practical reasons to cool things off in Texas’ prisons during the summer

State Sen. John Whitmire’s comments about whether Texas prison inmates should be allowed to live in air-conditioned facilities would seem to suggest that he’s auditioning for a remake of the classic “Cool Hand Luke.” Whitmire would be Captain, the sadistic prison warden obsessed with breaking the likable rebel, Luke Jackson, played by Paul Newman.

“We need to have a grown-up discussion of what’s practical and reasonable and what’s politically acceptable,” said the Houston Democrat, who’s both dean of the Senate and the long-serving chairman of the Senate Criminal Justice Committee. “But I can tell you, the people of Texas don’t want air-conditioned prisons, and there’s a lot of other things on my list above the heat. It’s hot in Texas, and a lot of Texans who are not in prison don’t have air conditioning.”

Maybe what we have is a failure to communicate, but Whitmire’s comments don’t sound like the beginnings of a grown-up discussion. They sound more like political posturing.

Certainly, no one is interested in coddling prisoners, but there are practical reasons to cool things off a bit during the Texas hot summers. For one thing, inmates are just that, inmates. They can’t open a window or go outside to catch a cool breeze. As a new report by the University of Texas School of Law’s Human Rights Clinic concluded, high temperatures inside the state’s prisons are tantamount to cruel and unusual punishment.

At least 14 Texas inmates have died because of exposure to extreme heat since 2007, prison reports and court filings show.

In addition, prisoners aren’t the only ones in the prison system having to live with the stifling heat. Lance Lowry, president of a Huntsville union that represents some of the state’s more than 26,000 correctional officers, told the Chronicle’s Mike Ward that prison employees increasingly fall victim to overheated conditions. He said the heat makes it difficult to hire and retain guards. It’s not hard to see why.

What’s likely to happen - and this would get the Captain (er, Whitmire) off the hook - is that the federal courts will step in and order changes, just as they did when the state resisted reforms in the landmark Ruiz prison rights case four decades ago. A court likely would note that, in addition to the danger of extreme heat on the general prison population, inmates taking heat-sensitive drugs, such as psychotropic medications for mental health patients, are particularly at risk when temperatures soar. Doctors say the drugs can cause dangerous side effects, possibly even death, when patients become overheated.

The prison system’s medical director told the Chronicle that about 25,000 of the state’s 150,000 inmates have mental health issues. Nearly 80 percent of those are taking heat-sensitive drugs, although prison officials say they are closely monitored by doctors.

We know, as does Whitmire, that many Texans expect their prisons to be houses of punishment, not penitentiaries where some rehabilitation might occur. They believe that life in an un-air conditioned facility during a hot Texas summer is merely part of the punishment an inmate should expect. Forget air conditioning; anyone who ends up in prison should be grateful he or she has a mattress to sleep on.

That’s not how a humane society works. Whitmire, who has been a leader over the years on any number of criminal justice issues, needs to take the lead on this issue, as well. Sometimes a public official has to do the right thing, regardless of popular opinion.


Fort Worth Star-Telegram. April 29, 2014.

Red River dispute is old and complex

That some Texas leaders have used the latest chapter in a long-running dispute involving property along the Texas-Oklahoma border as an opportunity to lash out at a “land-grabbing” federal government is predictable.

But as Tommy Henderson, a North Texas rancher with an intimate knowledge of the controversy told the Texas Tribune, “. they don’t truly, totally understand everything that’s happening and what has happened.”

That’s a disappointment but not a surprise, given the dispute’s complex history.

Ninety years ago, the U.S. Supreme Court settled a boundary dispute between Texas and Oklahoma, ruling that Oklahoma controlled all lands north of the Red River’s medial line (roughly the center of the cut river banks), and Texas controlled land below the river’s south bank.

Left to the jurisdiction of the federal government were lands occupying the “gap” between the medial line and the Texas border.

The problem is that the river’s south bank shifts almost daily, leading to obvious legal challenges like the one that cost Henderson 140 acres of his property in 1983, when an Oklahoma judge declared it public land.

The judge in that case determined the river had moved through avulsion, meaning even though the river changed, the border didn’t.

Given the Red River’s “unique situation,” in 2000, the U.S. Congress ratified an agreement that re-set the political border as the vegetation line along the river’s south bank.

And last year, the Bureau of Land Management, the federal agency that oversees public lands, announced it would update its Resource Management Plan in Texas, Oklahoma and Kansas, citing the property lines set by the Oklahoma court to measure its territory, including some 90,000 acres along the Red River.

That’s when local landowners, many of whom have managed and paid taxes on some of that land, started to get anxious anew.

This dispute has confused and frustrated generations of landowners whose livelihoods depend upon their property.

They deserve clarity and meaningful resolution.

But those outcomes probably won’t be provided by a bevy of politicians who see the Red River as an opportunity for campaign red meat.


Austin American-Statesman. April 28, 2014.

Money, political will needed to put America back in space race

A near future of moon colonies and trips to Mars seemed so certain 45 years ago as NASA prepared for the first moon landing in July 1969. But after a dozen American astronauts went to the moon, bunny-hopped about and came home with 840 pounds of rocks, no giant leap for space exploration followed.

Talk of reaching Mars never ended, however, and the talk is central to a proposed bill appropriating $17.6 billion for NASA that the House Science, Space and Technology Committee is scheduled to take up Tuesday. Republican U.S. Rep. Lamar Smith of San Antonio, whose district includes parts of Austin, chairs the committee.

“It is the policy of the United States that the goal of (NASA’s) exploration program shall be to successfully conduct a crewed mission to the surface of Mars,” the bill states. On this point there is, as there has been in congresses past, bipartisan agreement. But on this point there is, as there has been for four decades, bipartisan reluctance to adequately fund such an effort, mostly because there is no national will for it.

The $17.6 billion the bill sets aside for NASA is $1.1 billion less than the agency’s 2010 budget and represents about 0.5 percent of the federal budget, compared with about 4 percent NASA’s budget represented during the Apollo program. Of the $17.6 billion, about $4.1 billion is for future human space exploration, including money for developing a new crew capsule and launch system to boost astronauts out of the rut of low-Earth orbit, where humans have been circling since the Apollo moon missions ended in December 1972.

After the Columbia shuttle disaster in 2003, President George W. Bush channeled a plan pitched by his father a dozen years earlier and proposed returning astronauts to the moon by 2020 as a first step toward Mars. Like so many Mars proposals over the years, though, Bush’s proposed mission was set to launch years in the future and was left for another president and another Congress to pay for.

American space flight has been headed in no certain direction since the last space shuttle flight in July 2011. Americans remain in space aboard the International Space Station. That they rely on the Russians and their Soyuz capsules to get them there is a matter of national embarrassment, but replacing the shuttle with another rocket and crew capsule and ending NASA’s reliance on the Russians lacks the Cold War urgency of beating the Soviets to the moon.

The future of human space flight matters a great deal to Texas. Houston famously is home of the Johnson Space Center, where astronauts are trained and human space missions controlled. While NASA dreams of Mars, private space companies are looking to ferry astronauts to low-Earth orbit. Elon Musk, founder of SpaceX, all but said last week that he will build a launch pad on the Texas coast near Brownsville and hopes to have it operational in two years. SpaceX’s plans give Texas an opportunity to secure a private place in space.

In November, the Congressional Budget Office released a report looking at options for reducing federal spending and noted that if NASA were to focus on space probes rather than human space flight it could save $73 billion over 10 years. Numerous probes over the past 50 years - to the Moon, Mars, Venus, Mercury, Jupiter, Saturn, Titan and beyond - have reminded us it’s not necessary to send astronauts into space to explore the planets.

The NASA budget currently under consideration by Smith’s committee includes money for a promising unmanned mission to Europa, the ice-covered moon of Jupiter considered a prime candidate for harboring life beyond Earth. The goal is to launch by 2021.

Such a move away from human space flight is not going to happen. Nor should it, completely.

But without consistent and adequate funding and the political will to take a flight to Mars beyond the talk of the past several decades - talk that frequently has more to do with the romance of adventure than with persuading taxpayers to pay for it - it’s questionable a mission to Mars will ever leave the realm of science fiction.


Corpus Christi Caller-Times. April 24, 2014.

Again, Rick Perry goes first class at taxpayer expense

Add this to the long your-tax-dollars-at-work list of head-scratchers - a private law firm’s defense of Gov. Rick Perry in a grand jury investigation. Hourly rate: $450. Now, consider all the better uses of Texans’ tax dollars - education, roads, etc. - and ask the inevitable: Why?

Because Perry threatened to veto state funding of the Public Integrity Unit of the Travis County District Attorney’s Office if DA Rosemary Lehmberg didn’t resign, then made good on the threat when she didn’t. The grand jury is investigating whether Perry’s veto was an abuse of power.

Lehmberg was in a vulnerable position because she was convicted last year of drunken driving and served 45 days in jail. Should she have resigned? We’re on record in an April 17, 2013, editorial before she was sentenced, hinting that she should.

A district attorney convicted of a crime is a bona fide issue. It appeared to put Perry on high moral ground demanding her resignation - as long as all the bottom-feeding political implications are ignored, which we didn’t in that editorial last year. Lehmberg is a Democrat; the Public Integrity Unit, which investigates corruption by Texas public officials, is an irritant to Perry; and he’d appoint her successor.

Lehmberg refused to resign but said she wouldn’t run for re-election. Perry’s response was to veto two years of funding - $7.5 million, using his line-item power. Travis County scrounged up more than $2.4 million but the damage was done. Of 35 staffers, two were laid off and 18 retired or found other jobs.

Was Perry being abusive and coercive? Of course. But only to the standard that normal people using a dictionary would define “abusive” and “coercive.” Many Texans, including many of Perry’s political persuasion, think he abuses his power daily. But the question is whether he abused his power and coerced Lehmberg to a degree that would meet a legal standard for a prosecutable offense. Smart money says he didn’t. A coercive, abusive governor probably would have to do a lot more than Perry did to Lehmberg and to the Public Integrity Unit to commit prosecutable abuse of power.

But there’s enough on Perry to drag him through the embarrassing process. And that’s his doing. At least Perry wasn’t to blame for the fire at the governor’s mansion that prolonged his stay in a $10,000-a-month rental, which, like his expensive legal help, also was taxpayer-funded.

It’d be one thing to pay the salary we’re already paying a state government staff attorney to divert his or her (cheaper if it’s a her) time from other matters to attend to the governor’s needs. We didn’t get a response back from Perry’s staff on why he didn’t do this instead of paying a private firm $450 an hour.

Jokes aside about how much lawyers cost, a state bar survey from 2011, the most recent year available, put the median hourly rate at $238. Experience is more expensive, deservedly. The median for a lawyer over age 65 was $272. Being in Austin also comes at a premium. The hourly median there was $252.

Different categories of law also make a difference. The most expensive on the list was antitrust law at $426 an hour. Government/administrative, which we thought was applicable because Perry is the state government’s top elected administrator, was $217 an hour - $21 less than the median. If this case counts as criminal defense, well, there’s the best bargain so far - $196 an hour.

So, if we were to compare Perry’s choice of lawyer to, say, a ride to the Travis County Courthouse (a short walk from the governor’s mansion)? Maybe not a Bentley, probably a Mercedes S-class. Perry’s taxpayer-supported expensive tastes are a matter of record.

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