- Associated Press - Tuesday, January 12, 2016

The Dallas Morning News. Jan. 9, 2016.

Why Abbott’s call for a constitutional convention sets a dangerous precedent

Gov. Greg Abbott’s audacious call Friday to radically reduce the power of the U.S. government is bound to excite Americans who feel Washington has grown too big, too involved and too often out of touch. But Abbott’s call for a constitutional convention could so thoroughly rewrite the relationship between the U.S. government and its citizens that we cannot support it.

Abbott on Friday called on state legislatures to convene a constitutional convention to consider nine sweeping amendments that would eviscerate some of the most fundamental provisions of the Constitution. He would trim the authority of the courts, congress and the presidency.

The people, acting through their state legislatures, would be given the right to overturn any decision by the Supreme Court, or act passed by Congress. They would need merely two-thirds of the states to agree.



That kind of populist power has its appeal, but such a veto runs counter to the wisdom contained in the founding documents Abbott’s meticulous manifesto appears to hold in such high esteem.

Abbott claims to be restoring through these changes the Constitution and the Bill of Rights to their original luster. But the nation’s founding documents have come to be more than merely a limit on what powers the federal government can exercise. They are also powerful buffers between the will of the majority and the rights of individuals, a buffer that after decades of struggle was eventually also understood to protect individuals against state governments.

Who or what would protect Texans’ rights of free speech, religion or political association, for instance, if any decision by the Supreme Court could be overturned by a vote in two-thirds of the statehouses?

Abbott’s proposals are not new, but he should be credited for offering them up in a way that takes them far beyond the political stump speeches where they usually are discussed. Ahead of his speech, his office issued a 70-page treatise, with another 22 pages of notes, arguing a coherent and conservative political philosophy. It merits careful consideration.

But the America he’d ask us to return to is one this country has worked hard to leave behind. His vision is of a nation where agencies like the SEC, the EPA and many others are hobbled. But for all its disappointments, the federal government has too often in our nation’s history emerged as the only force capable of protecting the environment, ensuring the rights of minorities and others, and countering excesses among our biggest corporations.

Abbott’s proposal is worth debating, but he should know too that he’s playing with fire. A constitutional convention, long shot that it is, would add an unprecedented level of instability in this country.

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Fort Worth Star-Telegram. Jan. 8, 2016.

Greg Abbott has better things to do, or should

Gov. Greg Abbott is not the first Texas politician to call for amending the U.S. Constitution, only the latest.

In recent years, former Gov. Rick Perry and members of the Texas Legislature have suggested repealing the personal income tax, ending direct elections for U.S. senators, requiring a balanced federal budget and ending federal oversight of education or healthcare.

As recently as 1973, Texas leaders wanted to amend the Constitution to prevent public schools from reassigning students to achieve racial desegregation.

The theme is always the same: States good. Washington bad. It only takes 38 states to change America.

But the proposals always bog down in the process. In the 1970s, the Democratic idea of affirming equal rights for women stalled at 35 states and never passed. It is very difficult for Congress and 38 states to ever agree.

So calls for amending the Constitution are mostly political drops in a wishing well, and that includes Abbott’s Friday support for a constitutional convention.

Abbott’s purpose should be clear from the Texas Public Policy Foundation teaser promoting how his speech would “spark a national conversation.”

In the same week when Florida Republican Marco Rubio told a Dallas audience he supports a constitutional convention to require term limits and a balanced budget, Abbott one-upped him and burnished his national conservative credentials by endorsing nine amendments, most to weaken federal power and strengthen state authority.

The word sovereignty and the cry “states’ rights!” were invoked in the South’s ugly history to oppose the Civil Rights Act. Abbott invokes the same terms to endorse amendments that would have similar results.

For example, Abbott supports allowing state law to stand unless overturned by the Supreme Court with a seven-vote supermajority. Another idea would allow a two-thirds vote of states to reverse the court.

Other proposals would take Congress out of any decision that doesn’t involve crossing a state line and prohibit any federal rule that overrides state law.

The United States Constitution is not written to allow majority rule by voters, or states. The Constitution is written to protect the rights of all Americans and prevent what President John Adams feared as “the tyranny of the majority.”

Abbott’s far-fetched proposals may launch him into the national conversation as promised, but his time would be better spent on the needs of Texans.

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Austin American-Statesman. Jan. 7, 2016.

How ‘affluenza’ plagues Texas criminal courts

A young Texas man drives into a crowd killing four people while driving under the influence late one night.

Depending on which headlines you read, this could be one of two stories. The first, the story of 16-year-old “affluenza” sufferer Ethan Couch, who is now 18 and currently sitting in a jail cell in Mexico after breaking the terms of his Tarrant County probation for killing four people and injuring nine others in drunken driving crash in 2013. Unless he is charged with additional crimes, the penalty for breaking probation will likely be - at most - four months in jail.

The second case is that of Rashad Owens, the 21-year-old musician who plowed into an Austin crowd during South by Southwest in 2014, killing four and injuring dozens. His penalty? Charged and convicted of capital murder last fall, he was sentenced to life in prison with no possibility of parole.

The cases are a stark display of the extremes that can occur when justice goes awry under the influence of wealth and privilege - or the lack thereof.

Couch’s defense at the time of his trial? That his rich parents had used money to cure his problems rather than old-fashioned parenting and boundary-setting. Why should he be punished for his parents’ terrible decisions? Except, for the fact that the same judge, Jean Boyd, had no problem holding another “poorer” drunken driver accountable, sentencing him to 20 years in a state lockup nine years earlier.

Couch was 16 years old at the time of his trial. And yes, age does make a difference. But Couch had also had a previous run-in with the law involving alcohol, and was caught with beer stolen from Wal-Mart and drugs in his system. Prosecutors in his case recommended the maximum sentence of 20 years after failing to move the case to the adult system.

Instead, Boyd, now retired, sentenced Couch to 10 years of probation and ordered him to undergo intensive therapy at a long-term facility. She bet that parents who had failed to hold Couch accountable the first 16 years of his life would suddenly get on the ball and do the hard work of family therapy and make sure Couch made his probation hearings. Boyd bet wrong: Couch’s mother is now facing charges for abetting his getaway to Puerta Vallarta - and his father was arrested in 2014 on charges of impersonating an officer.

Owens, on the other hand, also had a misdemeanor criminal background. At 21-years-old he was a father of six and working at Little Caesar’s Pizza in Killeen. He was in Austin playing a gig with his brother and was an aspiring music producer. He crashed through street barricades and into the SXSW crowds while fleeing a traffic stop. The police camera showed him weeping and fearful after the accident.

In the video he can be seen wailing: “Sir, all I care about is me not killing nobody,” he cried at one point from the back of a police cruiser. “I didn’t mean to hurt nobody. I was just scared.”

Should Owens be in jail? Absolutely. Would he have received even the possibility of parole if he had been wealthy and white with Travis County connections? Probably.

No one can say for sure that Couch’s wealth is the single factor that earned him 10 years of probation. It is also true that the distance between age 16 and 21 is a lifetime.

But ask yourself: Would Ethan Couch been free to play beer pong and run up a bar tab in Mexico last month if he had been a fast food employee and black man with six small kids? Not a chance - even if his defense hadn’t said out loud that their client was too rich to be held accountable.

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San Antonio Express-News. Jan. 11, 2016.

Conviction reviews good public policy

Prosecutorial conviction integrity units are making their mark across the country.

They are credited with shedding new light on questionable convictions on a record number of cases in the last several years, resulting in a record high of 125 exonerations in 2014. That year, there were 39 exonerations in Texas, 33 of them drug cases out of Harris County, according to the National Registry of Exonerations website.

We are pleased to see the fledgling Bexar County unit, created by District Attorney Nico LaHood shortly after he took office, has been doing a brisk business during its first 11 months of operation.

The three-person office has handled about 200 case reviews in its first year and is working on another 500 post-conviction cases involving DNA, said First Assistant District Attorney Woody Halstead.

Bexar County’s Conviction Integrity Unity recently facilitated the release on bond of a 39-year-old man who has been incarcerated since he was 16 for alleged involvement in a gang rape of a 13-year-old girl, the Express-News reports.

The reopening of Rogelio Gutierrez’s case after it was found that key evidence was withheld from the defense lawyer does not mean Gutierrez is automatically free and clear of all charges. It does mean there will be close scrutiny of the way the case was handled, and the action could lead to reforms to ensure such lapses do not recur.

Texas has long been a national leader in the number of exonerations of people wrongfully convicted of crimes. That dubious distinction has given rise to a general distrust of the system and prompted serious questions about the integrity of criminal justice system.

It is encouraging to see an increasing willingness among prosecutors to review innocence claims and allegations that the process used to gain a conviction was flawed.

All Texas major metropolitan areas now have conviction integrity units; some, like Bexar County’s, have been in operation only a short time. This type of service should be available to everyone, not just defendants prosecuted in larger cities.

It is understandable that the costs associated with establishing conviction integrity units might prove prohibitive in some smaller jurisdictions, but that is unfair to defendants convicted in those counties. The state needs to address those needs.

During the last session of the Legislature, Rep. Ruth Jones McClendon, D-San Antonio, was successful in co-sponsoring a bill with Sen. Rodney Ellis, D-Houston, to create a commission to review all exoneration cases since 2010.

The panel, which includes Atascosa District Attorney Rene Pena, chairman of the Texas District and County Attorneys Association, and former Bexar County Medical Examiner Vincent DiMaio, presiding officer of the Texas Forensic Science Commission, is charged with recommending how the state can avoid wrongful convictions in the future.

It took seven years to gain approval of the legislation that created the commission. The version of the legislation approved in the waning days of the 84th Legislature was substantially rewritten in the Senate.

The final bill signed by Gov. Greg Abbott was a watered-down version of the original legislation and dissolves the commission on Dec. 1.

McClendon has announced her retirement and will not be returning for the 85th Legislature, but we urge Ellis to continue pursuing efforts to establish a permanent state innocence commission.

Texas has made significant strides in recent years toward leveling the playing field for defense attorneys with legislation affecting eyewitness identification procedures and access to evidence, but that is simply not enough.

The integrity of the Texas criminal justice system is at stake, and we all have a vested interest in ensuring that it operates properly

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Galveston County Daily News. Jan. 8, 2016.

Indictment of state trooper a sliver of justice

The Texas Department of Public Safety fired the state trooper whose traffic stop for a minor violation in July set off a chain of events that led to the death of 28-year-old Sandra Bland three days later.

A grand jury on Wednesday charged Trooper Brian Encinia with perjury. Hours later, the department announced it would begin the termination proceedings to discharge him.

The perjury charge is a misdemeanor that carries a maximum of one year in jail and a $4,000 fine. Encinia’s attorney has said he would plead not guilty.

Encinia claimed in an affidavit that Bland was “combative and uncooperative” when he stopped her for failing to use a turn signal near the campus of Prairie View A&M; University.

He stated he “removed her from her vehicle to further conduct a safer traffic investigation.” The grand jury didn’t buy it.

Grand jurors “found that statement to be false,” Shawn McDonald, one of five special prosecutors appointed to investigate the case, said.

The panel couldn’t rectify Encinia’s written account of the incident with the video recorded on his dashboard camera that showed just how quickly this traffic stop went from routine to confrontational.

During the stop, Encinia asked Bland to put out her cigarette. When she refused, the trooper ordered her to get out of the car. Bland cursed at Encinia, and he eventually drew a Taser and yelled, “I will light you up.”

Bland’s arrest and death - which was ruled a suicide - drew national attention and outrage.

Her death was among a sting of confrontations with police officers that led to the deaths of numerous black citizens, including Michael Brown in Ferguson, Missouri, Freddie Gray in Baltimore and Eric Garner in New York City.

The grand jury’s investigation into Bland’s death is complete. It has done the job it was impaneled to do. Since grand jury investigations are secret, we will never know whether any other charges against Encinia were brought before the panel, which began its investigation in August. It had already declined indictment of any Waller County jailers or the sheriff’s office in connection with Bland’s death.

Sandra Bland’s death never should have happened. The perjury indictment supports that claim. If Encinia had only conducted himself in a professional manner as he was trained to do - and in a way expected from an officer of the law - she wouldn’t have been placed in the Waller County jail and she could very well be alive today.

And while nothing can turn back the hands of time, the grand jury indictment is finally a tiny sliver of justice for Bland and her family.

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