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Young lawyers lock horns in access dispute at court

DA not a scapegoat for jail woes

Waco – It's the kind of mano a mano young men stage, the full frontal attack of youth, with little finesse, and no back-up position for parry or flanking maneuver. The young lions are poised for a bloody bull and bear baiting, a battle royal at the McLennan County Courthouse.

No one is showing their hand at this stage, but the stage is definitely set for a full-dress confrontation come election time.

And it's all about the recurring costly theme in the political life of McLennan County – the finance of the Jack Harwell Detention Center, an 800-plus bed jail built at taxpayer expense with revenue bonds not approved by voters, then leased to CEC, Inc., a private New Jersey-based corporation, to make money performing a ministerial duty outlined by the Texas Constitution for a constitutional office – County Sheriff.

Newly elected County Sheriff Parnell McNamara is on record saying he is not aware of the reasons the downtown jail cannot be reopened, that he, too, is seeking answers.

“Something's got to change,” said Robert Callahan, II, a youthful attorney once employed by District Attorney John Segrest before Abel Reyna defeated Mr. Segrest in the general election of 2010.(click here for a previous report)

He swept into office and cleaned house, setting new get tough policies on accused criminals that have affected the way the defense bar is used to doing business.

The minimum offer for a plea bargain is fifteen years in exchange for a guilty plea in a serious felony case. There is no open file policy that would allow defense attorneys to sneak a peek at the information prosecutors will present at trial prior to indictment, and a discontinuation of the time-honored practice of giving a polygraph examiner a chance to determine if there is a pattern of deception in the way defendants answer questions.

All this means that defense attorneys are at a decided disadvantage due to a severe lack of information they may present their clients, according to certain member of the defense bar.

Mr. Callahan and two other attorneys told County Commissioners on Tuesday that the new way makes it impossible to represent their clients in an effective manner.

They blamed issues of jail overcrowding and a ballooning budget overrun for “outside care” at $45.50 per day paid to CEC, Inc., that the bean counters predict will lead to a $2.6 million budget overrun this year – as it did last year.

Mr. Reyna called them liars. In public. On the record. Flat-footed.

Robert Callahan, said Abel Reyna, either "doesn't know the system," or, he "doesn't understand it."

A seasoned state judge with a background as a prosecutor and veteran operative in the defense of criminal prosecutions sided with Mr. Reyna. There shouldn't be any problem, he said, while at the same time, requesting anonymity.

He suggested that one way to expedite prosecution is to make pre-trial motions for two items available in any proceeding.

1. A motion for an examining trial before the magistrate who issued the warrant for arrest. The Texas Code of Criminal Procedure allows such a move, setting forth the rules for the Court to determine through deposition or hearing the facts of the matter and make a decision whether to bind the case over for indictment. In other states, it's called a pre-trial hearing.
2. A motion to discover all non-privileged items of evidence the State intends to prove, excluding such work product items as officers' suppositions and supplemental reports, attorneys' records of their impressions, witness statements, polygraph examinations, and the like.

“But that would take work,” said the judge. He laughed.

Reached for comment, Mr. Callahan said, “We're not trying to get the DA's office to sell the farm, but the system has got to change.”

He represented a man who was charged with kidnapping his wife's child by a former marriage when all along, she had true custody of the child and had directed her husband to bring the kid to her home in Mexico. The caregiver falsely accused the man, and it took Mr. Callahan months to straighten the issue out and get the case dismissed.

As to his clients' status, “A lot of times, they're not even charged or indicted.”

“The thing with examining trials is that eventually they are another burden on the system,” said Mr. Callahan. It's all in the way the law is interpreted, he added. “You're entitled to certain information. It's limited, but an open file policy makes it all unnecessary...We have to work something out.”

He pointed to the testimony of a colleague, Josh Tetens, who pointed out that the emperor indeed has no clothes, the naked truth that if the Court would open the Courthouse Annex Jail, a 300-plus bed facility the Sheriff's Department has a permit to operate, the overcrowding and budgetary issue would be solved in one fell swoop.

Meanwhile,the McLennan County Commissioners Court is seeking a cost estimate to overhaul and replace the automatic smoke detection and evacuation system prior to seeking a new operating permit from the Texas Commission on Jail Standards.(click here for a previous report)

According to Shannon Herklotz, the assistant director in charge of such permits, McLennan County has had an operating permit all along. The operation of the jail was discontinued voluntarily in order to carry out $1.2 million in renovations while a roofing company repaired and rebuilt the roof over the Courthouse and its annex building, including the jail.(click here for a previous report)

The work has stretched out for nearly three years. It appears the only end in sight is at the ballot box.

The retired judge added his final analysis. The accused actually take advantage of the delays in justice, he said. "They like to stay in the County Jail instead of going down to TDC because in the jail, they have access to visits by their families - and they don't have to work."

Flipping off the joadge on the I Love Lucy Show

Moon Dog blues band sports Victorian look, hot licks

These folks take it seriously, with a funky blues bounce that penetrates the east coast mid-Atlantic music scene with alacrity and - panache! (click here for a good time)

Federal Supremacy v. State Sovereignty in firearms law

by Brian Greene, Utah State Representative

In Utah, I have introduced a bill for the 2013 Legislative session entitled the “State Supremacy Firearms Act.” It was released today as House Bill 114 (HB114)(click here).  The bill is intended to serve as a declaration of state supremacy over the regulation of firearm activities occurring exclusively within the boundaries of Utah, and to put the Federal Government on notice that enforcement of any conflicting federal laws will not be allowed in Utah. Although the response to my bill has been overwhelmingly positive, there have been some critics. The most common argument I have encountered is based upon a misguided reliance on Article VI, Clause 2 of the Constitution—known as the “Supremacy Clause.” Blanket statements such as “federal law always trumps state law,” and “you’re wasting your time because the law is unconstitutional under the Supremacy Clause,” are typical negative reactions to my bill.

Many who favor more gun control and who support a dominant federal government actually believe that if Congress passes a law, or if the President makes an executive order, it is automatically the supreme law of the land. They love to point to the part of the Supremacy Clause that mandates that states must follow federal law when a conflict arises between federal law and either the state constitution or state law. Whether out of ignorance or convenience, they fail to look at the Supremacy Clause in its proper context—that which establishes the U.S. Constitution, and the Laws of the United States which shall be made in pursuance thereof, and U.S. Treaties as “the supreme law of the land.”

Hence, the Supremacy Clause only applies if an act of the Federal Government is in pursuit of its constitutionally authorized powers. In other words, Federal laws are valid and are supreme, only to the extent that those laws were adopted in pursuance of—that is, consistent with—the Constitution.

To read the Supremacy Clause as big government proponents would have you—that ALL FEDERAL LAWS ARE SUPREME—would render the remainder of the Constitution meaningless. Why would there be a need for anything other than a Supremacy Clause?  Why would the Constitution’s Framers have deliberated throughout the summer of 1787 over the other 4,500 words in the Constitution if their intent was to make the Federal Government supreme in all areas it unilaterally decided to act?

The reality is that we have a Constitution that delegates specific enumerated powers to the Federal Government—with the expectation that the Federal Government is not to act beyond those powers. In addition, we have 50 state constitutions that govern in the areas not delegated to the Federal Government. Together, the Constitution of the United States and the Constitutions of each of the fifty states contemplate that each state government will represent and remain accountable to its own citizens.  Because the Federal Government is one of enumerated and limited powers, it must show that a constitutional grant of power authorizes each of its actions.

But the opposite applies to the states—absent a Constitutional restriction on the states, state governments do not need constitutional authorization to act, specifically because it was the intent of the Framers that the powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were to remain the jurisdiction of governments more local and more accountable to the people. Therefore, the general power of governing the health, safety and welfare of the people, generally referred to as the “police power,” was reserved to the states and not delegated to the Federal Government. National Federation of Independent Business v. Sebelius, U.S. Supreme Court (2012) (aka the Obamacare decision).

James Madison explained the nature of our dual sovereignty structure in Federalist No. 39: “the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Printz v. United States U.S. Supreme Court (1997).

The right of the people of Utah to keep and bear arms is not only a matter of public health and safety, subject to the exclusive police power of the State; but, interference with this right by the Federal Government is expressly prohibited by the Second Amendment to the Constitution which reads as follows: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Additionally, Article 1 Section 6 of the Utah State Constitution declares that “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed . . ,“ and reserves to the State Legislature the exclusive authority of defining the lawful use of arms.

Any argument that the current gun control agenda coming out of our nation’s capitol is in pursuit of constitutionally authorized powers is simply unsupportable in the face of the of the 2nd Amendment’s prohibition against infringement, the 10th Amendment’s reservation to the states and their people of all powers not granted to the Federal Government elsewhere in the Constitution, and the protection of the right to keep and bear arms found in Utah’s Constitution. To conclude that the anticipated gun control measures being considered by the Federal Government will be entitled to supremacy status via the Supremacy Clause would require a blatant and intentional disregard of the abundant evidence to the contrary.

Those of us who have the privilege of serving our fellow citizens are duty bound to preserve, protect and defend the fundamental rights of those who elected us. The bill I have proposed is simply a reminder and a warning that Utah will neither violate nor ignore fundamental constitutional principles because of either a perceived or real crisis. In fact, it is in such times of crisis that “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” New York v. United States, U.S. Supreme Court (1992).

Blame game in jail costs portends a hot DA's race

District Attorney Abel Reyna in court appearance at murder trial

Blame blame, blow blame, banana fanna fo fame, me my mo mame – THE BLAME GAME COMETH

Waco – With a jail bunk-to-inmate ratio that is overbuilt by huge margins – there are more than 300 slots that have been left vacant at the downtown Courthouse Annex Jail for nearly 3 years - the local defense bar and the DA's office are playing a vicious game of blame.

Meanwhile, the bean counters predict the budget for jailing prisoners in the McLennan County Jail will eventually exceed its boundaries by about $2.6 million before the fiscal year ends.

The debate, which has maintained a steady boil for the past three years, turned ugly, its rhetoric spilling over into the Commissioners Court at the behest of a fiscally conservative advocate of penny pinching, Commissioner Kelly Snell.

He invited members of the court-appointed defense bar to address the Court with their concerns about certain policies laid down by DA Abel Reyna when he took office in January, 2011.

Mr. Reyna inherited a 1,200-case backlog from former DA John Segrest, and began clearing it by doubling Grand Jury sessions and disallowing previous practices such as letting the lawyers know the names on the indictments before arrest warrants are served, sneaking a peek at investigators' work product prior to indictments without filing pre-trial discovery motions, and allowing accused felony offenders to cop a plea for anything less than 15 years behind penitentiary bars.

“I know the games they play,” he told the Court in a hot rejoinder to his interlocutors' criticisms.

He campaigned on the notion that indicting only about half of the cases made by cops and charged by magistrates is “...nothing more than a coin flip” - a pudding, a fake, a lick, and a promise.

Three years later, he's still going strong, and he's got their attention.

Cops, crooks, lawyers and judges dance to his tune, and it's a hot old town for offenders and ham and egging barristers when his prosecutors turn the screws and say, “We'll see you in court.”

The following is an edited audio recording gleaned from the public records of the Commissioners Court meeting this past Tuesday.Such luminaries as Jonathan Sibley, Robert Callahan, and Josh Tetens ripped into the status quo – which, as any knowledgeable observer can tell you, is merely Latin for “The mess we done got ourselves into now,” according to the sworn testimony of a forgotten Texas Ranger.

(click here to listen to an audio recording of their remarks)

DA Abel Reyna denies allegations, defies allegators...

(click here to listen to an audio recording of Mr. Reyna's rebuttal)

GOP says Medicaid treats taxpayers like 'bystanders'

Area doctors say 'Something has to give' in Medicaid expansion

Waco – An ear, nose and throat specialist, he stood before the McLennan Commissioners Court and told them a sad story about a young man who “smashed his face” in a wreck.

Taxpayers are treated like bystanders in the health care debate,
says County Republican Chairman Ralph Patterson 

Though he wouldn't have made a dime, he stood ready to perform reconstructive surgery, he recalls.

But it wasn't to be because, though the patient is employed, he's uninsured, and he didn't have the money to pay for the office visit and to pay the basic treatment fee to the hospital. The consequences are stark. The patient will face severe issues in the future that concern his breathing, vision and nervous system.

A lack of insurance coverage will diminish the quality of his life - to a huge degree.

Dr. Bradford Holland, former chairman of the McLennan County Medical Society and current chair of the outfit's legislative effort, made it brief and to the point.

The numbers don't lie. In the year 2000, 70 percent of doctors in Texas accepted Medicaid payments; by mid-decade, only 47 percent would play ball with the federal government. As of today, 30 percent will perform their professional duties in exchange for Medicaid payment.

“Something's got to give,” he said. As of today, anesthesiologists, surgeons, radiologists – all the specialists – are performing their services for free.

No other business in the world would continue to even try to function under those conditions, no matter what service is provided, he pointed out.(One may hear an edited audio recording of Dr. Holland's remarks by clicking here)

The current legislative session is in a quandary as to how Texas will respond to federal demands to expand its Medicaid system. Governor Rick Perry is saying no – no way. His party, the GOP, is following suit, and it's the majority in both houses.

The current standard is that a family of three can earn up to $57,000, or three times the poverty level, and still take advantage of a system everyone agrees is beyond broken.

“It's a mess,” said McLennan County Republican Chairman Ralph Patterson in remarks following Dr. Holland's.

As the deadline of January 1, 2014 comes barreling down the pike like a blue norther, advocates are clamoring for the state to opt for picking up an additional $100 billion over the next decade, a measure that would help an estimated one million uninsured Texans get health insurance.

In San Antonio, George Hernandez, Jr., points out that it's not necessarily the only course of action. As CEO of the University Health System, he says with approval of the feds and the Texas Legislature, a county can always set up its own situation in the Medicaid department.

It's a tricky situation because conservatives are saying not so fast.

To exacerbate a complicated crisis, the U.S. Supreme Court ruled in June that a state can always refuse to take part without being penalized.

Bexar County Judge Nelson Wolff declared to newsmen that his county could save $53 million a year if half of the 55,000 people on county-paid health care were placed on the new system of an expanded Medicaid program.

The complications don't end there, said the GOP Chairman, Mr. Patterson.

The Legislature underfunded Medicaid by $4.5 billion in the previous session, which consumes 20 percent of the state's budget. If Medicaid is expanded to fit the requirements of the Obamacare system, it would consume 33 percent.

In meetings he's attended, said Mr. Patterson, “...the taxpayers are treated as bystanders.” He is amazed at the enthusiasm he sees among those who will benefit from increased payments of Medicaid funds.

Hisconclusion: The feds are counting on making such a mess that people will gladly embrace the notion of a single-payer health care system similar to the Canadian or British solution upon which most nations of the western world rely.(One may listen to an edited audio recording of Mr. Patterson's remarks by clicking here)

Dr. Holland's three alternatives are not much more palatable to conservative ears.

They are:

1. Expand the role of Medicaid and participate in Obamacare
2. Create a public hospital district with taxing powers
3. Send patients to Scott & White in Temple