Archive for the 'Uncategorized' Category

26
Feb
15

blood and roses

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Groove of the Day

Listen to the Smithereens performing “Blood and Roses”

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Weather Report

60° Clear and Windy

25
Feb
15

an initiative

appeals1

As you know, we have four young men in Texas who were convicted as adults of parricide while they were still juveniles. In Moon v. Texas, the appellate court vacated a criminal conviction on the basis that the juvenile court improperly waived its jurisdiction.

It seems that many juvenile courts in Texas have been using the same template for orders to waive jurisdiction, which has led appelate courts in Texas to hand down favorable rulings based on arguments similar to Moon v. Texas.

This development was brought to my attention by one of our kids, Austin Eversole, who has been looking into the possibility of mounting an appeal based on the new ruling, arguing that the waiver of jurisdiction from the juvenile court was legally deficient. If Austin’s order used the same template as referred to above, he may have a strong argument.

We have two other kids serving 40-year and 99-years sentences, respectively, and this approach may offer a basis to mount appeals on multiple fronts. (The fourth kid is eligible for parole in about a year.) If successful appeals were mounted, they could have their convictions in the adult courts vacated.

I have shared this possibility with our law firm, Kutmus, Pennington and Hook.

Yesterday I heard from them and they were excited by the prospect. Obviously, each case needs to be researched to determine whether an appeal is warranted. But we are determined to move forward.

Here is a write-up of the new climate for Texas appeals by a source that is far more knowledgeable than me at evaluating its potential: the Juvenile Law Center of Philadelphia PA.

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The State of Texas v. Cameron Moon

by The Juvenile Law Center

In a landmark case, the Texas Criminal Court of Appeals ruled that the juvenile court erred in failing to conduct an individualized assessment of a 16 year-old’s circumstances before ordering that the youth be tried as an adult. In State v. Cameron Moon, the Texas high court affirmed a ruling vacating Cameron’s transfer to adult court, finding the record factually insufficient to justify the decision. The opinion criticized the juvenile court’s order for simply reciting the transfer statute, and held that juvenile courts must do the “the heavy lifting” of demonstrating their reasons for transfer if they expect their decisions to be upheld on appeal.

Cameron Moon was indicted for murder when he was 16 years-old. Prior to this incident, he had only one misdemeanor conviction for keying a car. The state asked the juvenile court to order that Cameron stand trial as an adult. At Cameron’s hearing, the state presented no evidence about the factors the judge was legally required to consider before ordering transfer other than the fact that he was charged with a serious offense. By contrast, Cameron’s team provided uncontradicted testimony that the youth lacked sophistication and maturity and he was highly amenable to rehabilitation in the juvenile system. Nevertheless, the motion was granted. Moon was later found guilty and sentenced to 30 years in prison.

In a well-reasoned opinion, an intermediate appellate court found that the juvenile court’s findings—that Cameron was of sufficient sophistication and maturity and there was little prospect of public protection and rehabilitation in the juvenile system—were unsupported by the evidence. The intermediate court also rejected the state’s argument that the nature of the offense standing alone justified transfer, stating that such an interpretation would render the Texas statute meaningless.

In ruling against the state on appeal, the Texas Criminal Court of Appeals noted that under the state statute, evidence of a sufficiently egregious offense is enough to justify a waiver of jurisdiction under Texas law. By contrast, in Cameron’s case the juvenile court merely pointed to the category of the alleged crime and heard no evidence about the circumstances surrounding it. The court thus concluded that the transfer decision was “too ill formed to constitute anything but an arbitrary decision.”

Citing to the United States Supreme Court decision in Kent v. United States, the Texas court reinforced the “primacy of appellate review in order to assure that the juvenile court’s broad discretion is not abused” in making the transfer decision. The court rejected the state’s argument that a reviewing court should look at the whole record, including statements made from the bench, to determine if there was any valid reason to support the juvenile court’s waiver decision. Instead, the high court held that the juvenile court has to “show its work” and “put its deliberative process on the record” in its transfer orders, as appellate judges should not “speculate” as to the juvenile judge’s reasoning or “rummage through the record” to find facts to support it.

The Court of Criminal Appeals also agreed with the intermediate appellate court’s finding that the record was legally insufficient to support the finding with regard to sophistication and maturity, as the state presented no evidence on this factor. The high court rejected as unsound the juvenile court’s flawed reasoning that Cameron was sophisticated and mature because he previously waived his constitutional rights and could aid in his defense.

While the decision is a victory for youth throughout Texas, it is particularly so in Harris County, where juvenile courts have a practice of “rubberstamping” requests to transfer youth to adult courts. According to the Center for Children, Law & Policy at the University of Houston Law Center, statistics show that in recent years Harris County—the largest county in Texas by population—waived more youth into adult court than the second, third and fourth largest counties combined. Harris County juvenile courts rarely deny transfer motions and in some years granted transfer in 100% of cases.

Cameron is represented by attorneys Jack Carnegie, John Hagan, David Adler, and Christene Wood. Juvenile Law Center authored an amicus brief, arguing that the juvenile court’s practice of waiving jurisdiction without an individualized determination is unconstitutional. The United State Supreme Court has repeatedly held that youth are categorically less mature in their decision-making, less culpable, and more capable of change than adults. For these reasons, Juvenile Law Center believes that youth should rarely if ever be tried in adult court, where they are subject to confinement in punitive prisons without access to treatment and rehabilitation services.

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Groove of the Day

Listen to Michael Jackson performing “One More Chance”

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Weather Report

60° and Clear

24
Feb
15

improving?

Palm trees

Florida May Limit Prosecuting Children as Adults

by Alba Morales, Human Rights Watch

February 19, 2015

“Sentencing children to the lifetime of consequences that felony convictions carry, including sharply reduced job opportunities, is counterproductive and excessive. Common sense tells us that children are different. By passing this law, Florida legislators would take a sensible step toward creating a justice system that acknowledges those differences.”
— Alba Morales
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Florida legislators should approve Senate Bill (SB) 1082, which would allow judges rather than prosecutors to decide when to prosecute a child as an adult. If enacted, the proposed law would greatly reduce the number of children prosecuted in Florida’s adult courts.

Florida’s current “direct file” statute, which gives prosecutors sole discretion to charge youth ages 14 and older as adults, is one of the most expansive such laws in the United States, as Human Rights Watch documented in 2014. Over 98 percent of children in Florida’s adult court are placed there by a prosecutor with no judicial oversight. Judges cannot review or reverse that decision.

“The decision to prosecute a child in adult court carries severe consequences not only for the young person but for society as well,” said Alba Morales, US researcher at Human Rights Watch. “Florida should ensure that these critical decisions are made only after a full and fair hearing before a judge, who can take into account each child’s individual characteristics and capacity for change.”

Multiple studies have shown that children who are prosecuted in the adult system reoffend more quickly and go on to commit more serious crimes than those who are kept in the juvenile justice system.

“In adult court, they want to lock us up,” one Florida boy told Human Rights Watch. “In juvenile court they want to help us make better choices.”

Children charged as adults are held in Florida’s adult jails pending trial. Once convicted, a child must live with the lifelong consequences of an adult felony conviction instead of the rehabilitation provided in Florida’s juvenile system.

SB 1082, introduced by State Senator Thad Altman, would replace the direct file process with an adversarial hearing in which a judge makes the final decision about whether a child should be tried as an adult, after considering arguments from both the prosecution and the defense. The proposed law would make children younger than 16 ineligible for prosecution in adult court, and limit the crimes for which children 16 and older could be tried as adults for violent felonies. Finally, the law would prohibit holding children in adult jails before trial, keeping them under the supervision of the Florida Department of Juvenile Justice.

Under the proposed law, judges would weigh the seriousness of the crime in addition to other factors. Most youth tried in adult court in Florida are accused of nonviolent crimes. In 2012 and 2013, 60 percent were there for nonviolent offenses, according to data Human Rights Watch analyzed. In one case, for example, a 16-year-old was prosecuted in adult court for stealing two laptops from a classroom. In another, a 17-year-old was charged with burglary as an adult for breaking into the back porch of a home and taking a printer that was stored there.

Children who commit crimes can and should be held accountable, but prosecuting them in adult court harms both the child and society at large. Children are both developmentally less mature than adults and more capable of rehabilitation, which is the primary purpose of the juvenile justice system.

The Convention on the Rights of the Child, to which the US is a signatory, provides that a “variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

“Sentencing children to the lifetime of consequences that felony convictions carry, including sharply reduced job opportunities, is counterproductive and excessive,” Morales said. “Common sense tells us that children are different. By passing this law, Florida legislators would take a sensible step toward creating a justice system that acknowledges those differences.”

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Alba Morales is a researcher in the US Program at Human Rights Watch, who investigates abuses in the US criminal justice system. Prior to joining Human Rights Watch, Morales worked as a staff attorney with the Innocence Project, representing criminal defendants seeking to prove their innocence through post-conviction DNA testing. She also represented indigent people accused of crimes as an attorney with the Legal Aid Society’s criminal defense division in Brooklyn, New York. Morales began her legal career clerking for the Honorable Rosemary Barkett on the 11th Circuit Court of Appeals. She graduated from Brown University and New York University School of Law.

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Groove of the Day

Listen to Modest Mouse performing “Florida”

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Weather Report

29° and Cloudy, Clearing in the Afternoon

23
Feb
15

stormy weather

Frozen Rain

Another day like yesterday, only worse. A cold front moved in last night with freezing rain, and I’m not sure how long the power will hold out. Last Thursday my gasoline generator finally gave up the ghost, and the replacement doesn’t arrive until late afternoon. So I’m operating today on a short leash.

It’s amazing, this “land of extremes.” Two days ago it was sunny and in the 80s, and today it is absolutely frigid.

Until the new generator arrives, I cannot afford the luxury of researching and writing a post. This is the last day, however, no matter what Mother Nature throws at us.

Staying warm and dry next to my propane space heaters.

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Groove of the Day

Listen to Billie Holiday performing “Stormy Weather”

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Weather Report

36° Windy and Cloudy

22
Feb
15

frustration

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I just spent the entire night unsuccessfully looking for my car—in my dreams. Then I awoke to cloudy skies and too little power to turn on the computer until just now. There’s coffee, at least, but no post.

Sorry.

Mama said there’d be days like this.

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Groove of the Day

Listen to the Shirelles performing “Mama Said”

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Weather Report

80° and Cloudy

21
Feb
15

suicide bombers

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The Obama Administration sponsored a three-day conference on violent extremism that wrapped up on Thursday. At the summit, community leaders from Los Angeles, Minneapolis, and Boston highlighted partnerships in their cities that are aimed at protecting young people from extremist ideologies.

In his concluding remarks, President Obama said, “We know from experience that the best way to protect people, especially young people, from falling into the grip of violent extremists is the support of their family, friends, teachers and faith leaders.

“Groups like al Qaeda and ISIL exploit the anger that festers when people feel that injustice and corruption leave them with no chance of improving their lives. The world has to offer today’s youth something better.

“Governments that deny human rights play into the hands of extremists who claim that violence is the only way to achieve change. Efforts to counter violent extremism will only succeed if citizens can address legitimate grievances through the democratic process and express themselves through strong civil societies. Those efforts must be matched by economic, educational and entrepreneurial development so people have hope for a life of dignity.”

Well, maybe. But I can’t help but think that the president is missing something.

A martyr is somebody who suffers persecution or death for advocating, renouncing, refusing to renounce, and/or refusing to advocate a belief or cause. Most martyrs are considered holy or are respected by their followers, becoming a symbol of leadership and heroism.

Martyrs play significant roles in the Abrahamic religions, as well as in Hinduism, the Bahá’í faith, and Sikhism. Similarly, there have been secular martyrs such as Socrates (who accepted death by hemlock rather than giving up his ideals of enlightenment), as well as in politics and in Chinese culture.

Suicide bombers are now behaving as the Japanese did toward the end of World War II when, in desperation, they sent pilots crashing into US ships. These kamikaze attacks were both effective and terrifying, but they were also a clear sign that Japan had gone nuts. The Japanese plan for defeating the Allies was mad, born of a resolution never to surrender and a powerful self-denial of their true position.

kamikaze pilotThe kamikaze attacks were an important element in the dehumanizing of Japanese people. They permitted the use of the atomic bomb. After all, went the thinking of the time, the enemy was irrational and barbaric. It would never surrender. It would fight to the last citizen. Better to incinerate them all and protect our own soldiers. Children growing up in the US were taught that the Asian peoples held life cheaply—not only the lives of others, but also those of their own.

In a similar manner, suicide bombings have transformed the image of radical Islamists. Now, in the view of many, they are so different, so primitive, so cruel and indifferent to human life, that they will celebrate the suicide of a loved one and the simultaneous murder of innocent people.

A couple films from Japan that have come out in recent years shows that the Western reaction to the kamikaze was simplistic and wrong. These films focus on the few kamikaze pilots who survived the war because they were lucky victims of mechanical failure or bad weather, ditched their planes at sea, and lived to tell the tale.

The fact that they did survive meant that they have been able to correct the central myth of the kamikaze—that these young pilots all went to their deaths willingly, enthused by the Samurai spirit.

In the words of Kenichiro Oonuki, one such survivor, when he and his fellow fighter pilots were first asked to volunteer for this “special attack mission” they thought the whole idea “ridiculous.” But, given the night to think about their decision, the men reconsidered. They feared that if they did not volunteer, their families would be ostracized and their parents told that their son was “a coward, not honorable, shameful.” And then, as fighter pilots, they would be sent to the most dangerous part of the front line where they would still die—but dishonored.

As a result, “everyone put down the answer which was opposite from what we were feeling. Probably it’s unthinkable in the current days of peace. Nobody wanted to, but everybody said, ‘Yes, [I volunteer] with all my heart.’ That was the surrounding atmosphere. We could not resist.”

Something akin to peer pressure overcomes one’s basic instinct to survive. Plus, the Japanese kamikaze were put into a corner from which they could not escape.

Much has been made of the promise that the Islamic martyr will enjoy the services of more than 70 virgins and 70 wives in paradise: “They shall recline on jeweled couches face to face, and there shall wait on them immortal youths with bowls and ewers and a cup of purest wine (that will neither pain their heads nor take away their reason); with fruits of their own choice and flesh of fowls that they relish.”

foot of suicide bomberImams go into the mosques and make fiery statements about fighting for God’s mission and purpose, but they also know their audiences. In the range of 18-40 years, there are more men in each age group than women, and they’re horny and vulnerable to cheap promises. Says Mustapha Tlili, founder and director of the New York University Center for Dialogues: Islamic World-US-The West. “They are told that if they die, they will go to paradise,” he says.

“This is their reward, rather than money. If you paid in hard currency, you would have to have gold. If you pay in paradise currency, you don’t have to have anything. It’s cheap currency but it works.”

Columnist David Brooks has said: “Suicide bombing is the crack cocaine of warfare. It doesn’t just inflict death and terror on its victims; it intoxicates the people who sponsor it. It unleashes the deepest and most addictive human passions—the thirst for vengeance, the desire for religious purity, the longing for earthly glory and eternal salvation.”

Add this to the raging hormones and loneliness that many young people feel, and you have a volatile admixture that the imams who encourage violence cynically take advantage of.

For decades, experts from the most powerful governments and prestigious universities around the world have told us that suicide bombers are psychologically normal men and women driven by a single-minded purpose: self-sacrifice. As it turns out, this claim originated with the terrorist leaders themselves, who insisted that they would never recruit mentally unstable people to carry out suicide attacks.

As these strikes have become both increasingly common and increasingly deadly, no one has challenged this conventional wisdom. Yet in his book The Myth of Martyrdom, Adam Lankford argues that these so-called experts have it all wrong. The truth is that most suicide terrorists are like any other suicidal person—longing to escape from unbearable pain, be it depression, anxiety, marital strife, or professional failure. Their “martyrdom” is essentially a cover for an underlying death wish.

Drawing on an array of primary sources, including suicide notes, love letters, diary entries, and martyrdom videos, Lankford reveals the important parallels that exist between suicide bombers, airplane hijackers, cult members, and rampage shooters. The result is an astonishing account of rage and shame that will transform the way we think of terrorism forever. We can’t hope to stop these deadly attacks, Lankford argues, until we understand what’s really behind them.

So maybe the president’s right… at least partially. Suicide bombing and hopelessness go hand-in-hand.

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Groove of the Day

Listen to Tripod performing “Suicide Bomber”

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Weather Report

80° and Clear

20
Feb
15

so broken

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It is easier to build strong children than to repair broken men.

— Frederick Douglass

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Groove of the Day

Listen to Bjork performing “So Broken”

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Weather Report

80° and Partly Cloudy




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