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American Housing Foundation’s crumbling (literally) empire
In the year since American Housing Foundation founder Steve Sterquell drove his car into a bridge abutment outside of Amarillo in what authorities ruled a suicide, his 14,000-unit non-profit affordable housing empire has unraveled, with nearly a dozen lawsuits in state and federal courts trying to untangle it. Now, according to this story from the Waco Tribune-Herald, it appears that it is starting to crumble, as well.
Early last month, I reported that for the past couple of years AHF’s properties had appeared at the bottom of the U.S. Department of Housing and Urban Development’s annual report on the state’s most-dilapidated subsidized housing projects. In HUD’s latest report, which uses a scale of 1 — 100, AHF’s Robinson Garden Apartments, in Waco, earned the second-lowest score in the entire state, a 29.47, with several serious health and/or safety violations noted.
In 2008, meanwhile, AHF’s Parkside Village complex, also in Waco, received a score of 29 and a footnote indicating it, too, had fire safety and/or health deficiencies.
Yesterday’s Tribune-Herald story, by J.B. Smith, details specific horrors at Parkside, including unfixed broken windows, units whose heating was broken for so long tenants had to leave the stove on for warmth, and a crime rate that is far higher than other nearby apartment complexes. State inspectors also found serious problems when they visited last spring.
“After the complex failed to fix those problems, the inspectors last October turned the case over to the IRS, which has the power to take back the $2.5 million in federal tax credits that American Housing Foundation sold to finance renovations in 2000,” the article said. State housing administrators added they would begin levying stiff fines if the problems were not fixed soon.
One mystery: Why HUD has taken so long to pursue further action. The agency’s rules say that if a project earns a low-enough score during a regular inspection, HUD is supposed to re-visit the property within the year for a follow-up. But, the Tribune reported, even though Parkside failed two separate inspections in 2008, federal inspectors hadn’t been back for a year and a half.
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Swami lawyers ask for another delay
Attorneys for Prakashanand Saraswati, the Hindu leader who stands accused of groping two under-aged girls in the 1990s, have asked for another delay in the holy man’s trial in Hays County.
If District Court Judge Charles Ramsay grants the request, the trial, now scheduled for early April, likely won’t be heard until the end of the summer — nearly two and a half years after Prakashanand was arrested.
According to court documents filed last week, the founder and spiritual leader of Barsana Dham, the 200-acre ashram south of Austin, has been spending most of his time in India, where, the filings say, he underwent surgery on his lower back. A note from Dr. S.S. Kale of the All India Institute of Medical Science described the January operation as “serious” and said it took five hours to complete.
Kale added that Prakashanand, also known to his followers as Shree Swamiji, should “avoid traveling and have complete rest for the next three to four months” and shouldn’t sit for more than a half-hour at a time.
“The defendant is a very elderly individual,” the filing said. “Traveling from India to the United States takes approximately 18 hours” and thus “renders a trial in April 2010 a virtual impossibility.”
Hays County District Attorney Sherri Tibbe is opposed to the delay request, according to the court filings. Ramsay is scheduled to hear both sides make their arguments on March 3 in San Marcos.
Prakashanand’s trial had been scheduled to begin April 5 — a date that had been reset from an earlier scheduled date of January 11. He was arrested by U.S. marshals in April 2008 as he stepped off an international flight in Washington, D.C.
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Keller deserves punishment, prosecutors argue
Seeking to revive their case against Judge Sharon Keller, prosecutors argued Wednesday that Keller deserves to be reprimanded or removed from office for refusing to accept a late execution-day appeal in 2007.
In documents filed Wednesday with the State Commission on Judicial Conduct, which will weigh Keller’s fate, prosecutors objected to a special master’s conclusion that Keller was not to blame for failures that resulted in death row inmate Michael Richard being executed without his final appeal being heard in court.
Dismissing the findings by Special Master David Berchelmann Jr. as irrelevant and misguided, prosecutors said Keller’s conduct in Richard’s case “was clearly inconsistent with the proper performance of her duties … and cast public discredit on the judiciary.”
Keller’s lawyer, Chip Babcock, also filed objections to Berchelmann’s findings, issued last month after he heard four days of testimony in August.
Though emphatically in Keller’s favor, Berchelmann’s findings also criticized Keller for questionable judgment when she refused to keep the court clerk’s office open past 5 p.m. Richard’s lawyers had requested extra time to file an appeal based on a U.S. Supreme Court decision that morning.
Babcock urged the commission to disregard Berchelmann’s criticism as irrelevant, noting that Keller was charged with violating the code of judicial ethics and the Texas Constitution — not with exhibiting poor judgment or making questionable decisions.
“The special master explicitly found, based on a thorough and careful review of the evidence, that Judge Keller ‘did not violate any written or unwritten rules or laws,’” Babcock wrote. “The special master’s findings of fact plainly absolve Judge Keller of all of the charges leveled against her … (and) can only be read as an exoneration of her conduct.”
Babcock said he plans to file a formal response to prosecutors’ objections in the near future, and both sides will get a chance to argue their objections before the commission during an as-yet unscheduled meeting.
After that meeting, the 13-member commission will meet in private to decide whether to drop the charges, reprimand Keller or recommend her removal from office. That decision could take weeks, perhaps months, and a removal recommendation would kick off a new inquiry by a specially created seven-member panel of appellate court judges.
In Wednesday’s filings, prosecutors attacked Berchelmann’s two main conclusions:
That Keller violated no rule or law when she declined to accept the appeal after 5 p.m.
That lawyers with the Texas Defender Service, or TDS, were to blame for the missed appeal by failing to diligently prepare Richard’s court briefs and declining to pursue available options to file them with the Court of Criminal Appeals after 5 p.m.
Prosecutors argued that Berchelmann improperly portioned out blame as if he were presiding over a negligence lawsuit instead of charges of judicial misconduct.
“The issue here is not TDS’s conduct, but Judge Keller’s conduct,” prosecutors said. “Judge Keller’s conduct on Sept. 25, 2007 should be examined based on what she knew, heard, thought, said, did, decided and failed to do — and not on things that she did not know.”
Read more in print or on line tomorrow.
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A cautionary tale for colleges with big sports dreams
Part of the State University of New York system, Binghamton University for years enjoyed a sterling academic reputation. But that wasn’t enough for administrators, who craved a competitive and high-profile athletic program. On Thursday, a special investigator released this scathing report on what can happen when big-time sports overwhelm academics.
Upstate New York is a long way away. Yet a couple of Central Texas universities currently in the midst of aggressive drives to grow their sports programs might want to scan the document for lessons on what not to do as they reach for the stars.
The University of Texas-San Antonio is starting a football program from scratch. Last year the Roadrunners hired former University of Miami coach Larry Coker, who recently announced his first class of recruits. The school, which is raising money for a stadium, intends to start playing in 2011 and ascend to the Football Bowl Subdivision (formerly Division I) by 2013. Texas State University in San Marcos also hopes to elevate itself to the top division soon. To demonstrate its intentions, it recently upgraded its football stadium and built new baseball and softball facilities.
Like these Texas schools, Binghamton, too, aspired to raise its profile through sports. After several years of debate, during which opponents of a bigger, more competitive program raised concerns about a greater emphasis on athletics degrading the school’s academics, in 2001-02 BU entered what was then known as Division I. Its marquee program was men’s basketball, played in a new $33 million arena.
According to this week’s report, written by a former New York judge, the program spun out of control within years — and particularly after the 2007 hiring of Kevin Broadus, a former assistant coach at Georgetown. He began an aggressive campaign to recruit basketball players with sterling athletic credentials, but who occasionally sported dubious academic and behavioral backgrounds. Among them: Malik Alvin, who’d left University of Texas-El Paso because of academic difficulties, but found a home at BU.
“Division I athletics inherently present a struggle to balance pursuit of athletic success — and the accompanying rewards of heightened public recognition of a university — with maintenance of academic and behavioral standards,” the report said. At BU, the balance soon tilted heavily toward sports.
Binghamton improved quickly on the court. In 2008-09 its basketball team won 23 games and qualified for its first-ever berth in the NCAA tournament. But that success wasn’t mirrored in the classroom. Supporters insisted they were merely recruiting a “broader range” of students, but out of eight recruits that year, three were dismissed for misconduct, one flunked out and a fifth quit. Of the nine remaining players, five eventually were kicked out or left.
Indeed, if a student was good at basketball, almost anything went, according to the report. Coaches, supported by administrators, pressured admissions officials to admit students who clearly were unprepared for college. Several had brushes with the law. Students transferring from junior colleges were given credit for courses such as Theories of Softball and Bowling I.
And the university was ill-prepared to help the floundering students succeed, the report found. Players were allowed to miss classes and failing grades were changed to passing. In some cases, basketball players who struggled had a complicit professor intercede on their behalf, and e-mail exchanges suggest an assistant coach helped at least one player write a paper. Several athletes were permitted to enroll in an independent study course, for which they received much higher grades than they did in their other classes.
Many of the program’s deficiencies were revealed in an article a year ago in the New York Times. Since then, Coach Broadus has been placed on administrative leave. Lois DeFleur, the school’s president, whom the report found to have exercised insufficient oversight over her athletic program, has announced her resignation. The athletic director, also faulted in the report, has resigned, as well.
“Difficulties such as BU experienced are not uncommon in intercollegiate athletic programs, particularly in Division I men’s basketball,” the report concluded.
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Mack Brown’s pay: He’s No. 2?
We’ve spent plenty of time dissecting Longhorn coach Mack Brown’s recent salary adjustment, to a guaranteed annual pay of $5.1 million — noting, for example, that the figure made him not just the highest-paid coach in the country, but also one of the best-paid nonprofit executives, too.
But what if Brown is only the second-best-paid coach in the country? Oh, the horror…!!
The question arose after our alert higher education reporter, Ralph Haurwitz, pointed me to this article, from the Chronicle of Higher Education. Citing tax documents and other financial disclosures, it noted that Michigan State University basketball coach Tom Izzo, at right, made an astounding $8.7 million in 2006. And that was back when Mack Brown was barely getting by with $2.5 million-ish.
With bragging rights for most alarming compensation package in the balance, I called Michigan State’s vice president for university relations, Terry Denbow. He was reassuring.
“That was a year when a lot of stuff happened,” he said, adding that several one-time bonuses and incentive payments came due in 2006. Izzo’s current contract — “this does accurately reflect what he gets now,” Denbow promised — calls for him to be paid a mere $2.6 million annually — plus perks (two cars, football and basketball tickets, use of the school plane, etc.), incentive bonuses, and a $300,000 yearly payment from Nike. In short, a modest $2.9 million-plus paycheck more appropriate for a non-Texas school. Here’s the contract.
So for now, anyway, Mack Brown’s status as highest-paid coach still appears to be solid. Until we hear different.
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Can the Longhorns save the Cactus Cafe?
Earlier this week we reported that University of Texas administrators were planning to shut the Cactus Cafe in August as part of an effort to save money. An outcry to save the Cactus quickly followed.
Officials initially indicated their minds were made up. But an economic study suggests that hope for a bailout might be found in a surprising place: UT’s successful football team.
Closing the venerable live music venue is expected to save the university about $122,000 annually. As my colleague Ralph K.M. Haurwitz reported here, the goal of slashing costs at UT “has taken on new urgency with a directive from Gov. Rick Perry to plan for a reduction of 5 percent, or $29 million, in the state-funded portion of the current biennial budget.”
Our columnist John Kelso has implored Coach Mack Brown to toss a fraction of his $5.1 million annual salary toward the Cactus to keep the music playing. But according to a study by an economics professor, such a direct payment might not be necessary. He suggests that the football team’s near-perfect season this year could be enough to persuade lawmakers to find some extra dough for UT, at least if the past is any indication.
In his 2003 working paper (published in 2006), “The Relationship Between Big-Time College Football and State Appropriations to Higher Education,” Brad Humphreys of the University of Maryland found that “institutions with successful football teams receive 3% to 8% increases in state appropriations the following year.”
Even better, he discovered that “defeating an in-state rival in a prominent football game is also associated with an increased level of appropriation in the following year.” On November 26, UT beat Texas A&M 49-39.
Humphreys, now a professor at the University of Alberta, postulated several reasons for the connection between a winning season and a winning session. For instance, “Many residents and state legislators are alumni of a state’s public institutions of higher education and other residents of a state who are not alumni may follow the big-time athletic teams in the state; these individuals can be interpreted as a pressure group competing with other groups…for political influence in state legislatures….Prominent and successful athletic programs can be interpreted as one way of efficiently generating political pressure.”
Noting that football games also are a favorite place for lobbyists to mingle with politicians, Humphreys added that, to many influential lawmakers, a great football team is synonymous with a great school worthy of support: “The benefits of an outstanding department in the humanities or a Nobel Prize winning chemist might not be apparent to the state legislators deciding on the annual appropriation to the state university, but fielding a successful Division 1-A football team puts the university in the news frequently and prominently.”
You can read the whole thing here. (Note: Past performance is no guarantee of future results. Please consult with your financial adviser.)
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Bad news for some American Housing residents
While this probably is not news to some residents of American Housing Foundation’s apartment complexes, here it is in print (OK, on the web): You may be living in sub-standard units.
The latest proof comes courtesy of the U.S. Department Housing and Urban Development, which recently released the results of its latest round of physical inspections, performed last year on nearly 400 properties of the state’s subsidized housing stock. The state’s two lowest scores were earned by Waco apartment complexes — one of which is owned by AHF. (A nod of gratitude to the Texas Low Income Housing Information Service, which helped me interpret the federal agency’s data.)
American Housing is the non-profit affordable housing company based in Amarillo whose founder and president, Steve Sterquell, died in a fiery car wreck a year ago. The state fire marshal declared his death a suicide; his survivors have insisted the crash was an accident. (Read stories about the company here and here; review the Focal Point blog for periodic updates.)
Either way, Sterquell left the company in disarray. Since his death, numerous disgruntled creditors have crawled out of the woodwork, and the company sought protection in bankruptcy court. Today, nearly a dozen legal actions involving AHF are chugging their way through state and federal courts in Amarillo.
AHF’s complexes typically rent to tenants who receive some form of financial assistance. HUD’s Real Estate Assessment Center periodically visits properties that receive public money in the form of subsidized rents and grades them on a 0-100 scale, depending on their conditions. A mark of less than 60 is considered failing. Scores under 30 are referred to HUD’s Departmental Enforcement Center for possible prosecution.
Unfortunately, AHF is no stranger to the lower side of the scale. In 2008, its Parkside Village complex, also in Waco, received a score of 29 and a footnote indicating it had fire safety and/or health deficiencies — HUD’s most serious infraction.
Last year, the federal agency visited AHF’s other Waco property, Robinson Garden Apartments. The result? The second-lowest score in the state, a 29.47, with another notation that the violations were serious health and/or safety related.
The worst-scoring HUD inspected property in the state in 2009? Waco’s Tanglewood Apartments, which scored a 29.22. Overall, the housing information service calculated that 14 percent of the 388 subsidized housing projects inspected by HUD last year earned failing marks.
So how did Austin-area affordable housing units stack up last year by HUD’s standards? Pretty well, generally. All but one scored above the 60 cut-off. The lone failure was the Taylor Housing Authority’s Avery Apartments, which earned a 50.65 when the federal inspectors visited last February.
Austin’s Walnut Creek Apartments, on Springdale Road in East Austin, scored a barely passing 61.82. Travis Park Apartments, on East Oltorf, earned a 62.7. Only one of AHF’s Austin holdings was inspected in 2009. Fairway Village, which several years ago attracted unwanted publicity for leaking sewers and other undesirable living conditions, earned a 90.4 this time around.
The highest scores? Fourteen separate properties owned by the Austin Housing Authority inspected by HUD last year all scored above 95, with six hitting an impressive 99 or above. Multi-family complexes on Wilson Street, Manchaca and Kinney, in South Austin; and North Austin’s Limestone Canyon Apartments, also aced the test.
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No answer to Judge Keller’s findings this week
The deadline for responses to District Judge David Berchelmann Jr.’s findings in the Sharon Keller case, originally due Thursday, has been pushed back to Feb. 17.
Prosecutors (known in this process as examiners) plan to raise objections to Berchelmann’s findings, which said Keller displayed poor judgment — but should not be reprimanded or removed from office — in handling a request to file an after-hours, execution-day appeal in 2007.
Keller, presiding judge for the Court of Criminal Appeals, also plans to file a response with the State Commission on Judicial Conduct.
Both the examiners and Keller’s lawyer, Chip Babcock, requested the extension from the commission.
After the replies are received, the commission will hold a public meeting to hear from the examiners and defense lawyers.
The 13 commissioners — appointed by Gov. Rick Perry, the State Bar of Texas and Texas Supreme Court — can reject, accept or modify Berchelmann’s findings. They also can send the matter back to Berchelmann for further consideration.
At some point, the commissioners will meet in private to choose between three options:
They can dismiss the charges, which they filed against Keller in February 2009.
They can reprimand Keller.
They can recommend that she be removed from office. That would send the matter to a specially formed seven-judge panel, which would start the review process all over again to determine Keller’s fate.
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Read the Texas Enterprise Fund report
Here is the Texans for Public Justice report, discussed in this morning’s story about contract changes for companies receiving taxpayer grants from the Texas Enterprise Fund.
The report begins:
“The global recession that hit Texas in 2008 is playing havoc with Governor Perry’s signature business-incentive program: the Texas Enterprise Fund (TEF). A review of 45 TEF projects that received $363 million in public funds reveals that an increasing number of TEF recipients defaulted on their job commitments in 2008 — with even more defaults expected to be reported in the 2009 compliance reports that TEF is now beginning to receive.
“Run out of the Governor’s Office, TEF has been a centerpiece of Perry’s administration, with the governor often convening media events to unveil TEF awards. The political role of the program has become more problematic in the last year.
“As a brutal economic downturn coincides with Perry’s reelection campaign, the governor has not publicly addressed his job program’s mounting woes. Instead, his office has quietly redefined success.
“When the 2008 recession struck, the governor’s office increasingly amended TEF deals to ease the contractual requirements of what a recipient must do to hold onto its public funds. In its first four years of operation, TEF formally amended just one development deal.”
Last night, in anticipation of the report, the governor’s office announced it had amended 11 contracts to lower the number of promised jobs or give companies more time to meet their goals. Perry’s office was still compiling specific information about the new deals with the 11 last night.
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Why did feds target local mortgage company?
Last week, investigators for the U.S. Department of Housing and Urban Development sent out subpoenas to more than a dozen mortgage companies whose recent lending records merited further scrutiny, according to the agency. On the list was an Austin-area company, Alethes LLC, of Lakeway.
So how did the local company get on HUD’s list? Some clues can be found by delving into a database maintained by the federal housing agency. For starters, after a bit of digging, you can learn that Alethes borrowers have defaulted at a rate of about four times higher than the national average.
A spokesman for the company, meanwhile, said it was a victim of loose lending policies approved by the government.
Here’s some background on why the government is now scrutinizing certain mortgage companies like Alethes. The Federal Housing Authority, part of HUD, insures mortgages for home buyers. In the past, it has been an insurer of last resort, primarily offering protection to banks lending to low-, or low-middle-income buyers.
But as the ripples from the recent economic bust spread, FHA became more active in the homebuyer market.Today, it insures about 30 percent of all new loans.
With that enhanced role has come more defaults. As the economy has tanked, the agency has seen claims on its insurance fund rise, and its reserves are dangerously low. So it has become more aggressive in looking at the lending records of individual companies, focusing in on those whose default rates are significantly above the national average of around 5 percent, as well as companies whose borrowers seem to be defaulting unusually fast.
“You’re talking about a 30-year mortgage and some of these people don’t make it three months,” explained HUD spokesman Michael Zerega. “We want to know what happened.”
According to the HUD database, Alethes has made about 2,000 FHA loans in the past two years. Due to the high default rate of its borrowers, that translates into a high number of current defaults and claims: 366.
Drilling down more, you can see which of the company’s branches had particular problems. The worst? A small branch in Alabama that originated 13 loans — five of which, or 38.5 percent, defaulted.
HUD investigators are also looking at loans that failed unusually quickly. A large number of Alethes’ borrowers were considered “seriously delinquent” — three or more months behind in their mortgage payments — soon after closing. At one North Austin branch, according to the HUD data, Alethes wrote 448 loans in 2008 and 2009. Of those, just over 12 percent defaulted. That’s more than double the national average. Even more surprising, 29 of the 55 failures were considered in default within six months of taking out loans.
The company’s website alludes to a higher purpose than simply making money: “Conceived as AmeriNET Mortgage in 1998, Alethes operates and funds loans as both a mortgage banker and a mortgage broker. Alethes is Greek for truth and possibility, founded on a core belief: ‘always chase the truth and the possibilities will be endless.’”
And: “Alethes is a mortgage lender that endeavors to glorify God by imparting sound business principles, investing in its people, and impacting the communities in which it serves.”
When I called him, CEO Danny Smith — who said he was “shocked” by HUD’s subpoena — cited several reasons for the company’s high default rate. The first, he said, was that Alethes used a more subjective system to measure risk.
According to Smith, the company evaluated all its loan applications manually, meaning an employee decided whether an applicant was a good risk to repay a mortgage. A manual system can be used when a company wants to be more aggressive in writing loans. That compares to mortgage companies that feed an applicant’s information into a computer program, which assesses risk automatically.
“It was part of our strategy,” Smith said. “We had always done this, and done it well.”
The second reason for the company’s unusually high rate of fast defaults, Smith said, was its involvement in seller-funded down-payment assistance programs. Controversial right up until the government banned them in late 2008, the loans permitted people to purchase a house with no money down.
The system worked like this: A potential home buyer would borrow the down payment from a recognized non-profit organization, which would then recover the money — plus a fee — from the seller. Supporters said the arrangement helped get low-income people into their own homes.
Critics, however, charged that the practice inflated home prices and permitted those without the financial means to buy a house. In fact, research has demonstrated that buyers who purchased their homes using down payments from the sellers have defaulted at a much high rate then those who used their own money, or even borrowed money from someone other than the seller.
“The lesson is that not everybody should buy a house,” said John Henneberger, director of the Texas Low-Income Housing Information Service.
Smith said Alethes used various non-profit middlemen, all approved by HUD. “Every one of these loans was written according to HUD guidelines,” he said. No one in the company, he added, “has perpetrated any fraud.”
“We want to send a message to the industry that as the mortgage landscape has shifted, we are watching very carefully and that we are poised to take action against bad performers,” HUD Inspector General Kenneth Donahue said in a written statement.
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Keller should not be removed from office, special judge says
UPDATE:
The Texas Defender Service released this statement:
The Special Master blames TDS for failing to have the right person (a lawyer, not a paralegal) ask the right official (the judge secretly assigned to the case, not a clerk of the court or the CCA’s General Counsel) the right question (to keep the “court” open, not the “clerk’s office” open). Justice should not depend on such semantics. Shifting the responsibility to ensure access to justice away from the Court and to TDS is akin to blaming a paramedic for a car crash victim’s injuries. It is clear that Mr. Richard would not have been executed but for the violation of the CCA’s own execution day protocol and the decision to refuse to allow Mr. Richard to file his pleading after five o’clock. TDS made a reasonable inquiry through reasonable channels to ask the Court to accept a filing on the day of an execution on an issue that had no merit until that same morning. Judge Keller knew exactly what was being asked of her. She responded with an unequivocal “no” and closed the courthouse doors.
Sharon Keller, the state’s highest criminal judge, does not deserve to be removed from office — or even reprimanded — for her conduct in the 2007 execution of Michael Richard, a special judge has determined.
District Judge David Berchelmann Jr. said most of the blame for the court’s failure to receive Richard’s execution-day appeal lies with the death row inmate’s lawyers with the Texas Defender Service.
“Although Judge Keller’s conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office,” Berchelmann said in his findings of fact . “Indeed, although Judge Keller’s actions did not help the situation, the majority of problems involving the Richard execution was the responsibility of the TDS.”
Berchelmann forwarded his findings to the State Commission on Judicial Conduct today. The commission will schedule a public meeting to discuss the findings at a future date.
The 13 commissioners can vote to dismiss the charges against Keller, issue a reprimand or recommend that she be removed from the Court of Criminal Appeals. A removal recommendation would kick off a second round of hearings.
Keller’s lawyer, Chip Babcock, released this statement:
“Judge Keller is gratified for Judge Berchelmann’s decision which finds that ‘she did not violate any written or unwritten rules or laws and her conduct does not warrant removal from office, or even further reprimand.’ Judge Keller takes to heart the advice that she should strive to be more collegial and that the court’s internal communications should improve.”
In an interview, Babcock said the findings — emphatically in Keller’s favor — greatly improves Keller’s chances of having the State Commission on Judicial Conduct dismiss charges against her.
Find prior coverage of the charges against Keller here.
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Lawyer clarifies role in case involving Dow, appeals court
Six weeks after holding a hearing on the matter, the Court of Criminal Appeals has not yet decided whether to sanction death penalty lawyer David Dow for filing a brief within two days of a client’s execution.
Details of that Dec. 2 hearing, where the court asked Dow to explain the delay in the brief for death row inmate Danielle Simpson, are here.
Meantime, Tyler lawyer Wes Volberding has mailed a brief to the court in hopes of clarifying his involvement in the Simpson case.
Volberding takes exception to the description that his case files — contained in 15 boxes given to the Texas Defender Service only nine days before Simpson’s Nov. 18 execution — were poorly organized.
Volberding said his appellate files were properly maintained and indexed. Boxed files from Simpson’s trial lawyers, however, were not organized by his office, he said, adding that miscellaneous documents in other boxes were intended for his use and could easily be confusing to Texas Defender Service lawyers.
Volberding also recounted his role in an exasperating exchange in which Simpson asked that all appeals be stopped, then seemingly changed his mind on several occasions, further delaying work by the Texas Defender Service.
After several embarrassing episodes involving late briefs in death penalty cases, the Court of Criminal Appeals imposed a two-day pre-execution deadline unless lawyers can justify their tardiness. Possible sanctions for violating the time limit include a contempt-of-court finding or complaint to the State Bar of Texas.
Presiding Judge Sharon Keller has recused herself from Dow’s case. Dow was among the lawyers hoping to file an after-hours brief for death row inmate Michael Richard in 2007. Keller has been accused of violating her duty as a judge by refusing that appeal.
We’re still waiting for results from the Keller investigation as well. The San Antonio district judge appointed to issue findings of fact in her case has yet to forward his conclusions to the State Commission on Judicial Conduct. Keller’s trial was in August.
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Is SuperFreakonomics inappropriate? No — But Freakonomics is
The Texas Department of Criminal Justice recently blocked an inmate from receiving the best-selling book, “SuperFreakonomics” — currently No. 6 on the New York Times bestseller list — labeling the book’s contents racially provocative. But when contacted by Focal Point, a prisons spokesman admitted the agency made a terrible mistake when it identified the popular economics book as violating its censorship policies.
The department, a spokesman explained, really meant to ban the prequel and mega-best-seller “Freakonomics,” currently No. 3 on the Times’ paperback bestsellers list.
The issue arose at the end of last year, after inmate Thomas Giesburg ordered “SuperFreakonomics,” the follow-up book to the hit pop-economics book of nearly the same name. Like the earlier book, it is co-written by economist Steven Levitt and journalist Stephen Dubner. Giesburg, meanwhile, has been serving out a 65-year sentence since 1995 for a murder out of Harris County.
The prison intercepted the book when it arrived from Amazon.com, and confiscated it. On Wednesday morning, Levitt wrote about the incident on his blog.
Levitt was perplexed, he wrote, because the early page numbers on which the offending passages occurred had to do with a study showing how Arab babies conceived during Ramadan experienced an unusual rate of visual, hearing or learning disabilities as adults. Later pages identified by the prison dealt with how other accidents of birth can affect a person’s life; and a brief description of a murder. Those seemed like odd reasons to ban a book to me, too. So I called the prison.
TDCJ spokesman Jason Clark called me back. The problem, he said, was that the prison agency’s book reviewers mistook “SuperFreakonomics” for “Freakonomics,” which has sold upwards of 4 million copies so far (though none to Texas prisoners, presumably). In an email, Clark said that book — “A Rogue Economist Explores the Hidden Side of Everything” — was “denied by the Director’s Review Committee (DRC) on 5/25/05; pages 57, 59, 60 & 97 contained racial material.”
On his blog, Levitt said that, according to a copy of the rejection form that Giesburg sent him, TDCJ deemed the book inappropriate for the prison population because it contained material of the type that “a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots or security threat group activity.”
After a bit of looking I managed to track down a copy of “Freakonomics” at Faulk Central Library (it’s not easy to find a book the Washington Post termed “an engaging and always interesting work, rich in insights, full of surprises and packed with fascinating ideas”). Pages 57, 59 and 60 are in Chapter 2, How Is The Ku Klux Klan Like a Group of Real-Estate Agents?
Page 57 contains a rather tame and factual history of the Klan, with a single quote containing the use of the ‘N’ word to describe blacks. Page 59 relates how a young reformer goes undercover and learns exactly how bigoted Klan members really are. It contains two uses of the ‘N’ word — again, both quotes. Page 60 adds details of the man’s study, such as the Klan’s hilarious secret handshake, which he describes as “a left-handed, limp-wristed fish wiggle.” It, too, quotes a Klansman using the ‘N’ word.
Page 97 is in Chapter 3, Why Do Drug Dealers Live with Their Moms? In it, a young Indian economist immerses himself in one of Chicago’s worst neighborhoods and observes about how drug gangs organize themselves as sophisticated businesses.
Like the other referenced pages, page 97 contains a single blue passage. In it, a drug dealer explained the hard life: “It’s a war out here, man. I mean, every day people struggling to survive, so you know, we just do what we can. We ain’t got no choice, and if that means getting killed, well shit, it’s what niggers do around here to feed their family.”
What’s especially confusing is that page 96 — unlisted by TDCJ as offensive — also contains several uses of the ‘N’ word.
Exactly why it cited one and not the other will remain confusing. Clark said the agency’s detailed reason for originally denying the book in 2005 has been purged. All that remains is the ban.
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Officer down: How police die
For Texas police officers, the news is good and bad: In 2009, according to this database maintained by the Officer Down Memorial Page, 11 cops died in the line of duty between Jan. 1 and Dec. 31, 2009. So what’s the upside to that?
It’s the second fewest Texas officers to die in the line of duty this decade. And, like many statistics, the numbers need to be dissected to be understood.
According to the website, the worst years for police deaths in this state since the turn of the century were 2007, with 22; and 2001, with 20. On the other end, there were ten on-duty deaths in 2003; 2006 tied 2009 with 11. That’s out of about 85,000 full-time and reserve officers in Texas.
No death is acceptable, of course, and we should all grieve every time a public servant dies while serving the public. Notes Tom Gaylor, Deputy Executive Director of Public Affairs for the Texas Municipal Police Association: “Cops are targets because of what we do and what we stand for.”
That said, some deaths speak less to being targets than to the daily requirements of the job. (The Officer Down Memorial Page excludes police deaths attributable to drug or alcohol abuse or misconduct, or sustained by private security forces.)
For example, while a police officer gunned down in a firefight and a cop felled by a heart attack during training are both counted as in-the-line-of-duty deaths, the medical death is more incidental to the nature of police work. The job involves sudden bursts of adrenaline and exertion broken up by long periods of inactivity — a recipe for heart failure. Same with car accidents: Cops drive a lot, so it’s no surprise that some crash.
To help make the distinction, the website divides its on-duty cop deaths into felonious — e.g., shot, knifed, intentionally run over — and accidental: car crash, medical death, etc. When the accidental deaths are separated out, the stats look slightly less menacing.
There were four gunfire deaths among Texas officers in 2009. Norman Smith, of Dallas; Henry Canales, of Houston; Thomas Detwiler, of Chambers County; and Jesse Hamilton, of Pasadena. All were cut down by bullets while working their shifts as police officers.
Two other cops suffered violent deaths last year: A Corpus Christi officer, Stuart Anderson, was intentionally run over by a car as he attempted to set up a tire-popping stop strip; and Randy White, a Bridgeport cop, was hit and killed by a suspect fleeing in his car.
Breaking out the numbers also puts 2009 in larger perspective, danger-wise. In 2007, 10 officers died from gunfire (one accidentally, at a firing range), including three who were killed in a single incident in Odessa. Four other officers were killed in what were classified as vehicular assaults. A state parks warden drowned while trying to recover a body.
Meanwhile, 2000 saw the greatest percentage of felonious deaths; 12 of 15 — 80 percent — line-of-duty police deaths that year were either the result of gun fire, stabbings or vehicular assaults (one officer died as the result of on-the-job injuries he received 14 years earlier).
More numbers: Three police died of gunfire in 2008, four in 2006, six in 2005 (two accidental), three in ‘04, two in ‘03 (one stabbed), five in ‘02 (one accidental), 10 in ‘01 (two accidental), eight in 2000. Twenty three officers in all died this decade as the result of intentional vehicular assaults, or while pursuing bad guys.
The latest Austin police officer to die in the line of duty? Amy Lynn Donovan, who was accidentally run over in 2004 by another officer while she was chasing a suspect on foot.
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Foundation gives money for boarding house reform
This summer we wrote about how some boarding homes take advantage of the elderly and mentally ill. Although many cities have the ability to regulate the homes, most don’t.
A state law passed earlier this year gives cities the legal framework to take a more active role overseeing the homes. Today, the Mental Health America of Texas announced it has received a donation from the Hogg Foundation to help with that. Here’s an edited version of the press release:
Mental Health America of Texas and six affiliate chapters will work with Texas policy makers to write new model regulatory standards for boarding houses and promote their adoption in six Texas communities, with the help of a $96,769 grant from the Hogg Foundation for Mental Health.
Texas state agencies don’t have the authority to inspect or regulate boarding homes, except in individually reported and investigated cases of abuse, neglect or exploitation. Cities and counties do have that authority, but most have not exercised it, according to Lynn Lasky Clark, Mental Health America of Texas president and chief executive officer.
“People with low incomes and disabilities often turn to boarding homes as a last resort for housing,” Clark said. “However, many residents of Texas boarding houses have been financially exploited, exposed to hazardous conditions, and don’t receive the services and care they need, particularly people with mental illness who may have behaviors or other issues that prevent them from being able to use other housing alternatives.”
Clark noted that the problem has been chronicled in news reports and by advocates across the state. In response, the Texas Legislature passed House Bill 216 earlier this year. The bill requires the Texas Health and Human Services Commission to develop model standards for boarding houses and reinforces the authority of local governments to regulate them. The goal is to protect the health and well-being of boarding house residents and provide housing opportunities that support recovery and rehabilitation of people with mental illness.
Mental Health America of Texas will take part in the public process of drafting state model regulations and will encourage consumers and their families to participate in the state and local regulatory processes. Affiliates in Abilene, Beaumont, Dallas, Fort Worth, Houston and Stafford will work with city and county public officials to encourage and assist in establishing local licensing and regulation of boarding houses.
“A safe, supportive place to live is crucial to good mental health. Yet, too many Texas residents with mental health conditions lack decent housing,” said Dr. Octavio N. Martinez, Jr. executive director of the Hogg Foundation. “We are funding this project because it seeks to address a serious problem that is also an obstacle to recovery for many.”
The Hogg Foundation was founded in 1940 by the children of former Texas Governor James Hogg, to promote improved mental health for the people of Texas. The foundation’s grants and programs support mental health consumer services, research, policy analysis and public education projects in Texas. The foundation is part of the Division of Diversity and Community Engagement at The University of Texas at Austin. Mental Health America of Texas, is the oldest citizens’ mental health advocacy and education organization in Texas. Founded in 1935 as a non-profit 501(c)3 organization, Mental Health America of Texas reaches out to communities across Texas to promote mental health, prevent mental disorders, and improve the care and treatment of people with mental illnesses through education and advocacy.
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More on Sterquell’s “suicide”
Why is the family of controversial affordable housing developer Steve Sterquell challenging the official determination that his death last April in a fiery car wreck was a suicide? This morning, their lawyers responded.
In my Friday Focal Point post, I wrote about how Sterquell’s wife, son and daughter had recently filed a series of petitions in federal court in Amarillo questioning the official finding that the American Housing Foundation founder had taken his own life. In his May 15, 2009, report, the state fire marshal cited as supporting evidence for the suicide conclusion: a witness who claimed to have seen flames in the Lexus’s passenger compartment moments before it slammed into a bridge abutment; a strong smell of gasoline inside the car; what appeared to be gas cans inside the vehicle; and emerging evidence that Sterquell’s AHF empire was beginning to crumble.
But in a series of court filings based on a report written by an Oregon fire investigations consultant, the family is questioning the government’s finding. In one filing, for example, the consultant, Dean Bundy, noted that Sterquell’s autopsy turned up no evidence that he’d breathed super-heated air prior to the crash: His blood contained no carbon monoxide and his lungs had no soot.
Based on interviews with family members, Bundy also asserted that Sterquell was carrying gas canisters in his automobile to refuel his boat — not as a suicide tool. He raised the point that accident-scene investigators never found a match or other “incendiary device;” and hypothesized the gas cans could have been ignited by the vehicle’s seat-warmers.
Finally, Sterquell’s family questioned the fire marshal’s assertion that the developer’s financial problems indicated he killed himself. The relatives describe that as “hearsay,” claiming there was no way the state investigator could have had any detailed knowledge of AHF’s finances.
The big question, though, is: With more than a dozen lawsuits pending in the wake of Sterquell’s death, why would the family spend time and money trying to prove the non-profit developer died accidentally?
One obvious reason would be to influence the payout of an insurance policy whose terms included a suicide prohibition. But the family has relinquished its claims on about $21 million in corporate insurance policies. And, in a call this morning, Sterquell family attorney Larry Ginsburg said none of the policies’ payouts hinged on manner of death, anyway.
Rather, Ginsburg explained the manner-of-death challenge as both a legal tactic and an emotional necessity for the family. “Steve’s wife has had to deal with this from day one,” he said. “She’s not a businesswoman. Everyone’s saying Steve committed suicide. If you had to live with that, particularly in Amarillo, that’s a problem. The record needs to be clarified.”
Yet there are also legal reasons to get Sterquell’s suicide changed to an accidental death, Ginsburg said. The challenge is part of a request in one of the lawsuits against AHF for a partial summary judgment. In that filing, Sterquell’s suicide is portrayed as a fact. Thus, Ginsburg explained, should the summary judgment be granted as now written, the developer’s cause of death will essentially be set in stone for all future legal proceedings: “If the court made that finding, various plaintiff’s could then use that” against the family.
Ginsburg declined to say what those future legal actions might look like. But, he concluded: “Steve was a strong-enough guy that he could’ve worked his way through” the foundation’s financial travails.
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Was developer’s death really a suicide?
The death of affordable housing developer Steve Sterquell in a fiery car crash eight months ago has created a legal and accounting nightmare, as attorneys struggle to sort out the tangled finances of American Housing Foundation, the not-for-profit company he founded in 1989. At last count, more than a dozen federal and state lawsuits were unwinding in Amarillo, where AHF was based. Several contain accusations that Sterquell mismanaged investors’ money.
A series of recent court filings, however, are especially intriguing. In them, Sterquell’s family contends that he did not intentionally kill himself, as determined by the State Fire Marshal’s Office.
Sterquell died on the morning of April 1 when his Lexus SUV slammed into a concrete bridge abutment outside of Amarillo. According to the May 15 report from the fire marshal, written by investigator Kelly Vandygriff: “The vehicle was immediately consumed by fire killing the adult male.”
The report continued: “A witness stated that he observed a large fire in the passenger’s front seat of the vehicle a couple of seconds prior to the vehicle striking the concrete pillar. The vehicle burst into flames prior to the fuel tank of the vehicle rupturing.”
On-scene investigators also reported “a strong smell of gasoline … inside the vehicle.” Later, they reported, “We discovered what appeared to be the remains of two plastic gasoline containers.”
The marshal’s conclusion: “The fire and accident were determined to both be intentional acts to end his life.”
But in a series of filings, dated late November and early December, family members question the validity of the state’s findings. Their challenge is based on the review of an Oregon-based private fire investigator.
“I have seen no scientific evidence that would support a finding by a qualified fire investigator that this was an incendiary fire,” Dean Bundy wrote in a November 30 affidavit. “In my opinion, the ‘origin and cause summary’ in the Vandygriff report is not based on scientific evidence.”
Bundy pointed out, for example, that Sterquell was determined to have died from blunt force trauma, with no evidence that he sustained heat-related damage to his body prior to the crash: “The Pathology Report shows there was no carbon monoxide in the deceased’s blood after his death. The Pathology Report states there was no soot deposition in the deceased’s lungs. I see no indication in the Pathology Report of internal thermal injuries.
“The conclusion I draw from those findings is that the deceased was not alive while a fire burned within the interior of his vehicle.”
What Sterquell’s family hopes to gain from challenging the fire marshal’s suicide finding is unclear. Insurance claims can turn on the cause of death. And Sterquell had taken out several “key man” life insurance policies totaling more than $20 million that have been subject to dispute because the beneficiaries appeared to have been altered in the weeks leading up to his death, to the benefit of family members.
Yet in court filings the family members have since given up their claims to those policies. Michael Powell, a Dallas attorney for the family members, did not return a call to explain the new filings. So stay tuned.
In the meantime, the Sterquell/American Housing story is being covered like a blanket by Amarillo Globe-News reporter Kevin Welch; you can read the most recent update of his here.
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How accurate are weather forecasts?
With the newsroom a beehive of weather-reporting activity today, Focal Point has felt a bit left out: What could our crack investigations team possibly add to the forecasts and snow observations already being blogged, tweeted, posted and gossiped about every few minutes?
Given the early predictions of up to two inches of snow yielding to the much more modest dusting now predicted to hit Austin, we decided this is a good time to briefly examine the accuracy of weather forecasts.
First, a couple of weatherman-friendly caveats. It’s probably fair to say that incorrect meteorological predictions get disproportionate attention. When a spot-on prediction of temperature and precipitation does hit the mark, no one really notices. Second, even the cockiest of weather guys (and gals) will concede that, despite big advances in weather-prediction technology, nailing a forecast anything more than a couple days out is little more than educated guesswork.
That said, a few studies have tried to ascertain the accuracy of weather forecasts. Generally, they are not all that flattering. At the bottom of this post you’ll find a couple of Austin-specific sites to explore.
First, here’s a fun study published on the ever-entertaining Freakonomics blog last year. In the course of helping his daughter with a science project, Missouri engineer J.D. Eggleston noticed how dramatically the TV weathermen’s extended forecasts changed over the course of a week; and, worse, how unhelpful they often were.
So over seven months in 2007, he taped each of the weather forecasts from Kansas City’s four TV stations, and then compared the predictions to what actually happened.
Conclusion No. 1? “Meteorologists take a blind stab at what the high temperature and rain possibilities might be seven days out, and then adjust their predictions on the fly as the week goes on.”
Over the course of a seven-day forecast, “The Kansas City television meteorologists will change their mind from 6.8 to nearly nine degrees in temperature and 30 percent to 57 percent in precipitation, showing a distinct lack of confidence in their initial predictions as time goes on.”
One unfortunate weatherman “on Sunday, September 30th predicted a high temperature of 53 degrees for October 7th, and seven days later changed it to 84 degrees — a difference of 31 degrees! It turned out to be 81 that day.”
Predicting precipitation was even dicier, Eggleston found. His criteria was if a weatherperson predicted the chances of rain at 50 percent or higher and it rained at least a tenth of an inch, the forecast would get credit for accuracy. Using that standard, “Stations get their precipitation predictions correct about 85 percent of the time one day out and decline to about 73 percent seven days out.”
That might seem like a pretty good batting average. But, Eggleston also points out: “Consider that if a meteorologist always predicted that it would never rain, they would be right 86.3 percent of the time.”
But, of course, you’re probably more interested in Austin. Helpfully, there’s a company out there that measures forecast accuracy by location! Forecastadvisor.com, an Ohio consulting company that advises businesses that depend on weather predictions (utilities, energy companies, for example), studies forecasts of major weather-predicting outfits and then compares them to results. It also breaks them down by location. Here are Austin’s results.
The upshot? The National Weather Service, the federal agency the Statesman often relies on, was correct about 77 percent of the time last year, ranking it about 5 percentage points behind The Weather Channel’s forecasts. Here’s another factoid:
“9.2% of National Weather Service’s high temperature forecasts for Austin were exactly right last month.”
Want even more details? Click on this to find very specific information on how accurate weather forecasting agencies were when it came to predicting Austin’s weather.
Finally, if you want even geekier info, here’s a more technical study by Forecastwatch.com, which is affiliated with Forecastadvisor. In it, the company compared the accuracy of precipitation (POP) forecasts of four large weather-predicting services over a nine-month period. Though somewhat technical, the study evaluated a forecast’s accuracy and what’s called resolution — the accuracy of precipitation probability predictions, while taking into account how often rain or snow normally occurs. The study collected and evaluated about 750,000 POP forecasts from 800 locations.
The results? Of the four meteorological reporting services studied, the least accurate was the federal government’s National Weather Service.
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How safe are on-base military personnel?
With the shooting deaths of 13 people at the Fort Hood army post in Killeen last month by alleged killer Nidal Malik Hasan, people might worry that military bases are common locations for murders. After all, bases are by definition filled with guns and people specifically trained to use them.
But the reality is they aren’t, really. The numerical evidence comes from a newly released report from the Bureau of Labor Statistics, part of the U.S. Department of Labor, that tabulates fatal injuries to residents of U.S. military bases between 2003 and 2008. (You can read the whole thing here.)
The conclusion: Overall, bases are slightly more perilous than the average U.S. workplace — but not overwhelmingly so. And, as is the case with some other other occupations commonly thought of as uncommonly dangerous (think firefighting and police work) what at first appear to be frightening numbers are heavily skewed by non-violent deaths (think airplanes and helicopters).
First, the big picture. According to the study, an average of 60 military base residents a year were killed from 2003 to 2008. (Texas ranked second in total deaths over that period, with 33; California was first with 78). The 53 reported deaths in 2008 were the second-fewest during in the period studied. The most was in 2004, when 71 base residents were killed.
How do those numbers compare when you add in population size? The study reports that “in 2007, the fatal injury rate for members of the resident military was 5.5 fatalities per 100,000 employed workers compared to the all worker rate of 3.8.”
That suggests military bases are dangerous places. But according to BLS data (look here) other occupations are far more hazardous. At the top of the list is fishing, which in 2008 had a terrifying fatality rate of 129 per 100,000. Coming in a close second was logging, with a 115.7 per 100,000 fatality rate. (Last year the bureau began calculating death rates by hours worked instead of number of workers and so now excludes military personnel, who are on-duty 24/7, from its comparison rates.)
Nor are military bases, even with their guns and PTSD-afflicted soldiers, especially murderous. Most deaths — 61 percent — stem from transportation-related incidents, with aircraft crashes responsible for the majority, according to the new BLS report.
The second-most common fatal incident is what the study labels “assaults and violent acts,” which accounted for 61 deaths over the six years, or about 10 a year. But a closer look reveals that more than 90 percent of the time, the violence causing the death was self-inflicted — a suicide.
The conclusion? Only 5 percent of the violent deaths that occurred on military bases — or about one murder every two years — were homicides.
Sadly, when 2009’s numbers are tabulated, they will show a dramatic departure from this pattern.
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Readers relate tales of debit card woes
Since we published our Sunday story on the state’s foot-dragging in allowing unemployed Texans to receive their benefits by direct deposit instead of via debit cards, several readers responded with their own stories of frustration. As do 90 percent of state employees, they prefer direct deposit because they already have personal bank accounts they’d rather use to pay their bills instead of dealing with a separate account.
Unlike most states, since 2007 the only way the Texas Workforce Commission distributes unemployment benefits is via debit cards issued by JPMorgan Chase. While Chase offered to provide direct deposit of benefits as part of its contract with TWC, it didn’t happen.
“I was taken back when I was sent a debit card to access my benefits,” wrote Sherry Powell, 64. “My first problem was accessing the funds and then transferring the money to my own bank to pay my bills. Ever try paying your house note with a debit card?”
While the cards can also be used to make cash purchases, Powell expressed a common concern about privacy: “I refuse to use the card for any type of purchase. That is “Big Brother” watching every penny you spend when you are receiving unemployment benefits.“
So, ever since she lost her job in 2008, Powell follows the same drill every two weeks, when her benefits are deposited in her debit card account: She drives to a Chase branch, parks, goes inside to stand in a teller line (the bank requires her to, she said), withdraws the entire balance and then takes it to her own bank two blocks away. One free teller transaction is allowed each time TWC deposits benefits; subsequent ones cost $5. But Powell said it’s the only way to get the entire deposit in one fell swoop, due to limits on cash withdrawals at the branch bank’s ATM machines.
“Every time I went in, the teller would ask me, why don’t you open an account here?” Powell said. She always demurred. But when she traveled to visit her ailing mother in Ohio, where her own bank had no branches, she finally relented.
Randy Miller, a 37-year-old former manager at a web-based software company, reported his own difficulties when trying to take his benefits in one lump sum. Using Chase’s online “bill pay” option for TWC debit card holders, he tried to pay the entire amount of his unemployment compensation ($862) to his wife’s Chase bank account. While regular Chase customers are not charged for online bill payment, the service costs TWC debit card holders 50 cents each time they use it — meaning the transaction would have totaled $862.50. (Miller didn’t know this at the time.)
He was surprised by what happened next: “What I got instead was a denied transaction and a dollar fee … I’m having to go to the ATM to take out large stacks of 20s in order to get my money.”
You can read about Miller’s experience here on his blog.
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David Dow called before appeals court; Judge Keller absent
Lawyer David Dow was called before the Court of Criminal Appeals on Wednesday to explain why he blew a court-imposed deadline when he filed an appeal within 48 hours of his client’s execution.
The inmate, Danielle Simpson, was executed Nov. 18, but he wasn’t the reason a small crowd gathered at the Supreme Court building near the Capitol, where the state’s highest criminal court typically toils in obscurity. The reason had to do with another death row client of Dow’s, Michael Richard.
Richard was never mentioned at the Wednesday hearing, but his presence was felt. Keller, still fighting the charges that could cost her job, did not participate and will not join the court’s opinion — to be issued at a future, unspecified date, said Judge Lawrence Meyers, who directed the proceedings in Keller’s absence.
Available sanctions against Dow include a contempt of court finding, which could include a fine and a disciplinary complaint to the State Bar of Texas.
Dow blamed the missed deadline on a conflict with Simpson’s court-appointed lawyer, Wes Volberding, and on what was described as Simpson’s increasingly erratic behavior. Simpson variously asked for the Texas Defender Service to replace Volberding and directed Volberding to abandon his appeals, said Dow’s lawyer, University of Texas law professor Jordan Steiker.
When it was sorted out, Dow and co-counsel Katherine Black received Volberding’s case files — in 15 poorly organized boxes — only nine days before Simpson’s execution date, Steiker said.
At first, Dow and Black anticipated filing a petition stating that Simpson was ineligible for execution because he was mentally ill. But a review of the files found another potential claim — that prosecutors had improperly excluded black jurors at Simpson’s trial for kidnapping and killing an 84-year-old Anderson County woman in 2000. Simpson was black.
Additional death row visits to assess Simpson’s mental health further delayed the appeal, Steicker said, adding: “This is not a case in which the lawyers were sitting on this claim for months or years.”
Several judges, including Cathy Cochran and Michael Keasler, noted that the juror claim had already been raised — and denied — in an earlier appeal. Dow agreed but said he believed a later court ruling opened the door for another try.
The Court of Criminal Appeals imposed the deadline — which bans death penalty appeals filed less than 48 hours before an execution unless accompanied by an affidavit explaining the delay — in June 2008, in the wake of vocal international criticism over its handling of the Richard appeal.
Only one other lawyer has missed the 48-hour deadline, Kevin “Gator” Dunn of Houston, and he too was called before the court to explain his tardiness, said Sian Schilhab, the court’s general counsel. The court chose not to sanction Dunn.
As for Keller, she continues to await state District Judge David Berchelmann Jr.’s findings of fact, which will be based on testimony from her four-day August trial. The State Commission on Judicial Conduct plans to hold a public meeting on the findings, then discuss them in private before choosing among three courses — exonerate Keller, reprimand her or suggest that she be removed from office.
A removal recommendation would be sent to a specially formed panel of seven state appellate-court judges.
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Latest comments
Hays County, I hope you take the guru’s passport away next time he steps in the country and ground him in USA before the next hearing. He’s probably over there in India overseeing the construction of two more lavish temples he started, -
... read the full comment by Lie Finder | Comment on Swami lawyers ask for another delay Read Swami lawyers ask for another delay
Its happened before more than once that barsana officials and members have actually tried intimidating the Statesman and attacked them for publishing the “bad” news surrounding BD. Members who would very much like to cover up what they know
... read the full comment by Lie Finder | Comment on Swami lawyers ask for another delay Read Swami lawyers ask for another delay
Surprised — if you are not connected, why are you making a big deal about nothing. I suggest Prakashanand come back to the U.S. and get his criminal trial over with.
... read the full comment by Seeking Truth | Comment on Swami lawyers ask for another delay Read Swami lawyers ask for another delay
My point is if statesman is to be legitimate source of news, it shouldn’t “guess” the news (as you said) - it should present only facts. I request statesman to set standards and present only facts in future. There are too many holes in
... read the full comment by Surprised | Comment on Swami lawyers ask for another delay Read Swami lawyers ask for another delay
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