Saturday, May 17, 2008

Ffinding reasons to search cars and trucks; The roads are also a goldmine for the local law enforcement officials who patrol them.

Highway Robbery

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Highway Robbery

One man’s painful journey through South Texas’ addiction to asset forfeiture.

Jan Reid | May 16, 2008 | Features

On October 20, 2005, Javier Gonzalez, sporting baggy shorts, T-shirt, and a shaved head, took off from Austin toward Brownsville in a used Mazda. At the time, he worked for an Austin auto dealer performing minor body-shop repairs and the occasional car sale for the owner, who had loaned him the Mazda. Along with changes of clothes Javier carried $10,032, most of it in $100 bills, in a black gym bag that he made no effort to conceal.

Javier, who was then 30, is the son of Mexican immigrants and an American citizen. He was born in the Rio Grande Valley and grew up in Austin. On a melancholy errand that day, he hoped to see his ailing aunt, María Martinez , who had helped raise him, before she passed away. He was taking the money to secure arrangements for her funeral: a proper coffin; her burial, as she wished, across the river in her native Mexico; and a nice tombstone. Most of the money was his own, Javier says, withdrawn from his Austin bank account. The rest came from relatives.

Other travelers might have converted that much money to a cashier’s check or wired it to a financial institution in Brownsville, but Javier saw no need. Traveling with him that day was a friend named Christopher Clifford, who also wore baggy shorts and a T-shirt. Originally from small-town Kentucky, he was just along for the ride. It was a clear day as they passed through San Antonio, then followed Interstate 37 toward Corpus Christi and took the U.S. 281 exit near Three Rivers. The road toward the border winds through the Nueces River bottom for a few miles with the Choke Canyon Reservoir nearby. “You know,” Javier said later, “some days you’re driving down that highway, and you think, ‘It’s nice down here. It’s pretty. I might come back.’” But the passage into deeper South Texas put him on edge, as it often did. “It’s different down there, that’s all there is to it. It’s still Texas, but it’s different.”

Two long rural highways provide the most direct connection between the state’s major population centers and the Valley. U.S. Highway 77 skirts the coastline from Houston, Corpus Christi, and Kingsville and drops south through Kleberg and Kennedy counties—King Ranch country—toward Harlingen. Twenty-odd miles to the west, on an almost parallel track, U.S. Highway 281 routes traffic from San Antonio and populous points north through and around Alice, down through the chaparral of Jim Wells and Brooks counties toward McAllen. These two highways are undisputed circuits for the transport of illegal drugs, the money that pays for the drug traffic, other items of contraband such as cars stolen in Texas and bound for sale in Mexico, and undocumented Latin American immigrants. The roads are also a goldmine for the local law enforcement officials who patrol them.

Under the Texas Code of Criminal Procedure’s Chapter 59, “Forfeiture of Contraband,” personal assets seized by officers during the investigation of possible felonies and a wide range of misdemeanors become the property of the municipalities and counties in which the apprehensions occur. As these are civil seizures, the law provides for hearings in state civil court, where confiscations can be challenged and property recovered, but the Legislature did not make it easy. For example, an acquittal or dismissal of charges does not necessarily mean the confiscation will be overturned. Partly because of its proximity to the border, nowhere in Texas has what is commonly known as asset forfeiture been put to greater use than on U.S. 281. Since the passage of the provision in 1989, Chapter 59 seizures have become essential to the operating budgets of cash-strapped rural counties.

In 2006, a Jim Wells County deputy named Ray Escamilla was lauded as the nation’s leader in captures of “drug seizure money.” Over four years, the deputy sergeant racked up more than $3 million by working the traffic on U.S. 281 and finding reasons to search cars and trucks. His seizures of suspect cash and several vehicles enabled the sheriff’s department in the tax-poor county to pay the salaries of additional officers and buy patrol cars, guns, SWAT gear, and four dogs trained to find bombs and drugs.

Into this dynamic rolled Javier Gonzalez on that fall day three years ago.

After Javier left the interstate, the enjoyment he felt driving on U.S. 281 through the bottomland of the Nueces River lasted until they came to the first town, George West. “Young Hispanic officer,” Javier recalled. “Whatever I did, he stayed right behind me, then the lights came on, so I pulled over in the lot of this store. He asked for my license, insurance, and registration, then said, ‘I stopped you because you don’t have a front license plate on your vehicle.’” (Auto dealers and thousands of Texas motorists harbor the erroneous belief that a license plate on the front bumper is optional, and the fiction endures because many officers don’t bother to make a stop for that.) “I told him the car belonged to the man I worked for,” Javier said, “and showed him that I had the plate inside, on the dashboard. Those Mazdas don’t have any place on the bumper where you can screw the plate on. Officer asked me, ‘What do you do in Austin?’ I told him, and he said, ‘You know, it’s nice to see a young Hispanic male doing well in the world. You don’t have any knives, guns, ammunition, or large amounts of money, do you?’

“So, there it is. I’ve got to say, ‘You know, I do. I’ve got several thousand dollars to pay for a funeral in a bag back [in the trunk].’

“‘You do? Well, let me see it.’”

Javier wasn’t required to submit to that search, but he wasn’t aware of that. “The officer wrote me a warning ticket for not having the license plate on the front, then he said, ‘Have a nice day. You’re free to go.’ He let me go!”

About an hour of driving passed, interrupted briefly when Javier got hungry and ran into a store to buy some road food. Between Alice and the little town of Premont he picked up another tail — this one a sedan occupied by two officers with the Jim Wells County Task Force.

Only a few weeks earlier, on October 7, state Sen. Juan “Chuy” Hinojosa had been stopped on that same stretch of U.S. 281 in Jim Wells County and was cited by an officer with the South Texas Specialized Crimes and Narcotics Task Force for swerving on the roadway and driving an SUV with windows that were tinted too dark. The ensuing argument with the officer, in which the senator believes he was a victim of ethnic profiling, led to a crusade by Hinojosa in the 2005 Legislature to force multi-county task forces to accept supervision by the Department of Public Safety. As part of the War on Drugs these multi-county task forces operated independently and were funded by a governor’s office pass-through of federal Byrne Justice Assistance Grants. Cosponsored by Democratic state Rep. Terri Hodge of Dallas, Hinojosa’s bill—which did not affect Chapter 59 of the criminal code—prohibited the governor’s Criminal Justice Division from awarding federal grants to multi-county task forces that were functioning as stand-alone law enforcement agencies. Following the scandal that consumed one of these task forces in the Panhandle, a sordid tale uncovered by Nate Blakeslee (see “Color of Justice,” June 23, 2000), Gov. Rick Perry had already eliminated funding for almost all of these region-wide operations in 2006. Recently, the president of the Texas Panhandle Peace Officers Association has called for their return: “It’s like chopping off an arm,” he complained to the Lubbock Avalanche-Journal.

The regionwide task forces are unlikely to return in anything like their previous form, but the law co-authored by Hinojosa and negotiated by Perry’s staff authorizes the governor’s office to continue awarding grants approved by the DPS to task forces made up of law enforcement agencies within a single county. Austin’s Scott Henson, a widely read criminal justice blogger, says that scuttling most of the regionwide task forces significantly reined in abuse of highway interdictions and Chapter 59 confiscations. “But what happens, especially in South Texas, is that some of these county jurisdictions have come to rely on confiscations as a way to supplement their budgets.”

Between 2005 and 2007, according to county reports submitted to the Attorney General’s office, agencies along Highway 77—the Kingsville Crime and Narcotics Task Force, the Kleberg County sheriff, a Kleberg County constable and the Kenedy County sheriff—reported total assets from forfeitures and seizures of $4,486,938. They returned only $41,920 to defendants who appealed through the civil process. (The reports to the state do not describe how seized money was spent.)

During the same period, on U.S. 281, the Jim Wells County sheriff and allied police departments of Premont and Orange Grove reported total assets through forfeitures and seizures of $2,027,736. In neighboring Brooks County, south on U.S. 281, the sheriff’s department reported assets of $1,777,649. Sharing in this wealth of income was Frank Garza, the 79th district attorney, who serves both Jim Wells and Brooks counties and defends the counties in court. Garza’s office saw to it that none of the properties were returned on appeal.

The two Jim Wells County Task Force officers wore their uniforms and the car bore the colors and insignia of the sheriff’s department. “I move over to the right to let someone by, and the guy stays right with me,” Javier remembers. “I speed up a little to pass up a truck, zoom, he comes around and is right back on my bumper.”

The patrol car was equipped with a video camera on the dash. It videotaped everything that occurred between the patrol car and the Mazda, and a fair amount of the conversation was audible, though the traffic was heavy. A burly sergeant named Edward Valadez approached Javier and told him to get out and follow him to the space between the cars. The second officer positioned himself near the patrol car’s right headlight. “Where you headed?” Valadez demanded, after looking at Javier’s license and insurance. “You don’t have a driver’s license?” he barked into the car at Clifford. “ID card? You don’t have a photo ID or what?”

Valadez paced around the back of the Mazda. “How do you know this guy?” he asked Javier, referring to Clifford, keeping up his interrogation as he looked inside the car. “You’re not on probation or anything, are you? Ever been arrested before?” He gestured at a spot on the highway shoulder. “Just stay right there, okay?”

The sergeant told Javier that he’d been stopped because of the missing front license plate. For the next few minutes, Javier tried to explain why the plate was on the dash and who the car belonged to; he kept trying to get Valadez to look at the warning ticket he’d gotten in George West.

Just as the George West officer had done, Valadez asked Javier if he had any knives, guns, ammunition, or large amounts of money. For the second time in an hour, Javier acknowledged having several thousand dollars in the car.

As soon as Javier said that, the officer’s change of expression and body language could clearly be seen on the videotape. A backup patrol unit veered around to a halt in front of the Mazda. A uniformed officer hustled out of the car with a look on his face that that did not appear friendly. A stunned Clifford was ordered out of the car and told to spread his legs and put his hands on the Mazda’s hood. An officer patted him down.

Valadez walked past Javier stretching a cord that, it turned out, was a leash. The officer came back into view with a dark-ruffed German shepherd. He told Javier to empty his pockets, and when Javier did that, producing a small fold of dollar bills, the dog made a lunge at his hands.

The dog’s lunge was a critical component in the officers’ assertion that they had probable cause to proceed.

“Good boy,” Sergeant Valadez commended the German shepherd, after it had sniffed out the trunk. Someone produced a battery-operated wrench or screwdriver to loosen a panel; the shrill whine rose above eighteen-wheelers driving past.

On the tape, Javier didn’t move a step as they proceeded with the search. He looked around, he watched the traffic, he glanced at his watch, he tried to carry on a conversation with the one officer standing nearby. Now and then the officer replied.

Judging from the number of officers who soon prowled the scene, a second backup unit must have pulled up to the rear. Eighteen minutes after Valadez followed the Mazda to a halt on the shoulder and turned on the camera, the posteriors of several hefty officers were arrayed on both sides of the Mazda; the German shepherd squeezed between them to get in on the hunt. When they found the gym bag and opened it, the dog gave the bucks a few sniffs then looked around, panting.

The practice of asset forfeiture has received criticism from both the right and left. “Our focus is not the civil liberties scope of the issue,” says Marc Levin, a policy analyst with the Austin-based Texas Public Policy Foundation. “We’re concerned more with fiscal integrity and transparency of government. We don’t object to these funds being used to help make law enforcement safer and more effective, but we’re seeing a tendency in some prosecutors’ offices to employ them as slush funds—using them to pay for booze and parties and favors to political cronies.”

“There are two large problems with these laws,” says Scott Bollock, an attorney with the libertarian-leaning Washington, D.C.-based Institute for Justice. “It’s one thing if property is confiscated as a result of criminal convictions. But it’s very different when these are civil confiscations. The property owner doesn’t have the same protections he or she would have if it were a criminal prosecution. Here the burden of proof is on the individual to get the property back. That’s investing way too much power in government. The second large problem is that the system creates a profit incentive for government to try to seize someone’s property. The money from these confiscations goes directly back to the police and prosecutors. It invites a kind of legal bounty-hunting.”

Yet the practice has become such an important contributor to local government budgets, particularly those of district attorneys, that legislators are loath to change the system. Oscar Garza, a retired colonel of the Jim Wells County Sheriff’s Department who lives in Premont, describes a situation that is more complex and nuanced than a cynical shakedown scheme under the guise of the War on Drugs. “In the mid-nineties,” Garza says, “working with a DEA officer I made the department’s first confiscation under Chapter 59. It was a residence that brought $324,000 into our budget. After that, as we learned more about it, the confiscations started paying for just about everything: our uniforms, firearms, bulletproof vests, cameras, radar and radio systems.

“For example, Jim Wells County budgeted the Department two patrol cars a year. We’d buy six or eight, go through them with just the wear and tear. In these smaller counties there’s just not enough tax base and budget. Our sheriff used the confiscation fund to put cameras and officers in our schools. Because of the fund the task force could have 15 to 20 officers working the roads on a given day. And they make some very good interdictions. But they’ve got to use street smarts, know how to be careful, how to work with their supervisors, and be sure they have witnessing officers and probable cause. They’d better have a little bit of heart. If they get hit with a civil rights suit, that’s going right up the chain of command. But it’s not just that. Not everyone on the road with currency is a crook! If someone gets charged with money laundering, that electronically goes straight to Austin, and now it’s part of that person’s criminal record. You can ruin lives. In 60 days they may get their money back through the civil appeal, but they’ve got to spend $5,000 on an attorney and worry themselves sick trying to get that felony charge expunged from their criminal records. And they’re thinking and saying, ‘What kind of country is this?’”

In the incident report detailing Javier’s stop, titled “Money Seizure,” Sergeant Valadez wrote, “While Mr. Gonzalez was talking to me, I noticed a tremble in his voice. When Mr. Gonzalez pulled his Driver’s License from his wallet his hands were trembling as he was giving me his license. … I noticed that both Mr. Gonzalez and Mr. Clifford appeared to be very uneasy and unsure of themselves, when they were speaking about their travel. … As I attempted to run my K-9 partner Ben III, and as I got my K-9 out of the patrol car, I noticed that he went directly to Mr. Gonzalez and was responding to a narcotic odor emitting from his person.”

Javier’s hands could not be seen moving on the tape, and whatever he said was inaudible. It could well be that the men were intimidated by the big sergeant and Ben III, the German shepherd, but that two-page report typed two days later would contain the only accusation that either of the two men had been using drugs.

Twenty-three minutes after the sergeant turned on his roof lights, Javier and his friend were handcuffed and taken in separate cars to the Premont fire station, where the suspects were questioned apart from each other and the Mazda was disassembled in an unproductive search for drugs and more money. A Jim Wells County deputy drove to the district clerk’s office in Alice with the arresting officer, a lieutenant named Carlo Tanguma, and returned to Premont with a brief notarized affidavit that the money was being seized as contraband.

Javier says that after he was served with this affidavit, one of the officers warned he was going to be charged with felonies including money laundering and possession of contraband, and that his employer’s car would be confiscated as well, if Javier did not sign an “agreed judgment” that forfeited all his rights to the $10,032. “I hadn’t done anything!” Javier says. “But now I was looking at going to jail. I’d have to make bond, I’d have to pay an attorney, I’d have to come back down there for a trial. So I signed it. The money, I figured they got that, it’s gone.”

Javier retained an Austin lawyer, who notified the veteran district attorney in Alice, Joe Frank Garza, that they were contesting the confiscation. Garza told him the 30-day deadline for contesting the seizure had expired.

Up to that point, power had resided with the confiscating officers and officials of Jim Wells County. But in pressuring Javier to sign the agreed judgment at the fire station in Premont, the officers of the county task force had made a key mistake. Chapter 59 reads: “A peace officer who seizes property under this chapter may not at the time of seizure request, require or in any manner induce any person, including a person who asserts an interest in or right to the property seized, to execute a document purporting to waive the person’s interest in or rights to the property.”

Javier’s attorney sought help from a veteran litigator in Austin named Malcolm Greenstein. The competing arguments moved back and forth in court for nearly a year, then the same district judge who had signed the agreed judgment told attorneys for Jim Wells County that they could not claim immunity from civil suit, and in August 2006 a San Antonio appeals court affirmed the order. Garza’s office then offered to return the $10,032 to Javier but declined to reimburse him for his attorney’s fees. At this point the plaintiff didn’t just want his money back. He was outraged. He wanted justice—call it vengeance if you want. He wanted damages. Working with another well-known trial lawyer, Joe Crews, Greenstein filed a civil rights suit in federal court in Corpus Christi. At one of the hearings, attorneys retained by Jim Wells County argued that the German shepherd’s jerk toward Javier when he pulled dollar bills out of his pocket verified the sergeant’s contention that Javier smelled like he’d been handling drugs, giving the officers probable cause to proceed. Judge Janis Jack replied that the canine lunge proved nothing, since virtually all currency in passing through cash registers, wallets, and hands absorbs scents that the dogs are trained to react to. She assigned an arbitrator and told the attorneys to seek a settlement of the case.

This winter and spring, while Javier Gonzalez’s civil rights lawsuit worked its way through arbitration, the district attorney of Jim Wells and Brooks counties, Joe Frank Garza, came under fierce political attack in his race for re-election over his management of Chapter 59 asset forfeitures. The accusations of his opponent, Alice attorney Armando Barrera, dovetailed with the broad policy objections articulated by critics like the Texas Public Policy Foundation. Barrera produced audits from the attorney general’s office alleging that between 2000 and 2006 Garza directed over $3.2 million in Jim Wells County Task Force forfeiture funds to his office. He alleged the money was used to pay for things like salary bonuses and travel. Chapter 59 confiscations became a key issue in the March election, and Garza, a 16-year incumbent, lost by about 400 votes.

Two weeks after the election, Javier Gonzalez traveled with Greenstein and Crews to Corpus Christi to meet with the court’s arbitrator and lawyers representing the other side. Since the incident on U.S. 281 three years ago, Christopher Clifford had moved back to Kentucky and Javier had prospered, opening a state vehicle inspection service on Austin’s outskirts called Rain or Shine. Greenstein told his client that in addition to winning damages in a settlement, they hoped to obtain a binding legal agreement that the authorities with a stranglehold on U.S. 281 would not use such tactics against other innocent motorists.

Javier laughed with some bitterness. “You’ve gotta be kidding! They’re never gonna give that up!”

The client was right. Greenstein and Crews won a tacit admission of wrongful detention and confiscation but not a promise to cease and desist, because the suit did not have class-action status—there was only one plaintiff. The settlement contained language by which the county denied all accusations, and in mid-April the commissioners’ court agreed to an award of $110,000 and payment of Javier’s attorney’s fees.

Javier’s Aunt María died on December 12, 2005, a few weeks after he endured the stop by the Jim Wells County officers. The news of her death came in the middle of the night. Family members in Austin packed in haste and left at once in a Suburban. Javier did not drive. They buried her, as she wished, on the other side. He hasn’t been back since. Now that he has won his settlement he could fly or take a long overland route and attend to the last detail nagging at him: a tombstone for her unmarked grave.

Austin-based writer Jan Reid is the author of 10 widely varied books, including The Improbable Rise of Redneck Rock (University of Texas Press), The Bullet Meant for Me (University of Texas Press), and with Lou Dubose, The Hammer (PublicAffairs).

Thursday, March 20, 2008


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Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).

Copyright (c) 1996 University of Notre Dame; Stephen B. Bright

The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.

Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.

Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.

Let's examine the needs and how individuals and institutions may respond to them.

Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.

This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.

Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.

As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.

As was pointed out recently by Steven Duke and Richard St. John:

Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.

There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2

But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.

Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.

Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.

I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.

As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.

But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.

The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.

In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.

And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.

Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.

As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.

Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10

Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.

It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.

One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.

Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14

But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.

This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.

There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22

Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24

Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26

Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.

Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.

And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29

In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.

And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.

Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.

The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.

If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.

Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39

The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.

Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?

Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.

Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.

But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.

I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.

But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.

Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.

Those are some of the challenges. What can we do about them?

It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.

Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.

A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.

Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.

Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.

Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.

But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.

But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.

I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.

It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.

You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46

Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47

I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.

We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.

A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.

There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.

Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.

We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.

I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.

Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.

We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.

And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.

And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.

I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:

I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .

Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51

That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.

I hope to see you in the courts.

. Charles Reich, Opposing the System (1995).

. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.

. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).

. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").

. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").

. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).

. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.

. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.

. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.

. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).

. Smith v. Bennett, 365 U.S. 708, 712 (1961).

. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).

. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).

. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.

. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).

. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").

. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.

. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.

. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.

. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.

. 372 U.S. 335 (1963).

. Anthony Lewis, Gideon's Trumpet 205 (1964).

. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).

. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.

. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.

. See Schlup v. Delo, 115 S. Ct. 851 (1995).

. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).

. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).

. Murray v. Giarratano, 492 U.S. 1 (1989).

. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.

. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).

. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.

. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).

. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).

. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).

. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).

. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.

. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.

. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).

. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.

. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.

. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).

. Id. at 267.

. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).

. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.

. Amadeo v. Zant, 486 U.S. 214 (1988).

. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).

. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).


Friday, December 28, 2007

Parkdale Bank: Ray Mc Murrey Is From Here, He Still Believes Like It Says In The Intro, "I'll be a straight-shooter & a square-dealer "& He Does "Reme

Parkdale Bank: Ray Mc Murrey Is From Here, He Still Believes Like It Says In The Intro, "I'll be a straight-shooter & a square-dealer "& He Does "Remember The Alamo"

"I'll be as hardy of mind as I am of body. I'll be a straight-shooter and a square-dealer. My family name will be sacred My word will be as good as any contract. I'll remember the Alamo. I'll stick by my friends. And I'll eat more chicken-fried steak."

"We do not win by replacing a corporate Republican with a corporate Democrat," said Mr. McMurrey, speaking to about a dozen supporters at an East Austin residence.

Ray told me this before he spoke at his Official Announcement to run against the Corporate Democratic Military Industrial Complex Candidate for Texas US Senator.

A very passionate candidate who is anything other than a fake or what some like to call a politician.

Ray is not a Politician and this is a very very positive attribute.

Dont get me wrong he is very well suited for the Senate and the diplomacy is there but there is a sternness that demands his respect kind of like the respect and command he possesses in the classroom. I think we can all agree, if he can handle our youth in the classroom he will do well for us in Washington.

Two more things

Remember the Alamo


Stay tuned for Jan 2 next year.

"We do not win by replacing a corporate Republican with a corporate Democrat," said Mr. McMurrey, speaking to about a dozen supporters at an East Austin residence.

Ray Mc Murrey is from Corpus Christi.

He tells us upfront of his progressive leanings and his disappointment in both of the Hegemonic Parties.

Hegemony,.... Watch the Movie "Hot Fuzz".

Tuesday, September 11, 2007

Texas Public Education Watchdog Authority: Why would Texas re elect a loser who ALWAYS votes against education and Texas children?

Texas Public Education Watchdog Authority: Why would Texas re elect a loser who ALWAYS votes against education and Texas children?

Why would Texas re elect a loser who ALWAYS votes against education and Texas children?

Cornyn poised in re-election fight to stick by Bush on taxes, Iraq
Republican seeking second U.S. Senate term next year is banking that voters will back him on stands he's taken.
Listen to this article or download audio file.Click-2-Listen

By W. Gardner Selby
Tuesday, September 11, 2007

For someone who proclaims his independence from the White House, U.S. Sen. John Cornyn of Texas can still sound like a cheerleader for President Bush.

Speaking to fellow Republicans in Fort Worth at a presidential straw poll recently, Cornyn staked a claim to re-election next year as a pro-war, anti-tax candidate who expects to match up with voter sentiments in his home state.

Ralph Barrera
(enlarge photo)

John Cornyn says he has differed with Bush some.


He stressed his support for the course Bush has set in Iraq and suggested that voters can rely only on Republicans to extend the tax cuts Bush made in his first term.

Two Democratic Senate hopefuls, San Antonio lawyer Mikal Watts and state Rep. Rick Noriega of Houston, are counting on voters to hold Cornyn accountable for Republican stewardship of Congress in the first four years of his six-year term.

"People will not rehire someone who has had bad plans replaced by more bad plans," Noriega said.

Watts called Cornyn a senator "who parrots exactly what he's told to say by this administration and Karl Rove," the former White House counselor.

Cornyn, who ran in 2002 as part of "Team Bush," said in an August interview that he has been a Bush ally on judicial appointments and the war on terrorism but that he has also parted with his friend on a few issues.

A Cornyn proposal to allow greater access to federal records has cleared the Senate without White House backing. Cornyn also is among senators at odds with the president by proposing to give states alternative ways of complying with the federal education accountability system that Bush started.

Also, he and Sen. Edward Kennedy, D-Mass., are seeking to grant the Food and Drug Administration regulatory authority over tobacco and ingredients including nicotine, a step yet to be endorsed by Bush.

This summer, Cornyn opposed the Bush-favored compromise on changes to immigration policy. The senator unsuccessfully offered an amendment barring felons and other offenders from legal residency.

He later called Bush tone-deaf on the issue. "I don't think he had any real concept of the public engagement on that issue," he said.

In Fort Worth, though, Cornyn said Bush was absolutely right to raise the specter of Vietnam when discussing Democrats' calls for a timed withdrawal of troops from Iraq.

If American forces leave prematurely, Cornyn said, the region will plunge into a humanitarian crisis, and unwatched terrorists will plot attacks. "Unless we get the job done, they will follow us here," he said. "And we've got to make sure that never ever happens again. Not another 9/11, not ever."

His Democratic opponents each noted that as young men, Cornyn and Bush didn't serve in Vietnam.

Noriega, a lieutenant colonel in the Texas National Guard, said, "Comparing Vietnam to the Middle East is like comparing apples to wheat; they are not in the same food group. Differences include geography, terrain, cultures, religion, technology, history of region, just to name a few. This is just another example of the unfortunate circumstance we face when we have leaders who have not walked the walk."

Watts said, "I don't think there is a plan for victory in Iraq. ... We have to stay in the region, but I don't think we should be standing around on street corners getting shot at while we observe someone else's civil war."

On the domestic front, Cornyn charged Democrats with planning not to extend tax cuts enacted at Bush's request starting in 2001. Barring congressional action, cuts of income, capital gains, dividends and other taxes will expire in 2011.

On Capitol Hill, the cuts are rated either Bush's keystone domestic achievement or a gift to the nation's wealthiest residents.

The nonpartisan Congressional Budget Office estimates that extending the tax cuts would cost the government more than $1.8 trillion through 2017.

Tax-cut advocates say such money rightly belongs to taxpayers.

Cornyn's take: Democrats will let into law the biggest tax increase in history.

"They're going to do it without a single vote unless we get the majority back," he said. "They're going to do it because the tax relief that we passed under President Bush back in 2003 will expire unless we make it permanent. And we have to get the majority back and keep taxes low and keep America growing."

Watts said he would review each tax cut one by one but opposes extending cuts for the wealthy as long as government runs a deficit.

Noriega called it "blatantly false" to forecast all the cuts vanishing.

Nationally, 52 percent of voters favored making the tax cuts permanent in a poll conducted this year by Moore Information, an Oregon-based research firm. Thirty-eight percent preferred to let the cuts expire, and 10 percent had no opinion.

Republicans and a plurality of independents supported making the cuts permanent. A majority of Democrats wished to see them expire.

About half of respondents agreed that the cuts should be extended only for households with annual incomes of less than $150,000. About a third of voters favored making the cuts permanent for everyone.

Jason Furman, an economist and senior fellow with the Brookings Institution, an independent research outfit, testified before the House Ways and Means Committee last week that extending the cuts would widen after-tax income gaps between Americans.

Furman said a best-case U.S. Treasury projection suggests an extremely slight impact on the economy, with extended cuts more likely increasing the national debt and reducing government savings.

An eventual need to repay the cuts, he said, would drive down disposable income as taxpayers see cuts in government programs or bumps in taxes to bankroll the cuts, leaving at least three in four households with lower after-tax incomes.

"There is no free lunch because, ultimately, the government faces a budget constraint," Furman said., 445-3644

Saturday, August 25, 2007

HEBBRONVILLE ~ On June 15, as one of the wealthiest and most reclusive men in South Texas was quietly dying at his ranch 35 miles from town..........

Ranch foreman is inheriting legal fight

Web Posted: 08/23/2007 01:31 PM CDT
John MacCormack
HEBBRONVILLE — On June 15, as one of the wealthiest and most reclusive men in South Texas was quietly dying at his ranch 35 miles from town, the lawyers were very busy.

The rich man's relatives, employees and attorneys were struggling for money and control, and time was short. A doctor had given the aging rancher less than 24 hours to live.

If Robert C. East, 87, were to die before they settled it, an even nastier legal fight likely would ensue.

East, a great-grandson of Richard King, founder of the fabled King Ranch, had no known descendants. He measured his worth in hundreds of millions of dollars and hundreds of thousands of acres.

A pioneering cattleman in his own right, he had spent most of his life deep in the Jim Hogg County mesquite with the cattle and vaqueros of his family spread, the San Antonio Viejo Ranch.

East worked on horseback well into his 80s, preferred border Spanish to English and answered to "Roberto." He so rarely came to town that even some older, lifelong Hebbronville residents had never met him.

"He was a very old-fashioned kind of guy. Very old times, and very, very private," recalled one East employee, who, like others, asked not to be named.

In late 2006, East's health began to fail. By late spring, weakened by pneumonia, he was malnourished, gravely ill and increasingly uncommunicative.

A closed-door court battle began in May, when some relatives pressed for a court-appointed guardian.

The foreman

At stake was East's welfare — and administrative control of his considerable assets. Since the entire estate would go to a family wildlife trust, the parties bickered over who would be in charge after his death.

The fight centered on Oscar Ozuna, the ranch foreman since 2001 who claimed he had East's full confidence, having been raised on the ranch and having worked for him off and on for decades.

But East's relatives saw Ozuna as a manipulative Svengali, claiming the foreman had cut East off from his family, neglected his health and property and taken over his affairs.

In the fall, East had put shaky signatures to a set of legal documents that greatly benefited Ozuna.

There was a long-term employment contract that paid Ozuna $11,000 a month.

Ozuna, ranch employee Carilu Cantu Leal and Celestino Canales, a local justice of the peace, became sole officers of the Robert C. East Management Trust, which would control his wealth after his death.

Another instrument authorized a $500,000 payout to Ozuna from the trust, payable at East's death.

A broad power of attorney was granted to Ozuna, Cantu and Canales in the event East became incapacitated.

In court filings, Ozuna said all these actions clearly showed East wanted him in charge.

"In naming Mr. Ozuna as his attorney-in-fact, Robert C. East thereby expressed his confidence and trust in Mr. Ozuna's ability to conduct (East's) business affairs and to care for (East) in health-related matters," said a document filed by Ozuna lawyer Preston Hendrichson.

Doctors who saw East last spring noted he seemed most comfortable when Ozuna and other familiar ranch hands were present.

But Ozuna was self-serving, not benevolent, some of East's nieces and nephews argued.

"As soon as he was hired, Oscar Ozuna and persons associated with him began a long and deliberate plan to isolate Robert Claude East ... (and) control the flow of information to Robert Claude East, and consolidate their control over Robert Claude East," reads one court motion.

His assets, the motion said, have "at best been mismanaged and at worst systematically plundered by Oscar Ozuna and his associates."

Neither Ozuna nor Hendrichson responded to requests for comment. Nor did Cantu and her lawyer, Frank Enriquez. Reached in Hebbronville, Canales declined to comment.

'Incapacity is total'

District Judge Alex Gabert, at the request of East's lawyers, made the court hearings and case file off limits to the public, and most of the parties have declined to comment.

Information is also scarce on the streets of Hebbronville.

"This whole thing is touchy. I can't talk. Everyone has got the mums," said one longtime East acquaintance.

But the secret legal drama can be glimpsed in court documents obtained by the San Antonio Express-News.

The key issue was East's mental competence. Some of his relatives argued that he had been legally incapacitated for months and desperately needed an independent guardian.

Ozuna, Canales and Cantu, as well as two lawyers who represented East, claimed he was still able to make important decisions.

"I believe he has capacity, but I am not saying he has total capacity," testified Paul Price, one of East's lawyers, in a May 21 hearing.

When a court-approved psychiatrist visited the ranch on May 30, he found East "essentially non-communicative" and in failing health.

"Mr. East is described by all interviewed as someone who preferred to have few if any visitors. His greatest pleasure was the day-to-day operations of his ranch," Dr. Mark A. Burns reported.

"It is also reported that he has had challenging relationships with various family members and is largely estranged from his blood relations."

As to East's mental state, Burns was unequivocal.

"In terms of decision-making capacity, Mr. East appears to be severely impaired ... He clearly meets the definition of an 'incapacitated person.' ... His incapacity is total and a guardian should be appointed," he wrote.

No guardian was appointed.

But on the same afternoon he approved a comprehensive agreement, the judge named an attorney ad litem, who assured the court that it was in East's best interest.

Secret showdown

When they began mediating in May, the parties were millions of dollars apart on a deal that would remove Ozuna and his associates from the picture.

Although a partial deal was reached in early June, leading to Ozuna, Cantu and Canales being banned from the ranch, by midmonth nothing was final.

The lawyers were growing anxious. If East were to die before an agreement was reached, the mediation would become void, leaving Ozuna and his associates still in charge.

On June 15, a Friday afternoon, Judge Gabert presided in blue jeans at an emergency hearing in Rio Grande City. Ozuna, the sole witness, testified East was of sound mind last year when he signed the critical documents.

"He was in his five senses ... He knew everything he did," Ozuna said.

Moments later, Gabert signed an order approving East's will, the comprehensive settlement and various other documents. At 4:40 p.m. the order was stamped by the district clerk.

All told, about $2 million of East's money changed hands, with Ozuna reportedly receiving nearly $900,000. Cantu and Canales together were paid about $325,000. The balance went to pay their attorneys.

In exchange, the three agreed to drop all claims to East's estate, renounce their powers of attorney and step down as officers of the charity due to inherit East's money.

The hush-hush deal — which some parties to the litigation learned about later — came none too soon. On Saturday, a Catholic priest administered the last rites and by early Monday East was dead.

Three days later, more than 150 people paid their last respects in a graveside ceremony at the ranch. A mariachi played, poetry was read and East was laid to rest near his parents and siblings.

But if East had forever secured the peace and privacy he loved, the legal wrangling was hardly over.

Ten days after his death, the office of Attorney General Greg Abbott — which oversees all charities — notified all the parties that a complaint had been received about the East case.

"The matter is under review to determine if it warrants an investigation," said Abbott spokesman Tom Kelley.

Late last week, a lawyer for Helen Kleberg Groves, one of East's cousins, asked Gabert to set aside his approval of the settlement because Groves and other parties weren't consulted when the final deal was hammered out.

The lawyer, Dick DeGuerin of Houston, also argued that East was likely "totally incapacitated" long before he died and should have had a guardian appointed to protect his interests.

The motion further noted that toxicology test results aren't in, so "the causes of Robert C. East's death have not been fully explored."

"We're not satisfied that all the facts are known," DeGuerin said later by telephone. "When you have five parties to a controversy and only three are in the room when the settlement is made, it just doesn't smell right."