Tuesday April 22, 2014

by David M. Gonzalez

Earlier this morning the United States Supreme Court announced the decision in the Michigan Affirmative Action case, Schuette v. BAMN.  David Gonzalez was interviewed by the Daily Texan this afternoon to help explain the decision and provide context for how this ruling may affect the current litigation in Fisher v. University of Texas currently before the Fifth Circuit (on remand).  The following are excerpts from his interview.

“Today the Supreme Court has embraced the political process’s promise that legislation passed to protect equal protection” –  (I am pausing for a moment to marvel at the unintentional and uncanny alliteration) – “performs what it alleges to do. The Court upheld Michigan’s ban on affirmative action, and given similar constitutional amendments in California, Washington, and Florida, delegates to each state the power to decide whether to implement or prohibit affirmative action.

I have three observations based upon today’s ruling.

First, the assumption in the case “that there was no infliction of a specific injury” is ironically juxtaposed against a groundbreaking book that has rocketed to the top of the nearly ever best seller list. Economist Thomas Piketty’s book, Capital in the Twenty-First Century, is a detailed look at 200 years’ worth of data on the distribution of income and wealth.  Piketty’s thesis is that the United States and the developed world are on a path toward a degree of inequality that will reach levels likely to cause severe social disruption.  While the United States was founded upon principles that reject royalty and inherited wealth in favor of economic self-determination, the data from the past two centuries shows that today, birth matters more than effort and talent.

Education is the fundamental tool to reverse generational poverty and inequality. If colleges in Michigan were overflowing with black and Hispanic students one could understand why programs encouraging minority applicants to attend college would be unnecessary. Unfortunately, the percentage of minority enrollment is woefully under the percentage of minority adults in the college-age demographics. Further, the prison population for these minority groups is over-represented. While Michigan’s law prohibiting affirmative action does not inflict a “specific” injury the way a poll tax or literacy test might, the law certainly does little to help remedy a problem 200 years in the making.

Second,  the majority opinion attempts to claim the moral high-ground by explaining that affirmative action’s “attempt to use race based categories carries the danger of perpetuating the very racial divisions the policy seeks to transcend.”

Transcend? We’re nowhere near transcendence – we’re in the trenches. I don’t know about you, but as an aging taxpayer, all I want is to make sure there are more kids with high paying jobs coming into the workforce so that we can keep the government afloat in the midst of monstrous deficits.  College graduates earn more money than high school dropouts, and I don’t care what color you are – I want our colleges stacked to the brim. I want more colleges than prisons. I want to beat back the flood of overqualified workers from India and Pakistan and China who our high tech industries keep hiring because there aren’t enough qualified Americans to do the work.

Will a race-based admission preference solve this? Probably not. But could it attract kids to college who might not otherwise thing they could hack it and end up being the next Einstein? God I hope so. We need more Zuckerbergs and Brins and Pages. (And I’ll even take college dropouts like Bill Gates or Michael Dell, for that matter).

But the very existence of this law begs the question: if there are so few Blacks and Hispanics enrolled in college, why would voters in Michigan need to enact these laws? Are the universities being flooded with black and Hispanic students? Are they applying – and being admitted – in record numbers?

Or are we debating about single percentage points?

This very issue calls into question the assumption of “transcendence” the majority opinion wishes to convey. It’s as if the majority is saying, “we’re trying to help all the black kids who graduated from college from being labeled as affirmative action babies” when, in reality, it’s exactly the kind of problem we should want to have. I am happy to deal with the consequences of too many kids in college. Then I’ll address the issue of racial “transcendence.”

Finally, it will be interesting to see how Texas will handle this. Undoubtedly, a bill prohibiting affirmative action will be the first thing filed during the 2015 Texas Legislative Session. However, given the political tightrope surrounding the immigration debate, and both political parties’ desire to court the massive Hispanic vote, it appears the Supreme Court has just given both parties a new wedge issue for the mid-term elections.”

Tuesday April 10, 2012

by Blake

The University of Texas School of Law (c. 1960’s)

This semester David Gonzalez is honored to be teaching a Trial Advocacy class to second year law students at the University of Texas in Austin.

Course Description:
Advocacy Survey and Basic Litigation Skills is designed for beginning advocacy students who are interested in exploring all areas of litigation.  Although the primary focus of the class is learning how to develop basic trial skills; the course will cover topics such as the art and theory of persuasion, motion practice, mediation, arbitration, voir dire, and courtroom technology.  This class is for all law students, not just those who intend to become litigators.

David has confessed that before accepting his admission to Stanford Law, he was torn as to whether he would pursue the path of education or law.  From high school debate club to educational presentations in his community, David has always chosen to fill his spare time with speaking engagements.  He is thoroughly enjoying this venture and is geared up to teach the same class next fall and the following spring. As to whether today’s class of law students is finding his fast paced method of orating in-sync with a visual presentation intermixed with movie clips effective…. the jury is still out.

Thursday April 5, 2012

by David M. Gonzalez

Why is there such a long interruption between posts?

1. Hard cases.
2. Steady diet of hard cases.
3. I forgot my login name and was increasingly frustrated having wasted weeks with all my standard ones. What idiot puts a middle initial in a login name?

In other news, I’ve spent a good bit of time over the past year at the law school teaching a class on Advocacy. In between all the readings, writing lectures, and creating different methods to teach law students – most of my creative energies have transfered to this undertaking. And because I was trained as a teacher – I love it.

Fear not, oh audience of one: I finally dusted off my login and password, and the blog entries shall once again rain fire upon the internets.

Thursday August 26, 2010

by dan

David was on KXAN yesterday morning with some advice for parents and teenagers on how to avoid being arrested for venting on Facebook. Check out the video below:

Tuesday August 24, 2010

by David M. Gonzalez

I received a call today from a dad whose daughter had been cited at her prom for Minor in Consumption of alcohol. Because it was a school-related event, she was facing disciplinary sanctions at school.

As we got further into the conversation, she already had received disciplinary sanctions: She was going to be sent to the Alternative Learning Center for the remainder of the school year, and it was likely that she was going to miss graduation. The dad was still trying to figure out how quickly everything happened. He thought they were attending a meeting with the school, and one administrator had assured them that this was “no big deal” and that his daughter “was a good kid who had never been in trouble before.”

He relayed the details of what we’ve seen again and again and again: The informal meeting was far more formal that he anticipated, the school appeared to have already decided the resolution of the case before the meeting even started, and no matter what the parents said in their daughter’s defense, it seemed to be a foregone conclusion that she was going to be removed to the Alternative school.

Welcome to the world of removal and expulsion hearings.

Few parents ever think of hiring a lawyer at this early stage in the process, and almost all are under the mistaken impression that “good kids” wouldn’t be removed to the Alternative Learning Center with all those bad kids. Furthermore, parents don’t realize that the school has indeed already decided what to do before the removal hearing; it isn’t a search for truth as much as it is an expedited process to efficiently remove the student to ALC.

We’ve had frustrating experiences where hearings officers wouldn’t allow us to bring in witnesses which affirmatively proved our clients’ innocence, acknowledge lab results authoritatively proving the a substance was indeed candy and not cocaine, and even tried to prevent us from speaking during the hearing.  Schools are fiefdoms where enforcing due process rights only comes from playing a contact sport.

If your teenage son or daughter gets in trouble at school and you get a call asking to you come to a removal hearing or an expulsion hearing the next day, chances are that the school has already decided to remove or expel him.

Please: call a lawyer. Even if you don’t call us, call any lawyer that has experience in school law. You have no idea how serious the consequences are, how complicated the process is, and how forceful you must be in order to get a fair hearing.

Monday August 23, 2010

by dan

I agree with pretty much everything that Houston attorney Kevin Pennell writes in his editorial in the Houston Chronicle about former federal judge Sam Kent, but it still bothers me. (Previous post on Kent here.) He’s right, of course – Kent isn’t being taught skills that will prepare him for life outside of the jail; he’s not being treated for his rampant alcoholism; being confined solitarily will not help him transition to the outside world a rehabilitated man.

But, you know, so what? Of course he should be taught those things, but Pennell’s editorial misses two big boats – one is that it focuses strictly on Kent. It approaches what Kent alleges as though he’s the first person to ever have his jail time focus exclusively on punishment, rather than allowing for rehabilitation.

There’s something fishy going on. Kent’s currently in a maximum security state prison. He pleaded guilty to, and is being incarcerated for, a nonviolent federal offense. He should be in a federal minimum security facility. The only explanation that has ever been offered is that, because he is a federal judge, he would be endangered by being placed in a federal prison because the other prisoners would want to harm him.

Nothing fishy about it, really – he’s being treated poorly because he can be treated poorly. It’s not a deep-seated conspiracy to undo Judge Kent because someone has an intense loathing for the guy, and the system is working together to see him suffer. Or, at least, it doesn’t have to be that. It can just be that he pissed off the wrong person, no one who can do anything about it cares, and the system’s not set up to see this redressed. “Something fishy”? Please. Tell it to the woman who died in Travis County Correctional Complex last month of an asthma attack because no one took her health seriously. This is the system that we’ve built.

And that’s the other big boat that Pennell’s editorial misses – that all of this is downright mundane. Prisoners being treated poorly, in ways that leave them less prepared for the outside world than when they were incarcerated? Ask around, and you’ll find countless people who’ll tell you that’s a feature of our criminal justice system, not a bug.

It doesn’t become right just because it’s happening to a judge who never thought twice about sentencing people to this particular level of hell when he sat on the bench, but the only way that it can do anyone besides this one guy a lick of good is if we stop thinking about it in terms of the poor Judge Kent who’s been so egregiously mistreated and start thinking about what it means, if a guy with Judge Kent’s background can suffer like this, for people who haven’t got his connections or resources.

We know about Kent’s complaints because his attorney filed a motion to have his sentence vacated, and because “Former Federal Judge Alleges Abuse In Prison” is sufficiently man-bites-dog to make it a national story. But holding sympathy for Kent and simultaneously ignoring everyone whose attorney stopped being in a position to file motions on their behalf after their conviction, and whose abuse is insufficiently shocking because they were poor or convicted of something that makes people think that they deserve it or just not someone who the people who read and write these stories relate to.

It’s hard to blame Pennell for focusing specifically and personally on Kent – he clerked for the man when he was a judge, and his wife even testified in his trial, apparently. So it’s natural that he’s a little more closely connected to this case than that of any of the other prisoners who’ve been abused and mistreated while incarcerated. But by all appearances, he’s also a bright guy – so it’s hard to imagine that he’s really incapable of connecting those dots.

Friday August 20, 2010

by dan

You know what’s a harsh word to see in print? RAPE. I thought about using a euphemism in the subject line up there, but there aren’t really any that convey what the word means, and anyway — the NYPD officer who used it when explaining what’d happen in jail to a guy with a video camera who refused to stop taping him wasn’t looking for any euphemisms.

Down here in Texas, the police have an old saying — “You can beat the rap, but you can’t beat the ride.” Means that, guilty or innocent, those hours you spend in jail are going to suck, and it’s at the cop’s discretion whether or not you’re going to endure them. The “ride” in question is the ride in the police car.

And I guess, when you think about it, there’s maybe an implied, “Guys in jail are going to rape you” in that statement. I mean, way too much of America agrees that the rape of inmates is hilarious and just people getting what they deserve. It’s not like the police haven’t watched Oz or heard the “You’re gonna be Bubba’s girlfriend” jokes.

But all that’s theoretical, anyway, because we’re not just talking about whether or not police officers are aware of the stereotypes about what happens to men and women when they’re locked up by the state. (Remember: “the state” = you and me, who pay for all of this.) We’re talking about an NYPD officer who thought that “don’t drop the soap” was too subtle a message, and so — as a way to intimidate someone in the middle of the lawful activity of recording a dubious raid — went explicit, threatening to take the guy away and have him raped if he didn’t do what he was told. If you watch the video, the officer is gleeful as he explains that, whether he’s right or wrong, the guy with the camera will spend his three days in jail being raped.

I’ve been focusing on the police a lot in this blog lately, but it bears repeating: We don’t do the people who become police officers a service when we give them the benefit of the doubt, and assume that they’re probably justified in whatever they do in a given situation. We actually do them harm when we make excuses for behavior like, say, threatening to have a guy raped for an entire weekend if he doesn’t do what the officer says.

I’m of the philosophy that says that most people are probably good, at heart. By extension, that means that most cops are probably good, too. They don’t wake up as children thinking, “How can I get into a line of work when I grow up that will allow me to threaten people who are breaking no laws with being raped repeatedly for days on end just because they’re bothering me?” Most people, when confronted with that as an actual option when being annoyed would probably keep it in reserve. “I’ll save the rape threats for the guy who really deserves it,” they’d say.

But if you push ‘em, and you tell them that they’ve got the hardest job in the world and therefore need to be given as much leeway as possible, and if you encourage the system in which they operate to hold them accountable as infrequently as possible, because they need a great deal of discretion and leeway in order to keep everyone safe, and they’re heroes, then even a good person can start to have a skewed idea of what’s appropriate.

They might start to think that, if they’re The Good Guys in everyone’s eyes, then whoever they’re in disagreement with is therefore The Bad Guys. They might think that, since no one is going to hold them accountable if they do, say, solely determine that the dude with the video camera deserves three days of unceasing anal rape, they’re actually doing the right thing if they make that decision. They might assume that if they’re given so much leeway, then they’d be doing the people they’re protecting a disservice to not use it (this is, I think, part of why police are so stoked to use their tasers, too). In short, the way we treat cops makes it awfully hard for them to be good people in what they do.

And that’s all too bad, because they probably are — or were — good people, at their core. But it doesn’t matter much if you’re a good person or a bad person at your core when you’re gleefully insisting to the guy who’s getting on your nerves that you have the right to see him locked up and raped.

Thursday August 19, 2010

by dan

It’s been a while since we made any mention of Busted! In Austin, the weekly rag that runs mugshots of people who were arrested and sells ‘em at trashy convenience stores and gas stations for a dollar. Clickthrough on that link in the previous sentence and you’ll get a good idea of what we think of the paper’s worth. It’s not something we value at Sumpter & Gonzalez.

I was — not a metaphor — walking my dog this morning and saw on the ground next to a tree he’d peed on (seriously, not a metaphor — he didn’t pee on the thing, just next to it) a copy of the latest issue of Busted!. It was open to some random page, and I saw an advertisement on it. For a criminal defense firm.

We don’t tend to publicly call out our local competitors in the space of this here blog. Your current author is not an attorney, and so it seems unseemly for me to do that, knowing that the lawyers who employ me deal with those folks in social and professional settings, while I do not. So I won’t call anyone out by name. However — yes — if you were arrested, it’s possible that your own attorney paid money to support the paper that ran your mugshot on the cover. At least two Austin firms advertise in the pages of Busted, and frankly, it’s just perplexing.

Not every attorney markets themselves with subtlety. Some prefer to send a dozen direct mail pieces in big envelopes that will tell your mailman, neighbors, and anyone sifting through your trash that you were arrested. Some flood the Internet with a bold social media strategy of spamming comment sections in an attempt to fool Google for a little while. And some, apparently, want to reach clients who are so stoked about having been arrested that they can’t wait to hustle down to the Circle K and grab a copy of Busted to put on the fridge.

But we haven’t met many clients like that.

For most people, being arrested is a thing that they’d very much like to forget and move past. Those who’ve never been in trouble tend to be more judgmental sometimes — don’t do the crime if you can’t do the time!, they’ll argue, and use that to justify stripping people of their dignity and trying to humiliate them, even before they’ve been convicted (after all, they wouldn’t have been arrested if they hadn’t done something wrong, right?). And, while that’s deeply unfortunate, and emblematic of a lack of compassion that’s inherent to our culture, at least there’s some basis for understanding it. The people who, say, publish Busted, or produce animated news clips that show people who’ve never been convicted of the crime in question murdering people — we can just dismiss them as people who’ve never thought too hard about things, and who are rushing to judgment out of their own callow instincts. It’s crappy, yes, and they’re not people I’d choose to share a meal with, but what can you expect? Most people are neither compassionate nor thoughtful when it comes to people accused of crimes. It’s just the culture.

But a criminal defense attorney? Man, that’s supposed to be the guy on your side. That’s supposed to be someone who’ll do whatever he can to make sure that the impact of your arrest on your life is as minimal as possible. The job is to keep this from ruining your life, to advocate for you against presumptions, and to do whatever is possible to keep a potential jury pool from seeing you as a criminal.

Part of that, by my reckoning, includes not paying to keep a magazine that runs the mugshots of people arrested for crimes they haven’t been convicted of in the newsstands. If your attorney, before he’s even met you, will actively spend money to make sure that anyone with a dollar can see a picture of your mugshot for a laugh, just because he thinks it might possibly be good for business — you have to ask yourself what that attorney might later do other things that you’d wish he wouldn’t in the name of making his job easier.

There are good attorneys in Austin — lots of them, even — and bad ones. It’s not really my place to name names, but I can tell you for sure that I’d be pretty hesitant to hire one who advertised in the pages of Busted! In Austin magazine. I’d be hesitant to allow one who did that to represent me for free. Here’s hoping it doesn’t net ‘em any clients and they cancel the ad. That’s just tacky.

Wednesday August 18, 2010

by dan

Well, it had to happen. It’s awfully hard to demonize a suspect accused of a crime when you’re left strictly with the power of words, and the news media, unfortunately, does often see its role as demonizing the accused. (How else would people know how bad they are?) Dropping scare quotes around when referring to the catchy title pinned on the person who hasn’t been convicted of anything only goes so far, which is probably why Next Media Animation, out of Taiwan, is so eager to expand to Western markets (and, of course, why Western markets are so eager to do business with Next Media).

We only really connect with the victims in a case like this when we can see the face of the accused perp actually doing the deed — and if poorly-crafted CGI animation is the only way to do it, well, that’ll have to be close enough. Next Media prides itself on a hours-long turnaround from story’s report to animated re-enactment of what happened, and that allows for even less time on fact-checking. They didn’t get around to a video about Keith Johnson before the charges were dropped, apparently, but it’ll probably happen soon — when you start running depictions of legally innocent people doing things they’ve so far only been accused of, eventually you’ll make one of a factually innocent person doing that thing, and the Western companies like the AP and the BBC that are so stoked to be using their services are going to have some ’splaining to do.

Or maybe they’ll just go with it, and who cares if the person in the animation has to live with a depiction of him or herself committing something they didn’t do airing like it’s news. They’re in this to “make deadlines, not art”, according to the Wall Street Journal, after all.

Tuesday August 17, 2010

by dan

Scott Greenfield’s blog brought this story to my attention:

A parolee released from prison just two and a half weeks ago was arrested Saturday in connection with the worst carnage the City of Buffalo has experienced in at least three decades.

But before the day ended, law enforcement officials said they think they got the wrong man.

They went on to dismiss the charges against the guy. So, in some ways – this is a happy story. Guy got arrested, D.A. looked into it and realized that he didn’t do it, guy was sent on his way and returned to his life. Hooray! The system works!

Greenfield talks about how, thanks to the video of the crime in action, the D.A. was able to determine that they had the wrong person. And he’s lucky – we all are – that there was a video in this case. What’s interesting to me is how many cases have no cut-and-dried video evidence, and what that means.

If you ask, say, the San Francisco Chronicle, which declared Philip Markoff to be “The Craigslist Killer” without so much as an “alleged” in front of it (0r even the quotes around the words that New York magazine and AOL used in their headline, as if to say, “other people call him the Craigslist Killer even though he was never convicted, and we’re only quoting them, because we are responsible news organizations*), then the arrest of a guy without video evidence to prove his innocence means that he’s the bad guy. If it weren’t for that tape, then Keith Johnson, the parolee briefly arrested for the “worst carnage the city of Buffalo has experienced in at least three decades”, would be The Buffalo Wedding Warmaker, or whatever alliterative turn of phrase stuck to the guy. In the interest of being responsible, they might have tossed a perfunctory “accused” or “alleged” before the title, but it’d have been clear – this is the fella who did it. The police arrested him, after all…

And it’s not exactly news that the entire system, from the police who make the arrest to the D.A.’s who prosecute the arrested to the journalists who report the arrests, are stacked against the defendant – even when that defendant has nothing to link him to the crime except the fact that he was recently paroled, so if something bad happened, he probably did it – but it’s still important to remember. And it’s on us, too – you and me – because we like to know what we’re talking about, and like to have some certainty when we discuss current events. So calling Markoff the guy who might have been the Craigslist Killer is bulky, and calling Johnson the guy accused of the Buffalo carnage means we can’t even begin to talk about what they deserve, and where’s the fun in that? Journalists and their editors give their readers what they want, most of the time.

* full disclosure: I write for AOL, though I try to avoid scare quotes when I do so.

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