Why I Don't Gamble

I think I can safely declare my career as a pundit officially over. You never know exactly what any court is ever going to do. It really depends on the minds of those people who take a look at a situation.

From a legal nerd point of view, the Supreme Court decision in the FLDS matter certainly doesn't set any precedents. Implicitly it affirms that the trial court abused its discretion, but it doesn't really say how other than to say that the record as presented doesn't support the rounding up of the kids. It doesn't go into whether the third court of appeals applied the right standard.

I don't disagree with the decision, but it does seem to imply a different standard on temporary orders when CPS takes children out of homes. The typical way the CPS docket works is that CPS takes the children and the trial court judges tends to err on the side of caution and allow that to happen while things are "sorted" out. That's basically what happened in the FLDS case. It's usually not worth appealing those decisions because the standard for mandamus is so high. However, in the FLDS case the Supreme Court basically applies a sufficiency of evidence standard.

Before if there was any evidence that supported a judges decision to remove the children, the decision was left because so long as any evidence existed the judge did not "abuse their discretion." Here the Supreme Court says its the totality of the evidence presented and not whether there were was some evidence to support the trial court judge's decision.

I just question whether this will change CPS and its heavy handed tactics. I really agree that taking children from their parents should be an option of last resort.

Since I didn't think a court of appeals would overturn the trial court in the FLDS matter and thought the Supreme Court would overturn the court of appeals, I can say that my record on predicting legal decisions is probably as bad or worse than my predictions on horse races. I don't gamble on the horses so I'm not going to gamble on the Texas Supreme Court.

The Supreme Court and FLDS

A whole lot of people have been very happy with the Third Court of Appeals decision in the FLDS matter. My belief is the Third Court applied the wrong legal standard and left the Supreme Court with no alternative other than to overrule them.

Mandamus is a very specific legal remedy. It requires a very high standard. Mandamus is used when there is a clear abuse of discretion by a trial court judge. Note the word "clear" which makes the standard on mandamus even higher. In this particular case there must have been no other way a decision could have been made other than to return the children. While the anti CPS crowd would say that this is the case, the fact is that there was evidence (overblown perhaps) that would support the trial court judge keeping the children in foster care.

What the Third Court of Appeals did was apply a sufficiency of the evidence standard. It examined the record and started weighing the evidence. While a complete lack of any evidence can be grounds for mandamus, the Third Court of Appeals was legally wrong in overturning the trial court. There was evidence to support the finding of temporary custody to the department. That evidence may have been weak or depending on your view outright fabrications, yet some evidence did exist.

Since some evidence existed, it was not a "clear abuse" of discretion for the trial court to maintain the children in the custody of CPS. My humble opinion is that the Supreme Court will issue an opinion saying how concerned they are and possibly telling the trial court to hurry the process of sorting through things but will overturn the Third Court of Appeals and keep custody of the FLDS children with CPS.

I do have to admit that I didn't think a Court of Appeals would overturn the Trial Court on a Writ of Mandamus. So, I've been wrong before; however, for the Supreme Court to let the ruling of the Third Court of Appeals stand would as CPS' brief says, "turn mandamus law on its head."

Life

In an odd sort of way, I'm a very unique individual. Since I'm unique there is a big part of me that wants to separate myself from the rest of the other 6 billion humans on this planet. However, if my life has value isn't it because of the whole wonder of life that all 6 billion of us share?

A jury in Harris County, Texas said that convicted cop killer Juan Quintero should not be put to death. The family of the slain officer said they felt the jury's verdict was as if the officer's life "meant nothing." However, the jury had already said that the officer's life meant something when they convicted Juan Quintero of capital murder. The guilty verdict said that Quintero had taken the life of a valuable member of society and that it was wrong. When the jury was deciding on punishment, the question they had to decide was whether Juan Quintero's life meant anything.

The jury decided that Quintero's life was worth something. One juror said it this way, "I believe he has value." The decision wasn't a slap in the face of the victim's family. It didn't lessen the value of the officer's life. The jury didn't have to decide the big philosophical question of whether all life has value, they only decided that this one person's life had value.

$1.4 Million for This?

Greg Abbot is concerned about an "epidemic of voter fraud in Texas." He spent $1.4 million on prosecuting voter fraud. The net result? He prosecuted 26 cases. In more than 2/3 of the cases, they were people helping the elderly or disabled vote by mailing their ballot for them. All of the cases were against Democrats and they were mostly against black and Hispanic voters.

Is is just me or do I detect a conspiracy by the Republicans to try to trump up the need for voter id laws? If after spending $1.4 million of the taxpayers money and only coming up with 26 cases, then I'd say that voter fraud is a red herring issue.

Determinism Part 2

I have a friend who has a child who has Tourette's Syndrome. Through my friend, I got involved with activities of the Tourette Syndrome association. One particular form of Tourette's syndrome involves the spontaneous utterance of socially objectionable or taboo words or phrases, also known as Coprolalia.

So, if a person suffering from this disorder meets me and suddenly calls me "asshole" then to a large extent that was a deterministic result. In other words disease and symptoms are a sort of cause and effect for the person.

What prompted this post was Mark's philosophical question about whether a case ever exists where human behavior is strictly deterministic. In other words, are there cases where the link between cause and effect are so strong that the person had no say so in the result?

Obviously, in my Tourette example the act of calling me asshole was deterministic; however, the Tourette person as a whole is not strictly governed by determinism. They have the option of seeking treatment which while not wholly breaking the link between cause and effect make the possibility of a deterministic result far less likely.

I don't know that Mark and I necessarily disagree; however, I think we both agree on the fact that society needs to understand that we are not fully creatures of free will. Many things we do or say are to a very large extent the result of some psychological or biochemical cause and effect. In other words, in the big picture the Tourette's sufferer can do things that will help break the link between cause and effect; however, it doesn't take away the fact that calling me an asshole was a direct cause and effect result.

Goodbye Tommy Thomas

OK let me try to understand the mind of Tommy Thomas. Your deputies seize a camera from people doing nothing but watching a commando style bust. You claim your deputies did nothing wrong.

You put the photographers in jail on trumped up charges that are later beaten. You claim your deputies did nothing wrong.

The photographers sue you. You respond by putting them under surveillance. You claim it was just routine pretrial preparation; however, the County Attorney never asked you to undertake this surveillance.

So, Tommy, are you still going to claim you did nothing wrong? How much more money are you going to cost the taxpayers of Harris County with your shenanigans?

Tommy, you need to quit. I'm voting for Adrian Garcia.

Juan Quintero's Free Will

Hath not the potter power over the clay, of the same lump to make one vessel unto honour, and another unto dishonour?

St. Paul - Romans 9:21

Free will is a cornerstone in both the religious and judicial worlds. On one hand, it seems that if we abandon the concept of free will then we can no longer hold someone morally responsible for their actions. If some defect in Juan Quintero's brain made him pull the trigger, then he cannot be held accountable. Further, since he acted with free will, then society is justified in punishing Juan Quintero. We can even justify putting him to death as punishment for his act of free will.

Many people also fear determinism which is the philosophical opposite of free will. For many people it comes down to actually fearing a loss of control in our lives. If all my actions are determined by events and natural laws, then I'm really not in control of my life. I'm at the mercy of those events and natural laws.

However, this fear of determinism is somewhat misplaced. Individuals have the capacity to overcome whatever biological or genetic determinism affects their lives. Juan Quintero had a childhood brain injury. That injury possibly lead him to perceive the officer as a threat; however, he still had the capacity to not react to that threat. Steven Pinker believes that fear of determinism in the biological, genetic or evolutionary sense is caused by "a confusion of explanation with exculpation." He argues that causation should not affect responsibility so long as responsibility can modify behavior. In other words, acceptance that Quintero's brain injury may have caused him to pull the trigger does not mean that he should not be punished since punishment will modify the behavior of shooting anything perceived as a threat.

Another problem with the issues of free will versus determinism in the criminal justice setting is the whole issue of punishment. As I said earlier, a belief in absolute free will means that punishment can or possibly should be "an eye for an eye." If Juan Quintero was absolutely free to pull that trigger then society would be justified to impose it's free will in the form of a death penalty. However, if you begin to abandon the concept of free will, then the justification for revenge disappears and punishment should look to rehabilitation rather than revenge.

I was pretty certain that Juan Quintero would be convicted. I'm not so quick to make a bet on his punishment. The jury may consider the deterministic parts of Juan Quintero's behavior and decide not to give him the death penalty. However, I can also see the jury focusing on the free will parts of Quintero's behavior and sentencing him to death. It will depend to a large extent on what the philosophical leanings of these particular jurors are.