judge

While Gov. Rick Perry’s attorneys argued the criminal case against the governor should be dismissed, Judge Bert Richardson refused to rule on pretrial motions Monday in Perry’s absence and set a hearing date
for Oct. 31.

Perry’s attorneys said the judge should order the prosecution, led by special prosecutor Michael McCrum, to produce transcripts of the grand jury testimony so Richardson can review previous requests to dismiss the indictment. They also want a review of McCrum’s oath when he was sworn in to assume Travis County District Attorney Rosemary Lehmberg’s responsibilities, which Perry’s attorneys claim was not
filed correctly.

Richardson said Perry will have to appear in court to resolve these issues and will have to be present at any hearing that is not just a procedural matter. Perry did not appear in court Monday because of a ruling by Richardson on Sept. 26 that permitted him to skip the hearing. 

“Based on what’s been filed, I can’t see how we can go forward without resolving this,” Richardson said.

It’s unusual for defense attorneys to request transcripts of grand jury testimony, according to McCrum.

“I’ve never seen it in almost 30 years of practice, where a defense lawyer is trying to make a district attorney have grand jury testimony transcribed,” McCrum said.

McCrum said he is confident his oath was properly administered. Richardson set a Nov. 7 deadline to respond to two motions to quash the case after Perry’s attorneys argued the indictment violates the governor’s constitutional rights.

Tony Buzbee, one of Perry’s lawyers, said Perry will appear at the next hearing Oct. 31, when the issues of the grand jury transcripts and whether McCrum was properly sworn in will be discussed.

Perry was originally indicted in August by a grand jury for abuse of official capacity and coercion of a public servant. The charges are related to Perry’s attempts to force the resignation of Lehmberg after she was arrested for drunken driving in April 2013.

When Lehmberg refused to resign from her position, Perry vetoed legislation in June 2013 that would provide $7.5 million in state funds to the district attorney’s Public Integrity Unit. He had previously threatened to take such actions against Lehmberg.

The charges against Perry carry punishments of 5-99 years and 2-10 years, respectively, each with fines of up to $10,000.

The preliminary hearing for Rashad Owens, who drove through a barrier and killed four people at the South By Southwest festival last March, was rescheduled for Nov. 3, according to Judge Clifford Brown of the 147th Travis County Criminal District Court. 

Owens and his attorney failed to appear at the scheduled hearing at the Blackwell-Thurman Criminal Justice Center on Monday, so the date was rescheduled. This is the fifth time court dates for Owens have been pushed back since he was arrested in March. 

Owens was charged with capital murder after driving while drunk through a barrier on Red River Street during the South By Southwest festival in March, killing four people and injuring 20 others. 

Owens was originally scheduled to appear in court April 9 before his trial, but a number of no-shows and requests by his attorney, Rickey Jones, have pushed the pretrial hearing back to 9 a.m. on Nov. 3.

The charges against Owens include capital murder, four counts of felony murder and 24 counts of aggravated assault. Bond was set at $5.5 million.

Travis County District Court Judge John Dietz ruled Thursday that the current Texas public school finance system is unconstitutional under the Texas Constitution, calling the state’s recapture system a de facto statewide property tax. Through recapture, if a district raises revenue in excess of its basic allotment, it must send the surplus to the state for redistribution to poorer districts. The case was introduced in 2011 after Texas lawmakers cut state public education funding by roughly $5 billion.

It’s not the judge’s first time ruling on the state’s public education system. In 2004, Dietz ruled that the constitutionally set tax cap on local school maintenance of $1.50 per $100 of assessed value was also an unconstitutional statewide tax.

But an additional piece of both of Dietz’s rulings alleges that the state doesn’t fulfill its constitutional obligation to “make suitable provision for the support and maintenance of an efficient system of public free schools.” In both cases, Dietz sides with the plaintiffs, calling the system both inadequate and inefficient.

The ruling by the Democratic judge will almost certainly be contested by the state and taken up by the all-Republican Texas Supreme Court. Though it would not be unprecedented for the court to uphold the unconstitutionality of recapture, the court will likely dismiss the provision concerning failure to meet constitutional obligations.

Dietz’s ruling is almost identical to his statements a decade ago. However, his current opinion goes a step further by alleging the current finance system has created inequality in education along wealth disparity lines. Since 2004, the gap between funding in property-rich versus property-poor districts has grown from $965 to almost $1,600 per student.

Though 60 percent of Austin Independent School District students are considered low-income, the district is designated as property-rich, and recapture will send $175 million back to the state this year. Sending such considerable funds back to the state while a majority of the student population is low-income seems contradictory. But if AISD is considered a property-rich district, we can only imagine the problems property-poor districts are facing.

The state has shifted its duty of funding free public education across the state to local taxes that should be going to local issues not under state jurisdiction. In light of this ruling, it is imperative that the legislature take up education finance reform this next session and restore in its budget the state’s contribution to its constitutionally mandated school funding.

President William Powers Jr. speaks to the media alongside student leaders after the 5th Circuit Court of Appeals announced their decision on Fisher v. UT at Austin on Tuesday afternoon. The decision allows the University to continue using race as a factor in its admissions decisions.

Photo Credit: Amy Zhang | Daily Texan Staff

The 5th Circuit Court of Appeals determined the University's holistic review admissions policy meets the strict scrutiny standard in a 2-1 decision Tuesday, allowing the University to continuing using race as a factor in its admissions decisions.

“The backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass,” Judge Patrick Higginbotham wrote in the majority opinion. “We have hewed this line here, persuaded by UT-Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race.”

Abigail Fisher, a rejected undergraduate UT applicant, sued the University in 2008 for discriminating against her based on her race, claiming the admissions policy was in violation of the 14th Amendment. The case reached the Supreme Court in 2012.

In an unexpected decision, the Supreme Court determined the 5th Circuit court had failed to apply strict scrutiny to the University’s race-conscious admissions policy and sent the case back to the appeals court to determine whether the University’s policies are narrowly tailored and necessary to achieve a “critical mass” of minority students.

In a statement Tuesday, Fisher said she is committed to continuing the lawsuit and will appeal the decision.

“It is a shame that for the last six years, hundreds of UT applicants were denied admission because of UT’s racial and ethnic preferences,” Fisher said.

Edward Blum, director of the Project on Fair Representation, a program that has provided funding for Fisher’s case, said in a statement he was not surprised by the ruling.

“While disappointing, this opinion was not unexpected based upon the questioning and comments made by the court during our last hearing in November,” Blum said.

In November, attorneys for both Fisher and the University presented arguments to the appeals court. Representing the University, attorney Greg Garre said although UT does not use specific numbers to determine a critical mass, the University is still able to determine when this mass has been met.

The University uses race as part of an admissions process that determines 25 percent of the student body, and race is one of several factors that, combined, determine 4/7 of an applicant’s personal achievement index. That score is in turn combined with the applicant’s academic index score to determine if the applicant should be admitted to the University.

During a press conference Tuesday, President William Powers Jr. said he is glad the ruling upheld the constitutionality of UT’s admissions process and emphasized race is one of many factors involved in admissions decisions.

“The University of Texas will be able to continue using race as one of many factors, one of many factors, in a holistic review in order to shape a diverse student body,” Powers said. “One of our core arguments all along has been the educational value of diversity to all of our students, regardless of their background.”

Law professor David Gonzalez said the ruling means the University’s admissions process does the best job it can do in achieving diversity from a legal standpoint.

Student Government President Kori Rady said the ruling is a victory for the University.

“When our admissions policy is held up in a high court of law, it shows that what we’re doing is fair and right,” Rady said.

In a dissent, Judge Emilio Garza said the University does not pass the strict scrutiny test, which includes determining whether the University is using race as little as possible while still meeting its goal of diversity.

"A proper strict scrutiny analysis, affording the University 'no deference' in its strict scrutiny claims, compels the conclusion that the University's race-conscious admissions process does not survive strict scrutiny," Garza wrote.

This story has been updated since its original publication.

Police block off the roads after the SXSW car accident on March 13. After the accident, service organizations have been left to decide how to distribute more than $180,000 in funds raised to assist victims and their families.

Photo Credit: Shelby Tauber | Daily Texan Staff

Rashad Charjuan Owens, the driver indicted in the South By Southwest crash in March, made his first public appearance since his arrest before the 147th District Court Judge Clifford Brown during a Wednesday pretrial.

Brown reset Owens’ next court appearance for July 8. Members of Owens’ family attending the Wednesday court appearance declined to comment.

In May, a Travis County grand jury indicted Owens on one count of capital murder, four counts of felony murder and 24 counts of aggravated assault, according to the district clerk’s office.

Police have previously confirmed Owens was driving while intoxicated as he fled police and drove a stolen car through a crowd of people on Red River Street on March 13. Capital murder charges were filed after Jamie West, 27, and Steven Craenmehr, 35, died at the scene. In the two weeks after the crash, Deandre Tatum, 18, and Sandy Le, 26, died.

Since his arrest, Owens has been in Travis County Jail with bail set at $5.5 million.

After the crash, Austin City Council approved a full-scale review of SXSW on March 27. As part of the review, the city has reached out to the community for feedback on how to improve the safety and security of the two-week festival.

A post-event survey conducted by the Austin Center for Events revealed that 49 percent of the 850 respondents attended SXSW events unregistered. Fifty-seven percent of the respondents also voted against the city working alongside the Texas Alcoholic Beverage Commission to limit the amount of hours that alcohol is served during SXSW events.

Responses to the 19 questions asked by the survey concluded that traffic and transportation remains a top priority for city events.

Jayne Rowse, left, looks at April DeBoer on Friday after a decision to strike down Michigan’s gay-marriage ban.

Photo Credit: The Associated Press

On March 21, federal judge Bernard Friedman struck down Michigan’s 2004 law banning same-sex marriage. The decision, despite pertaining to another state, still paid a great deal of attention to Texas, or at least to research conducted by UT sociology professor Mark Regnerus. 

In his opinion, the judge drew on emails obtained through open records requests and Regnerus’ testimony in court to conclude that Regnerus’ gay parenting study was “concocted at the behest” of Regnerus’ funders, the conservative Witherspoon Institute and Bradley Foundation, to be used  at the Supreme Court. Friedman wrote that Regnerus “obliged” his politically minded funders — funders  who “clearly wanted” predetermined results that would protect “the funder’s concept of ‘the institution of marriage’” from the assault by the prevailing social science consensus.

A Pre-trial deposition by Regnerus’ colleague and fellow witness BYU economics professor Joseph Price also exposed a previously unknown connection between Regnerus’ study and the Heritage Foundation, a conservative think tank. According to The New York Times, Heritage hosted various meetings to help coordinate Regnerus and others’ research that they hoped would halt gay marriage victories in court.  

According to the deposition, Regnerus attended at least one such meeting, as did the state’s other social science expert witnesses. The judge, a Reagan appointee, concluded that whatever his interpretations, “[Regnerus] certainly cannot purport to have undertaken a scholarly research effort” on gay parenting outcomes.

Such a pointed rebuke by a legal authority embarrasses Regnerus, but it also gives the University a simple way to revisit its own August 2012 decision to defend Regnerus against allegations of “scientific misconduct.” UT should scrutinize the Michigan trial testimonies and determine whether the new evidence presented warrants some sort of formal action or whether the University should once again reaffirm that Regnerus has done nothing wrong. Mainly, UT should consider whether Regnerus was dishonest regarding the “proposing, conducting, or reporting” of his findings.

Although the University recently distanced itself from Regnerus’ opinions, in the 2012 inquiry, the University found no evidence that Regnerus violated ethics norms. Based on the scant evidence at the time, the University had a point. Having not yet filed briefs or testified, Regnerus argued that he had merely put out controversial research to let other scholars and organizations interpret the findings as they wished, a stance even I accepted at the time. Regnerus’ own study warned against politicizing his findings and claimed that it could not answer questions surrounding the “legal legitimacy” of gay marriages. Regnerus also claimed in his article that “the funding sources played no role at all in the design or conduct of the study, the analyses, the interpretations of the data, or in the preparation of this manuscript.” These arguments, weighed by Friedman in a court of law, were unnecessary, misleading and unethical. After all, Regnerus, like any activist researcher, could have simply acknowledged the funders’ involvement in his study and explained that he wished to stop the prevailing consensus. Instead, he hid their involvement.

According to the emails released in February 2013, Regnerus asked Witherspoon for feedback regarding the study’s boundaries, timelines and the funders’ hopes for what the project might produce. Regnerus admitted on cross-examination that he filed away Heritage Foundation media talking points regarding his research after giving a talk on his study there days before the study’s publication. When questioned further, he said he “largely ignored” the document.

Regnerus is not the first professor to have disclosure issues. After initially promoting former geology professor Charles Groat’s fracking study in July 2012 — around the same time Regnerus’ study came out — the University reprimanded Groat and updated its disclosure policies a few months later. In December 2012 an independent investigation noted deficiencies in UT’s procedures and confirmed that his employment by the company he was studying constituted a conflict of interest. 

Regnerus seemed to cross the line from “good-faith disagreements,” a plausible defense against misconduct allegations, and possible incompetence, to dishonesty in reporting his research, testifying and filing briefs across the nation even though his study warned it could not address the politics of gay marriage. Furthermore, non-disclosure on his part in a coordinated effort by Heritage, another  conservative organization, to get multiple politically charged studies into the courtroom while his study was being routed through the Population Research Center recklessly put the University’s reputation on the line based only on partial disclosure.

While Regnerus was not employed by Witherspoon, Regnerus seemed to produce his study’s conclusions for both ideological and financial reasons. Regnerus told the Texan he accepted Witherspoon and the Bradley Foundation’s $785,000 grant because receiving a National Institute of Health grant, typically $477,215 for 2011 according to the institute, for a polarized topic was time-consuming and unlikely. According to Regnerus, the survey cost around $415,000 total.

Some may ask why UT should bother pursuing a once-reputable scientist whose testimony has already been discredited and whose department has already distanced itself from his opinions and interpretations in court, citing the “highest ethical standards” of the department. Nevertheless, the evidence that has surfaced since the initial allegations suggests not only that Regnerus misled the academic community from the beginning, but also that he unnecessarily bent the academic process to present himself as unbiased in his research. If Friedman is correct that the funders influenced the research, Regnerus deserves direct institutional rebuke. If Friedman is incorrect, the University should defend Regnerus against the judge’s opinion. Either way, in the light of new evidence, the University must settle the question of Regnerus’ ethical behavior.

Knoll is a first-year master’s student in Latin American studies from Dallas.

Horns Up: Federal judge clears way for release of border wall info

As The Daily Texan reported Wednesday, U.S. District Court Judge Beryl Howell has granted a UT law professor access to the names and addresses of people affected by the 670-mile border wall due to possible discrimination. In 2008, two years after the wall was authorized by Congress, Denise Gilman, co-director of the law school’s immigration clinic, requested access to the information but received nothing more than a heavily redacted “handful of documents.” Gilman sued in response in 2009 but never received the withheld records. Now that a federal judge has forced the government to turn them over, Gilman can begin to explore possible discriminatory effects on those who live near, and now, in some cases, behind, the wall. Horns up to Judge Howell for valuing citizens’ right to access government documents and for shining a light on the possible harmful effects of the wall’s construction.

The first time I voted in a general election (2012), I was shocked at just how long the ballot was. The presidential election had obviously garnered a fair amount of coverage, as did local races for Congress, sheriff and the state Legislature. However, what took up the vast majority of the ballot were the myriad judicial contests. Pages upon pages of district and county benches were to be filled by the voters, in partisan elections. Democratic and Republican nominees had been selected in their respective parties’ primaries to run for the posts: civil, criminal, family, juvenile and probate courts.

Texas is one of only a handful of states that choose their judges by this method. From the county courts to the state Supreme Court, every judge must pick a party and face the voters. If you think this is a rather inefficient way of selecting judges, you are definitely not alone. Indeed, even Wallace Jefferson, the former chief justice of the Texas Supreme Court, has disavowed the age-old practice repeatedly, perhaps most notably in a Houston Chronicle op-ed he penned in 2009. 

“My success depended primarily on a straight-ticket partisan vote,” Jefferson wrote in the aforementioned op-ed, shortly after being re-elected to a third six-year term at the helm of the court. Jefferson asserted that, despite his arguably impeccable credentials, he was elected time after time “because Texans voted for Rick Perry, Kay Bailey Hutchison and John McCain.” The drawbacks of this system are somewhat apparent, as partisan tides are an unreliable and untrustworthy way to choose such an invaluable arbiter of justice as a judge. (In a spirit of full disclosure, I should note that my father is a candidate for judge in my native Harris County.) 

There are, of course, some benefits to the policy as well. With literally dozens of judicial posts up for grabs every few years, nonpartisan elections would produce utter pandemonium, as low-information or otherwise casual voters would have little way to discern the plethora of candidates from one another. Then there is the issue of local control. In Massachusetts, for example, where I previously attended college, all judges are appointed by the governor. Under the current system, progressives in Austin, Houston and other settings are free to repudiate the politics of the state government, and other remote areas may feel free to make their own decisions.

However, there exist countless real examples of these issues of local control. Last Monday, Perry filled an opening in the 212th District Court in Galveston County, recently vacated by Judge Susan Criss, a Democrat. Not only did the governor replace her with a Republican, but he picked this particular replacement over the objection of the region’s state senator, who is also a stalwart conservative Republican. 

“It is an unprecedented action for a Governor to overrule the objection of the hometown Senator whose district includes the appointee,” State Sen. Larry Taylor wrote in a press release. Unprecedented, maybe. But this would be the rule — not the exception — if we moved to a Massachusetts-style system of judicial selection.

“I am in favor of electing judges,” Judge Mike Engelhart recently told me. Engelhart, a Civil District Judge in Harris County, qualified his remarks by noting that a nonpartisan election, one even guided by a nominating committee (a diverse group of appointees with some discretion over the candidates) or the State Bar, would be preferable. However, he strongly reiterated his support for elected judges, noting, “I am in favor of democracy; I think voters should have a say in the judicial branch.” 

The common consensus among many observers, including Jefferson and Engelhart, seems to be that Texas’ current process is imperfect. Engelhart firmly believed corruption is inextricably attached to the money inherent to politics. “We need to get the money out of these races,” he said. “Strict fundraising and spending limits are needed.” I agree. Fundraisers and corporate campaign donations are surely the type of influence we want out of our judicial system, whether it is one elected by the people or not, and the improvement needed will be one that retains local control but curbs the corruption of politics. 

Horwitz is a government junior from Houston.

Russell Erxleben, a former NFL kicker and UT football player currently in federal custody for spearheading a slew of bogus investment operations, will stay behind bars until his trial begins Jan. 6.

 

On Friday, U.S. District Judge Lee Yeakel told attorneys he needed more time to review Erxleben’s case and postponed his ruling on whether to release Erxleben on bond.

 

The three-time All-American player is currently serving time for leading a slew of investment operations since 2005, including a Ponzi scheme that defrauded his associates out of $2 million in nearly four years.

 

According to Daryl Fields, a spokesman for the U.S. Department of Justice, Erxleben will have to wait another four months before his trial can resume.

 

“Trial date is January 6,” Fields said in a email. “No decision yet by judge as to Erxleben’s’ bond request. Judge took the information from today’s’ hearing under advisement and will render a ruling at a later date.”

 

According to the Austin American Statesman, court records indicate Erxleben’s most lucrative enterprise compelled his clients to invest in defrauded post-World War I German government gold-bearer bonds from the 1920s and 1930s.

 

During Erxleben’s first detention hearing in May, Judge Andrew W. Austin mandated that Erxleben remain behind bars until his trial. Andrew said Erxleben posed a financial threat to the community and doubted his ability to stay out of trouble.

 

“He manipulates people,” Austin told the Statesman. “He manipulates them with fear. He manipulates them with guilt. He manipulates them with promises.”

On April 12, U.S. District Judge Sam Sparks of Austin rejected the Texas division of the Sons of Confederate Veterans’ efforts to get the Texas Department of Motor Vehicles board of directors’ approval to issue license plates bearing the Confederate battle flag. The Sons and the nonprofit group’s leaders alleged that Texas DMV board members violated their First Amendment rights by denying approval of the proposed plates and wanted the judge to order the agency to approve the proposed plates.

In his ruling, Sparks surmises that the Texas DMV board members rejected the Sons’ plates because of the Confederate battle flag, which he says “is a symbol which conveys different meanings to different audiences.” But Sparks concludes that it is also a symbol that “has been co-opted by odious groups as a symbol of racism and white supremacy.”

In November 2011, when the Texas DMV board held a public hearing and voted against approving the license plates, the witnesses were numerous and emotional and included high profile politicians. According to an account in the Austin American-Statesman written at the time of the hearing, U.S. Rep. Sheila Jackson Lee, D-Houston, testified against the plate as a racist symbol and displayed a photograph of a Ku Klux Klan member in full white-sheet regalia holding up the Confederate battle flag. “Texas is better than this,” she said.

Another African-American individual testifying, Sparks writes, echoed the sentiments of many when he told his story, which the judge quotes in footnote to the ruling: “When I was 10 years old we walked to school, to the black school. There was a white school where the white kids rode the bus, there was another white school that was a private school, and every morning as we walked on the sidewalks as black people, the white private school bus would slow down as it passed us, while the kids on board spit out the window in our faces and displayed a Confederate battle flag. Every year in our school when they talked about the death of M.L.K., the white kids would bring in the Confederate battle flag and hold it up as a symbol of power.”

But at the same meeting, Texas General Land Office Commissioner Jerry Patterson, who supported the Sons’ bid for the plates, started off his remarks “by quoting infamously ironic statements by Abraham Lincoln and Robert E. Lee, the former suggesting the Great Emancipator in fact harbored racist sentiments, and the latter tending to show General Lee opposed slavery and desired to see all slaves emancipated,” Sparks writes. The judge then adds, “While these quotes help illustrate the complexity of the causes of the Civil War, they also further confirm the problem with the specialty plate at issue here has nothing to do with the [Sons organization] itself or any viewpoint it holds, but with the meaning of the Confederate battle flag, which has, unfortunately, become inseparably connected with racial tensions.”

In his 47-page ruling, Sparks notes that plenty of other states have allowed for similar commemorative plates, including the states of Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.

According to Sparks’ ruling, both statutes and regulations govern the Texas DMV board’s review of proposed plates. Those rules, he writes, quoting them, allow the department to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.”

 Why, then, does the judge agree that such a clause, as applied to the rejection of the proposed license plates, does not trigger a violation of the Sons’ First Amendment rights? The logic of Sparks’ ruling takes three steps — at least.

First, he concludes that the license plates do not constitute a public forum. “[L]icense plates, rather than being a place for people to gather,” are discrete pieces of government equipment to serve the purpose of vehicle identification, he writes, comparing them to mailboxes.  “When the forum is nonpublic, the First Amendment still applies — albeit with reduced force,” he writes. He then concludes that previous precedents have established that “courts must uphold a governmental restriction on speech in a nonpublic forum as long as the restriction is reasonable and viewpoint-neutral.”

To illustrate why the Texas DMV board’s decision was viewpoint-neutral and not discriminatory, Sparks offers a hypothetical example of a World War II-focused historical society that wanted a specialty license plate issued with a logo that included the insignia from all sides in that conflict. The United States’ white star, the British tri-colored roundel, Imperial Japan’s rising sun, the Soviet Union’s hammer and sickle and Nazi Germany’s swastika. “If the historical society sought a specialty license plate using its composite logo, the design would properly be rejected under the specialty plate rules, not due to the (entirely unobjectionable) viewpoint of the society, but due to the derogatory content of its logo, specifically the swastika,” Sparks writes.

Sparks’ opinion offers much for constitutional scholars to chew on, and the lawyers for the Sons are considering an appeal. The last image we want to see on the back of vehicles as we drive down Texas highways is the Confederate battle flag on government-issued property. We know the difference between a private display and government-sanctioned messaging, and therefore we understand the careful path Sparks has taken on this issue. But at the same time, we would welcome an appeal of his ruling, because First Amendment violation allegations are worth looking at a second  — and even third — time.