Regular readers of this blog know that I frequently criticize the deplorable condition of Houston’s local jail facilities. Also, it will surprise no one that I don’t agree with the governmental policy of throwing wealthy businesspeople in prison for engaging in merely questionable business transactions, and I also am not supportive of the largely futile policy of locking up thousands of citizens for nothing more than a personal drug problem. Not to mention the absurdity of locking up legitimate businesspeople who simply facilitate bettors engaging in online gambling.
One of the primary reasons for my opposition to needless imprisonment of citizens is the deplorable state of many American prisons. Inasmuch as I visit jails and prisons from time to time, I am not surprised by the foreboding nature of this Christopher Hayes post (HT Ezra Klein) excerpting a part of this Human Rights Watch report on prison rape. The story reinforces graphically why imprisonment is a horrifically overused remedy in America’s criminal justice system.
Not all prisons in the United States are like the one described in the report. But many — particularly in the widely inconsistent state systems — are every bit as bad. And don’t think for a minute that all public officials are particularly interested in changing the status quo. Remember when the attorney general of California once suggested a similar fate to the one described above for the late Ken Lay? The deeply ingrained inhumanity of many American prison systems is one of the primary reasons to be vigilant in opposing the demagogues in our society who advocate increasing criminalization and imprisonment of American citizens.
In this timely National Journal op-ed,, Stuart Taylor examines the brutality of America’s sentencing laws, noting that a “world-record 2.2 million people [populate] our nation’s prisons and jails. Justice aside, there are better ways to spend scarce tax dollars.” Meanwhile, Scott Henson reports on the status of current legislative efforts to bring sanity to the Texas prison system.

This is an intriguing idea — a website with anonymous comments about federal judges around the country.
Many considerations go into assessing litigation risk — strength of legal case, quality of witnesses, timing, relative financial strength of the parties, etc. However, a good understanding of the judge’s tendencies is sometimes the most valuable nugget of information.
There are not all that many comments on the website, yet. But it could develop into a valuable market device to assist parties and lawyers measure litigation risk. It will be interesting to see whether this catches on. Frankly, it should.

In criminal law appellate circles, the Fifth Circuit Court of Appeals is known as a black hole into which appeals of convictions go and reversals rarely occur.
However, about a year ago, the Fifth Circuit vacated a criminal conviction of one Humberto Cuellar, who had been convicted of international money laundering after he was found with $83,000 hidden in his VW Beetle as he headed to Mexico via Del Rio, Texas. The prosecution needed to show that Cuellarís transportation of the money was designed to conceal its source and that Cuellar knew of the concealment. Inasmuch as the prosecution focused solely on the fact that the money was hidden in Cuellarís car to establish these elements, a Fifth Circuit panel concluded that the evidence was insufficient to support conviction and that money laundering requires some showing that the defendant tried to pass off the money as legitimate. In short, simply attempting to smuggle the money to Mexico does not equate with money laundering.
But not so fast. The Fifth Circuit decided to rehear the appeal en banc and, in this decision, reverses the panel decision and affirms the original conviction by a 13-3 vote. In a stinging dissent, Judge Jerry Smith of Houston notes that the majority’s decision facilitates prosecutorial misconduct by allowing the government to charge Cuellar with the crime of money laundering — which carries a sentence of up to 20 years — rather than his true crime of currency smuggling, which has a sentence of only up to five years. In arguing that the prosecution didn’t come close to making a money laundering case, Judge Smith observes that “this is a case of a prosecution run amok” and that Mike Nifong — the disgraced former prosecutor in the Duke lacrosse team case — “most surely would approve.” Ouch!
Hat tip to Robert Loblaw.

Last July, Shiraz Syed Qazi — a 29 year-old Pakistani national attending Houston Community College on a student visa — went camping for a couple of days with a couple of friends in Willis north of Houston. While camping, Qazi engaged in some target practice with an Armalite M-15, .223 caliber semi-automatic rifle and his friends took some photographs of him doing so. A good time was apparently had by all.
In late November, Qazi was indicted and arrested in Houston on federal charges of unlawfully possessing a firearm as a non-immigrant student visa holder. Qazi was denied bail and so he has stewed in jail ever since his arrest. Earlier this week, Qazi was convicted of the crime after a bench trial and now awaits a May 17th sentencing hearing in which he faces a maximum 10-year prison sentence and a $250,000 fine. Qazi remains in jail pending his sentencing hearing.
Remarkably, from the only meaningful pleadings filed by Qazi’s public defender and the prosecution in the case (see here and here), it is undisputed that Qazi did not know that he was committing a crime by engaging in a little target practice during his camping trip. But that hasn’t stopped the feds from putting him away for a couple of months already and threatening him with a ten year prison sentence.
Welcome to the USA, 2007.

Radley Balko examines the reasons why the Department of Justice demanded the resignations of seven U.S. Attorneys across the last month. He concludes that it’s all about priorities and questions the Bush Administration’s emphasis on enforcing new forms of prohibition. And he doesn’t even mention the extraordinary abuses of prosecutorial power (see also here and here) that have occurred during the Bush Administration Justice Department’s campaign against business interests. Check Balko’s piece out.

Bankruptcy is strong medicine with serious side effects, so it’s not a remedy for legal problems to be taken lightly. I don’t know if local attorney Jose Antonio Villalon took the notion of filing bankruptcy lightly, but his multiple bankruptcy filings several years ago have resulted in a three-count indictment accusing him of bankruptcy fraud in connection with his alleged failure to disclosed an interest in an oil and gas lease that he either owned or had transferred shortly before commencing his bankruptcy cases. The U.S. Attorney’s press release on Villalon’s indictment is here.
Notably, Villalon did not even receive a discharge of his personal liability for his debts, which is the primary benefit of enduring a bankruptcy case in the first place. Both of Villalon’s bankruptcy cases were dismissed before he received a discharge, and the second one was reopened after the trustee discovered the allegedly undisclosed asset. Thus, Villalon’s creditors still can recover their claims against his non-exempt assets, assuming that they can find them, and Villalon has only a criminal indictment and no discharge for all his bankruptcy trouble.
Serious side effects indeed.

This earlier post reported on the lawsuit by former Interior Department auditor-turned-whistleblower Bobby Maxwell against Kerr-McGee Corporation, a subsidiary of The Woodlands-based Anadarko Petroleum, for allegedly cheating the government out of millions of dollars in oil royalties on production that the company generated from leases on government-owned property. Kerr-McGee contended that no fraud was involved and that it simply computed royalties differently under the leases than Maxwell contended was correct.
Earlier this week, this NY Times article reports that the jury in Maxwellís case decided that Kerr-McGee had underpaid the government $7.5 million. Accordingly, under the False Claims Act, the law under which Maxwell is bringing his whistleblower lawsuit, Kerr-McGee could be forced to pay more than $30 million — double or triple the jury verdict, as well as penalties of up to $11,000 for each of over 1,000 false statements that the company is accused of making in its royalty reports to the government. Maxwell is entitled to as much as 30 percent of that amount.
The bottom line — skimping on payment of oil and gas royalties is risky business.

The Texas justice system may leave a lot to be desired in the area of capital punishment, but you can’t say that the Lone Star State doesn’t protect its horses.
A couple of Texas slaughterhouses recently learned that lesson when they began processing and selling horse meat for human consumption in several emerging foreign markets. The Attorney General’s office promptly informed the slaughterhouses that they were violating a 1949 law that bans processing of horse meat for human consumption and the slaughterhouses protested that the 1949 law had been repealed or was at least pre-empted by federal law. The AG’s office refused to back down, so the slaughterhouses sued to enjoin the AG from enforcing the law and the district court granted the injunction.
On appeal, a Fifth Circuit panel led by Judge Benvanides had some fun. In Empacadora de Carnes v. Curry, 05-11499 (5th Cir., Jan. 19, 2007), the Court held that “[t]he lone cowboy riding his horse on a Texas trail is a cinematic icon. Not once in memory did the cowboy eat his horse, but film is an imperfect mirror for reality.” The panel goes on to concede that horse thieves occasionally would eat horse meat, but holds that the Texas horse meat ban has not been repealed and is neither pre-empted by the Federal Meat Inspection Act nor violative of the Dormant Commerce Clause. As a result, the Fifth Circuit shut down the slaughterhouses’ horse meat processing operations, leaving those heartless folks in Illinois as the only current US exporters of horse meat for human consumption.
Woodrow Call and Gus McRae and the other members of the Hat Creek Cattle Company would be right proud of the Fifth Circuit. HT to Robert Loblaw.