Random Thursday Morning Thoughts

This was the Great Bluebonnet Massacre at Oaklawn Cemetery in Decatur.

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• Warning: I've two long ones today. 
• I continually disturbed by DPS acting as Gov. Abbott's personal police and campaign arm. 
• Of course, we all know about "Operation Lone Star", the oft-criticized border protection PR campaign which forces DPS Troopers off the highways in order to spend weeks doing very little on the border.
• But the new area of concern begins with the recent allegation of foster girls being sexually exploited at The Refuge, "a foster care ranch in Bastrop for young sex trafficking victims."
• There is no question that one employee took "nude photos of girls in exchange for drugs." This, of course, doesn't look good during a Governor's campaign so Abbott ordered his righthand man and faithful servant, DPS Director Steve McGraw, to send in the Texas Rangers to investigate.
  
  
  
• Here is the amazing part: Less than a week after being asked to investigate, McCraw wrote a letter to Abbott saying “there were no allegations or evidence that these residents were sexually abused or assaulted by anyone.” Really. Nothing? You sure? 
  
  
  
• Abbott jumps on Twitter to yell: "Nothing to see here!" 
  
  
  
• And it worked. Here's an example of the headlines: 
  
  
  
• Well, yesterday, a federal judge overseeing a decade old lawsuit about the Texas foster care system took great umbrage at DPS, the Texas Rangers, and specifically McCraw. At a hearing in Dallas, it did not go well. Highlights:
• From Fox 4: "The judge was visibly disturbed by the Texas Rangers' investigation into The Refuge, saying their attempt to spin it into something else was shocking." 
• This from the same report: "Federal Judge Janis Jack questioned whether the Texas Rangers understand the definition of sex trafficking."
• From Texas Public Radio quoting the judge: “Defendants assured me of the reliability of the (Texas) Rangers. But lo and behold the very next day, a letter was published from Mr. McCraw head of DPS and The Rangers.” 
• That judge, a few days earlier, had asked if the Rangers were "instructed to investigate or instructed to disprove?"
• From the Texas Tribune: The Commissioner for the Texas Department of Family Protective Services, Jaime Masters, was a witness before the judge and she said she "disagreed with McCraw's assessment that there was no evidence of sexual abuse at The Refuge" and "McCraw made his [quick report] before the Texas Rangers had interviewed any of the victims."
• More from the Tribune: The judge said she "lost confidence" in the State's investigation so she is referring the matter to the U.S. Attorney for the Western District of Texas.
• That's basically, I don't trust DPS, and I'm sending in the Feds:
  
• So late yesterday The Academy said it had asked Will Smith to leave the show after he slapped Chris Rock. But we are to believe not a single camera caught that and there wasn't a single witness to them asking him? 
  
  
  
• Bruce Willis has "stepped away" from acting, basically because of the equivalent of early Alzheimer's. Did you know he was an extra in The Verdict starring Paul Newman?
  
  
  
• A case involving the worst kind of allegations against a man were dropped on the eve of trial in Wichita Falls. Why?  "The outcry witness for the case recently told the DA's Office she misunderstood what the child said and is unsure if he was claiming sexual abuse, according to the dismissal request." Good lord! 
  
  
  
• This will fill 24 hours non-stop of Fox News.
  
  
  
• Fox4Terry was out working hard last night.

  

  In Dallas

  
   

  

  In Denton

  
  
• Very very, legal nerdy stuff: Amber Guyger's appeal to Texas' highest criminal court was denied yesterday.
  
  
  
• From the very beginning, I've ranted about an incorrect charge to the jury that basically begged them to acquit Guyger by incorrectly stating the law. (I called it a "nuclear bomb" in favor of Amber the day after it was given. ) Don't worry about what it specifically said because it didn't matter. The jury ignored it and convicted her anyway. 
• The instruction was so bad that the DA's office took an unusual step at the Dallas Court of Appeals when Amber appealed her conviction. In its response to Amber's brief, the DA's office asked the Court to not only affirm the conviction, but to do it them an extra solid and specifically say in their opinion that the instruction shouldn't have been given. (I wrote about how weird that was in December 2020.)
• That request by the DA's office is a little crazy. It didn't hurt the State in Amber's case so why do they care if the judge screwed up?  Well, there was always the chance other lawyers in the Dallas courthouse would want to use the instruction as a pattern if another unusual case like that ever occurred.  It's a little paranoid on the DA's office to think that, but they really didn't like that instruction (although they weren't smart enough to object to it at the time the trial judge gave it.) 
• But the Dallas Court of Appeals ignored them. It affirmed the conviction but didn't say anything about the improper jury charge because it didn't play any role whatsoever in their decision. 
• Well, get this: In the next, and probable final step of Amber's continuing appeal, there were two judges yesterday who filed an opinion dissenting to the court deciding not to take the case. And you know what they did? They quoted in full that part of the jury charge which the DA's office hates so much. (See footnote 2.)
• Why did they quote it? That's a great question because the two judges didn't say it was wrong. In fact, they didn't care about it all because they were concerned with something else. That is, there was no reason to quote it all unless . . . 
• . . . it's a sneaky Hail Mary by those two judges to try and get the remaining seven to take up the case on rehearing.  How so? Because right now in the law books, for every defense lawyer to see, is that crazy jury instruction which wasn't even criticized in the opinion that published it.  It's now out there.
• So now, it could practically be used by a defense lawyer in a future case by simply telling his trial judge, "Hey, judge, remember that Amber Guyger case in Dallas? Well, it's kind of the case we are trying now and here's the instructions the judge gave that jury. No court ever said it was wrong. It's as good a guide as any." And technically, that's true.  (A little unethical for people who know it's wrong but, trust me, most lawyers don't know its wrong.)
• So now the Dallas DA's office, who hates the instruction so much, has to see it reprinted by two judges on the Texas Court of Criminal Appeals without so much as a word saying it was wrong. I bet the DA's office hopes the court does decide to reconsider yesterday's ruling and hear the case, affirm the conviction, and specifically say that instruction was wrongly worded and should never be given. Heck. The DA's office may now ask them to do just that.