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January 6th, 2005:

Koufax voting

Voting for the 2004 Koufax Awards is going on at Wampum. There are several posts up with the nominees in different categories for your approval. I’m as motivated by enlightened self-interest as the next blogger, so I’ll point out that I’m among the many fine choices in the Best Single Issue Blog race. And if you have a little spare change left over this week, consider making a donation to the Wampum crew for their hard work and elevated bandwidth costs.

Is there a list of these?

A Top Ten List of Top Ten Lists. Why didn’t I think of that? Via Kimberly.

The Gonzales Confirmation Hearings Blog

If you really want to follow the Senate confirmation hearings of Alberto Gonzales for Attorney General as closely as possible, this blog will help.

Yates conviction overturned

Andrea Yates’ conviction has been thrown out by the Texas First Court of Appeals.

The three-member appeals court granted Yates’ motion to have her conviction reversed because the state’s expert psychiatric witness testified that Yates had patterned her actions after a Law & Order television episode that never existed. In ordering a new trial, the appellate court said the trial judge erred in not granting a mistrial once it was learned that testimony of Dr. Park Dietz was false.

Prosecutors plan to appeal the ruling, but Yates’ family and attorney were jubilant this morning.

“It’s unbelievable,” defense attorney George Parnham said. “I’m stunned, unbelievably happy.”


During her 2002 trial in the Houston courtroom of State District Judge Belinda Hill, Yates’ attorneys argued she was unable to discern that difference when she filled up the family’s bathtub and drowned her children one by one, but the Harris County jury deliberated just 3-1/2 hours before convicting her of drowning three of her children. She was not tried in the deaths of her other two children.

Yates’ attorneys vowed at the trial’s end that they would appeal the case because of the testimony of Dietz, who told the jury he had served as a consultant on an episode of the television drama Law & Order in which a woman drowned her children in the bathtub and was judged insane. He testified the show aired shortly before Yates drowned her own children.

Prosecutors referred to Dietz’s testimony in his closing arguments of the trial’s guilt or innocence phase, noting that Yates regularly watched the show and that she had alluded to finding “a way out” when Dietz interviewed her in the Harris County Jail after the drownings.

But right after Yates’ conviction, defense attorneys discovered no such episode was produced. As a result, both sides agreed to tell jurors who’d moved on to consider Yates’ punishment that Dietz had erred in his testimony and to disregard that portion of his account.

Dietz later said he had confused the show with others and wrote a letter to prosecutors, saying, “I do not believe that watching Law & Order played any causal role in Mrs. Yates’ drowning of her children.”


Writing for the appeals court, Justice Sam Nuchia agreed the state hadn’t knowingly used perjured testimony but expressed concern that the jury could have been prejudiced when weighing Yates’ guilt.

“We conclude that there is a reasonable likelihood that Dr. Dietz’s false testimony could have affected the judgment of the jury,” the court ruled. “We further conclude that Dr. Dietz’s false testimony affected the substantial rights of appellant.”

That’s exactly right. The prosecution cannot be allowed to gain from the error of its expert witness. Honest mistake it may have been, but it still damaged the defense, and in a capital murder trial especially, that’s too big a burden. Calling a do-over is the only result that speaks to justice. Maybe this time around, the prosecution will agree that what Andrea Yates needs is treatment, not punishment.

Via Ginger, who sums it all up: “For once, a criminal appeal in Texas has shocked me the right way.”

Tell it to the arbitration council

In 2003, the Lege created the Texas Residential Construction Commission to resolve disputes between homeowners and builders without having to use the civil courts. Today’s Chron takes a look at the effectiveness of the TRCC, and learns that the answer is not so good if you’re a homeowner, since the TRCC has no actual power to enforce its findings.

Since its inception, the agency has received 104 requests for help through the formal dispute resolution process; 42 of those requests are open, and 24 were closed after the agency found for the homeowner. The rest are ineligible or are being processed, the agency said.

The agency does have some powers. Although it can’t force a company to make the repairs it recommends, it can apply other pressures, such as revoking the builder’s registration, assessing a fee capped at $5,000 per violation and asking the state attorney general to file an injunction against builders that violate commission rules.

But the disciplinary actions would be used only to enforce final orders or rulings, such as those that come from a court or arbitration proceeding, not the agency’s recommendations, said Stephen Thomas, executive director of the agency.

Thus far, the commission has not taken disciplinary actions against any builder for construction complaints. It has, however, pursued three actions on administrative issues.

Homeowners, however, can submit the findings as evidence in court to pressure the builder. And some builders are quick to resolve matters. Others can’t agree on fixes after the appeals process.

“It would be nice to be able to have a little more authority to help carry through some resolution on some of these things,” he said.”I think there certainly is concern that if there is a particularly egregious case and we go through the process, a builder could just continue to drag out the process and not resolve it.”


Consumer advocates worry that the commission’s limited power is self-defeating, forcing some homeowners with uncooperative builders to turn to the court system — something the resolution process was supposed to help stop.

Further complicating matters, even if they want to go to court, many can’t because clauses in their construction contracts force them into arbitration if a dispute arises.

The overwhelming majority of home builders have arbitration clauses built into their contracts, said John Cobarruvias, president of the Houston chapter of Homeowners Against Deficient Dwellings.

Although builders promote arbitration as a faster and cheaper alternative to the court system, the homeowner has no right to decline the mandatory process and hence no alternative, he said.

I can’t say I’m surprised by any of this. The Lege is apparently going to look into things and see if maybe there’s some room for improvement. I’m not expecting much.

There’s another angle here, which didn’t get mentioned in this story. Part of the problem I have with the concept of the TRCC is that its membership is appointed by the Governor, who has already taken the opportunity to pay back one of his patrons with a seat on the Commission. How confident does that make you the homeowner feel about your odds of getting a fair shake?

An inside view of the Health and Human Services Commission

A comment in this post on Gregg Phillips led me to this blog post that I recommend you read by Father John Whiteford, a caseworker with TxHHSC. Father John and I are not on the same side of the fence politically or philosophically, but I agree with much of what he says here, and I appreciate the insight. He promises more on this topic in the coming weeks, so check back later as well.