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January 7th, 2005:

Elsewhere with Park Dietz

Mac notes that despite his screwup in Houston, Park Dietz can still be a force for good.

Is the fix in for Heflin?

Keir Murray, a familiar name but a new blogger around here, reports a conversation he had with a state senator, who thinks the House may override the result of the Hubert Vo-Talmadge Heflin election.

I spoke last night with a state senator, who shall remain nameless, who now believes the State House GOP may decide to seat Heflin and bump Vo out, overturning Vo’s legitimate win in District 149. Like most folks familiar with the Legislature, until recently he didn’t think there was any chance of that happening. He’s changed his mind. The reasoning is as follows:

The legislative session begins next week, and Democratic House members begin baiting Craddick from the back microphone — “Mr. Speaker, if you are indicted, will you step down from your leadership post?” — and so on. The session quickly dissolves into a partisan lockdown, and Vo loses on a party-line vote.

Sound far-fetched? Think for a moment about what the GOP, at both the state and federal level, has had the audacity to do in the last couple of years — redistricting, ethics changes, now trying to eliminate the filibuster from the U.S. Senate, etc — and you may reach the same conclusion the state senator has. “These guys just don’t give a sh*t.” Bad press? Who cares. Public outrage? They’ll get over it. Politically dangerous? Not a chance — all we have to do is win a GOP primary anyway. Democratic retribution? (After several moments of laughter) Who?”

The senator (and I) believe the GOP will make every attempt to do this for one reason, they can. They have the votes and they value power above all else. If they can take a little bit more, they will, integrity and the public be damned.

If that were the only scenario for this outcome, then there’s an easy enough way to avoid it: have the Democratic House members stay on good behavior until the contest is officially settled. Surely if Jim Dunnam could convince 50 colleague to ride a bus to Ardmore, OK, last session, he can manage that this time around.

I fear, however, that such provocation isn’t necessary. As Greg notes, Harris County Tax Assessor Paul Bettencourt has announced that an open records request says that there were 167 illegal votes cast in the HD149 race. Of course, who those people voted for, or even if they did vote in the HD149 race, is something we can’t know unless we drag them onto a witness stand and ask them under oath. But if the House GOP leadership wants to seat Heflin, the mere existence of those votes would be a sufficient fulcrum for them. Jack Stick laid some groundwork with his own charges of vote fraud (though to his credit, Discovery Master Will Hartnett hasn’t bought it, and apparently Stick’s ideas of what constitutes fraud include voter registration). But who’s to say that can’t or won’t happen?

I will say this: Whatever happens later this month, Talmadge Heflin has won his last race. Whether he retires from public service and slips into a lucrative lobbying job now or in 2007 is still an open question, but he’s done as a candidate. His actions now may be enough to poison the well for a long time in HD149 for all other Republican hopefuls. Not that this bothers me, of course.

Lastly, Keir and Greg both also talk about the likely impact of seating Heflin on two other Republican State Reps, Joe Nixon and Martha Wong. Nixon’s district is even more Vietnamese than 149 is, and like Vo, Wong has benefitted from crossover support from Asian constituents. Further, Moldy Joe is already a prime target for 2006, and Wong’s district is about as swingy. For sure neither one will want to risk opposing Vo; the real question is whether they’ll publicly support him.

The underground primary

The Perry VsWorld blog points to this story about the early movings of the Perry campaign in Southeast Texas. He notes that there are no quotes in support of a primary challenge by Kay Bailey Hutchison, but I think the evidence is a bit more mixed than that.

There is little enthusiasm for Hutchison among Republican voters, said David Teuscher, a Beaumont physician who serves on the state party’s executive committee.

“Perry is the most conservative governor we’ve had, and I can’t imagine why the Republican base wouldn’t support him,” Teuscher said.

In pushing through a redistricting plan that ousted several Democratic congressmen, balancing the budget with deep cuts rather than tax hikes and by enacting tort reform, Perry has earned the backing of the staunch conservatives who vote in Republican primaries, Teuscher said.


Some local Republican activists, however, still are undecided. Shane Howard, who started the Southeast Texas Young Republicans earlier this year, said although he’s satisfied with Perry, he would take a close look at Hutchison if she enters the race.


State Rep. Mike Hamilton, R-Mauriceville, who clashed with Perry over redistricting, voting against the Republican-sponsored map on grounds it hurt rural areas, said he will wait until the legislative session ends before deciding which candidate to support.

It’s easy enough to see why the State Republican Executive Committee would like to project an image of Perry as unbeatable in the primary, but I don’t think reality will necessarily cooperate. Hutchison is more appealing than Perry in many ways, and she has a lot less baggage to carry. If she does get in this race, she’ll have an excellent shot at it.

Meanwhile, over at Polstate, Vince Leibowitz offers a variety of scenarios on the Democratic side, and breaks the news that Barbara Radnofsky is officially in as a candidate for Senate. The news isn’t on her campaign website yet, but she’s been exploring this race for some time now, and given the challenge it would be, an early start would be a good idea.

What now for Andrea Yates?

The updated Chron story on the overturning of Andrea Yates’ convictions has some info on what might come next.

The decision means that if prosecutors cannot get Yates’ capital murder conviction restored through appeals, they will have to decide whether to put Yates on trial again.

“We are going to ask for a rehearing,” Assistant District Attorney Alan Curry said.


Prosecutors said Thursday that they will ask the 1st Court of Appeals to reconsider its ruling. If that is unsuccessful, they expect to take the case to the Texas Court of Criminal Appeals, the state’s highest court.

Prosecutors argued that Dietz’s remarks about the TV program were peripheral, compared with other evidence suggesting Yates was guilty and sane at the time of the killings.

If the appeals court’s ruling is upheld, the District Attorney’s Office will have to decide whether to seek a new trial.

Texas law allows for a new trial if a witness gives false testimony that may have influenced the verdict, legal experts said.

The decision surprised juror Leona Baker, who said Thursday she and the other jurors discounted Dietz’s testimony, saying it did not have any weight in their decision to convict Yates.

“We heard (Dietz) talk about the episode of Law & Order, but it was never made clear that she actually watched that particular episode,” Baker said.

Dru Stevenson, a criminal law professor at the South Texas College of Law, said the ruling didn’t surprise him, adding that the testimony was “prejudicial.”

Yates’ attorneys said they would represent her again if a new trial is ordered, but Stevenson said that is unlikely.

“If I was a betting man, I would bet they will reach some sort of plea bargain,” he said.

Yates’ husband, Rusty, who filed for divorce in July, said on CNN’s Larry King Live Thursday that he believes prosecutors should not pursue the case.

“I would like to see them drop the charges against her, and I would like to see her go to a state mental hospital until she is stable,” he said. “I say safe, stable medically. I’d say it would be a few years.

I’d say it would be more than a few years, and if it’s the rest of her life, that’s OK. She’s a very ill person, and that isn’t going to be resolved any time soon.

Yates’ mother, Jutta Karin Kennedy reacts to the decision:

“I have mixed emotions,” said Kennedy, exhausted after spending the day talking to reporters and answering calls from friends and well-wishers. “If this does any good, I’ll be happy. I just don’t know.”

Kennedy alternated between feelings of vindication — she has said all along that Andrea was not murderous, but mentally ill — and fear of a new trial with the same outcome.

She sighed heavily, not sure if she or her 40-year-old daughter could face that ordeal.

Since Yates has been at Skyview, near Rusk in northeast Texas, her mom has visited several times a month.

“It’s a good day when I can go visit,” Kennedy said. The other days are harder.

Kennedy said she got the news of the conviction reversal when the anchors for NBC’s Today show, Katie Couric and Matt Lauer, called about 7 a.m.

“I was speechless, shaking,” she said. “The decision came out of the blue. I wasn’t expecting to hear anything for four to six months.”

She believes her daughter got the news an hour or two later from a Skyview warden. For now, she can only guess Yates’ reaction. “I think she’s been hoping for a reduction in her sentence. I just don’t know.”

One person I’m not feeling a lot of sympathy for is Dr. Park Dietz, whose incorrect testimony was the cause of the reversal.

“In a case like this, you ought to be very, very sure that the testimony you are giving is accurate,” said Lucy Puryear, a forensic psychiatrist at Baylor College of Medicine who testified in Yates’ defense. “I was incredulous that in a case where someone’s life depended on it, that he could give testimony that was wrong, and so egregiously wrong it could have had an influence on the decision of the jury.”


Dietz did not return phone calls for comment. In a prepared statement issued Thursday, he said he made an honest mistake in part because he had not anticipated answering questions about Law & Order.

“My spontaneous recall about particular shows is admittedly imperfect,” Dietz said.

One of Puryear’s Baylor colleagues, psychiatry professor Victor Scarano, said Dietz’s gaffe is hard to understand given his reputation for thoroughness.

“He is usually very careful about what he does,” Scarano said. “When we do our work, we usually are very scrupulous that what we have are the facts. We understand that we are going to be vulnerable to cross-examination, so we have to have our ducks in a row. How this happened, I don’t know. Unfortunately, it will hurt him.”

After the Yates case, Dietz was retained by Tyler prosecutors pursuing a capital murder conviction for Deanna Laney, charged with bludgeoning two of her children to death in 2003. Dietz surprised prosecutors by concluding that Laney, who said she was acting under orders from God, was “a textbook case” of insanity. Laney was found not guilty.

That shows he’s not just a gun for hire, supporters say.

“Dietz is to my knowledge just as honest and ethical as he can be,” said William Reid, a Texas forensic psychiatrist who, like Dietz, has served as president of the American Academy of Psychiatry and the Law. “He has felt extremely badly about his error. I’ve talked to him personally about it and heard him speak to others.”

Reid said he did not think the mistake ultimately will affect Dietz’s credibility or his popularity as a witness.

“It was an accident on his part,” Reid said. “He did give an off-the-cuff answer that there had been this episode. The person who took it to the next level and said (Yates) had seen it was the prosecutor.”

Finally, Hotshot Casey notes that a reporter who knew Law & Order producer Dick Wolf was in the courtroom when Dietz was testifying. She was the one who verified that he’d erred, after making a call to Wolf. I disagree with Casey’s statement that the phantom L&O episode would never have been figured out had she not been there. You can find L&O episode guides if you look, and I think sooner or later someone would have checked into it. No question, though, that we wouldn’t be where we are now without that bit of serendipity to help.

UPDATE: Missed the Chron editorial calling for a plea bargain. Via Ginger.

Quantify this

In this article about the productive bench of the Rice Owls men’s basketball team, writer Moisekapenda Bower makes a strange assertion about Owl swingman Jamal Moore.

His energy and stifling defense, intangibles statistics can’t quantify, are as valuable as [teammate Brock] Gillespie’s penchant for hitting timely treys.

Emphasis mine. Since when is defense unquantifiable in basksetball? Last I checked, steals, blocked shots, and defensive rebounds all counted as defensive statistics. And some of the more sabermetric stats, like plus/minus ratio (the difference between the points your team scores when you’re on the floor and the points their team scores) and defensive efficiency (points per possession for the opposing team, also calculated while the given player is on the floor) take into account the effect of forcing turnovers, which is a measure of hustle and energy. I don’t know if Bower got lazy here or if he really believes in that “intangibles” shinola, but either way this was a dumb thing to say.