Simpson P.C.

I apologize in advance for the shamelessly “homerish” tone of what follows, but I felt the need to write this.  I’ve been in Houston for many, many years now, and I see things happening that I am proud to see.  I think we are doing well.

A few days ago, I had need to visit the Clerk’s office of the Fourteenth Court of Appeals.  The Clerk’s office is in the same building as the Court, itself, the recently restored 1910 Harris County courthouse, which has now become home to the Fourteenth and also to the First Court of Appeals.  I parked on Preston Street, in the area known as Market Square, and headed southeast toward the courthouse.

As I walked by the corner of Preston and Travis Street, I saw the beginnings of a mural that was being drawn and painted on a two-story wall.  The painting was in its infancy, but the outlines of the mural were already drawn.  It was a drawing of Houston’s downtown skyline with the word “Houston” prominently displayed in the middle of it all.  Colors were being filled in, bit by bit, though the end product was far from complete.  Nevertheless, it was obvious, even at this early stage, that the end product would be full of vibrant color and energy.

And I thought to myself:  “This wouldn’t have happened ten or twelve years ago.”

Because, strangely, I think I find myself in a city that is experiencing a renaissance.  Houston has, for many years, had a civic inferiority complex.  There have been scams and scandals here, but nothing that would draw anyone in; nothing—besides money —that would make them want to be here.  But, it seems that may be coming to an end.  What I see recently is a new sense of pride.  It’s been tried before, but this time it seems like it’s sticking.

Suddenly, Houston is cool.  Houston is a destination.  Even in neighborhoods off the beaten path (and I include my own humble home which has become known as “the GOOF,” where new restaurants and one of the best craft beer bars in the country now reside), there seems to be a sense of possibility and maybe a feeling that there is actually something unique here and worth exploring.  Maybe it’s a transient thing.  Maybe it’s just the fact that Houston survived the recent economic turmoil with less fallout than most cities.  Maybe having a job constitutes being hip, these days.

The truth is that the Bayou City (yes, that’s what we call it) has always been a strange amalgam of go-for-broke business (see, the Allen brothers), artistry, and immigration.  Houston is now the most ethnically diverse city in the entire country, and it’s a leading indicator of where the country is going, ethnically, politically, and demographically.  It’s increasingly progressive.  And now, it’s being discovered.  It‘s kind of nice.  Because there’s always been a lot here.  We’re still building, but it’s not done yet.  We’re still making it better, because it needs to be and because we can.  And if we weren’t, we’d be abandoning the very foundation of Houston’s success.  If there’s one thing I’ve learned from being here, it’s that Houston doesn’t stand still.  That’s just not the way we do things here.

UPDATE:   And the Daily Beast confirms it.

In my other life (the one outside of the legal profession), I’m a pretty avid cyclist and have been for over a decade.  This translates to my going out on weekend bike rides of 40-50 miles a pop for most of the year and usually riding at least one significant two-day tour (think, MS150) each year.  For most of the time I’ve been a serious cyclist, Lance Armstrong has been the central figure in the professional sport, or, at least, the one best known to everyone in the U.S.

You can call Armstrong a lot of things:  a Tour de France champion, a fierce competitor, an arrogant opportunist, and a philanthropist.  And for a lot of years, a number of authorities have been trying to pin another label on him:  dope cheat.

Professional cycling has been a dirty sport for a lot of years.  It becomes understandable when you see what riders in one of the major tours put themselves through—thousands of miles up seemingly impossible climbs and through all manner of conditions.  And at the end of weeks of racing, a few seconds can decide the winner from the also-rans.  Doping became a huge and shameful part of the sport, and the efforts have only recently gotten serious in cracking down on it.

For his part, Armstrong presented a script that Hollywood couldn’t have written any better.  A cancer survivor—and barely, at that—who came back to, not just win, but dominate on the biggest stage his sport has to offer.  Add to this the fact that he used his new-found fame to raise millions of dollars for cancer research and to improve the lives of people suffering from cancer, and it’s a story that seems too good to be true.  And the U. S. Anti-Doping Agency says it is.

Anti-doping forces have been pursuing Armstrong for years, accompanied by members of the media—including a very vocal French contingent—who believe he cheated to win France’s signature sporting event.  But, during his career and the thousands of drug tests that involved, no one ever nailed Armstrong.  He passed every test, if not with flying colors, at least sufficiently to prevent his accusers from proving their case.  Nevertheless, this week USADA purportedly stripped Armstrong of all seven of his Tour de France titles and obliterated fourteen years of his career.  And this bothers me for a number of reasons.

Everyone agrees that urine and blood testing is the gold standard for finding out if an athlete has been doping. As mentioned, that kind of testing was done on Armstrong to an incredible extent, and he never failed a test that actually lived up to the appropriate procedural.  (I have heard it said that some of Armstrong’s test results were thrown out based on “technicalities.”  What the media tends to call “technicalities” are often what we in the law call “fundamental rights” and this isn’t the place for me to expound on my loathing of the term “technicalities.”  Suffice to say, the USADA couldn’t get the job done with its testing.)  When USADA realized it couldn’t convict Armstrong with scientific evidence, it turned to anecdotal evidence–testimony from teammates and former teammates, some desperately trying to clear their own names or find someone else to blame for their own getting caught (see Floyd Landis).

Secondly, Armstrong has now said that he’s not going to fight the allegations anymore. The USADA’s reaction was that his refusal to contest the allegations was being taken as an admission of guilt. That’s rubbish. Absent a duty to speak, silence is not a confession of anything. USADA has taken the position that, because Armstrong won’t engage it anymore, it is now free to dispense with the burden of proof altogether and jump straight to “guilty.”

Third and finally, there is the question of the tactics employed by USADA, WADA, and other anti-doping crusaders. As I’ve written before, these people strike me as true zealots, and their tactics raise some serious questions about privacy and propriety. Riding in a bike race doesn’t mean giving up all rights to privacy and to due process.  So do I think Armstrong is innocent? Probably, no. I’d like to think so, and I still hope so. The truth is I don’t know. But do I think he’s been shown to be guilty and given his procedural due? Absolutely, unequivocally, positively, no.

For my part, I will continue to admire Armstrong.  Even if his Tour wins were tainted, there is plenty of likelihood that he was no worse than anyone else participating.  Moreover, the symbol of Armstrong will always be at the forefront.  Having seen my father succumb to cancer and having witnessed my wife haunted by its specter, what Armstrong has done for cancer awareness and funding is bigger than anything else he might or might not have done.  Ever.  I will continue to wear my LIVESTRONG bracelet every day, even in court.  And when it breaks, I’ll go buy another.  Because sports isn’t just about competition; it’s about myth-making.  And sometimes we need the myth more than we need the man.

Okay, this is the kind of stuff that makes me love being a lawyer.  Some people practice for the money; some do it for the prestige; some do it because they honestly are doing good things, great things even, that are so, so necessary for our system of justice.  But I’m shallow compared to them, and I admit it.  I just love the clever argument, and I love being the one to make it.  And that’s why I would have given up my Spiderman PJs to be the lawyer for Toy Biz, Inc., who came up with this gem.  And the connection to the superhero comics of my youth is just an added bonus.

It seems there’s a distinction between “toys” and “dolls” when it comes to import duties.  Let’s face it.  All these things are manufactured in China and shipped into the U.S.A.  When Toy Biz moved to import a bunch of “action figures” from the Marvel Comics universe—specifically, the X-Men, Spiderman, and the Fantastic Four—it was told that they’d be subject to the 12% ad valorem import tax rate on “dolls.”  This was as opposed to the 6.8% ad valorem duty on “toys.”  How did Toy Biz answer?

It argued that the “action figures” at issue “are properly classifiable as ‘Toys representing animals or other non-human creatures (for example, robots and monsters) and parts and accessories thereof: Other.’”  In other words, they said the X-Men aren’t human.  Whatever your position on Mutant Rights, that argument is terrific.  And it won.

Of course, this leaves me thinking:  what is the fate of Iron Man (aka Tony Stark)?  It’s only the suit that makes him “super,” so does the Tony Stark (Iron Man suit) version get treated differently from the Tony Stark (Armani suit) version?  And really, he’s the same guy, either way.  So what happens?

Incidentally, if anyone wants to contact me about this . . . really, for whatever reason . . . my information is on this site.  Just sayin’.

Well here’s something to think about the next time you’re on Facebook.  The Department of Homeland Security has released (under duress, according to the Daily Mail) a list of keywords and phrases it uses to monitor social networking sites and online media for signs of terrorist or other threats against the U.S.  The list runs from “Al Qaeda” to “Los Zetas” with stops in-between at “chemical agent,” “ebola,” and “nuclear facility.”  Damn, there goes my next tweet.

But what does this mean for the average person?

Well, it means if you live in D.C., Atlanta, or San Francisco and you ride public transport, Big Brother is watching because WMATA, MARTA, and BART are all on the list.  Fans of heavy metal might want to reconsider their love for Anthrax, and shoppers might think about transferring their allegiances to J.C. Penney because Target has a black cloud over it.  (Speaking of which, the Weathermen of the 1960s and 1970s have got nothing on the reprobation doled out to the meterologically inclined by DHS.)  Don’t even think about going near El Paso, Yuma, Tucson, or Juarez.  Actually, just stay away from the border area, altogether.  You’ll be better off.

In the sports world, “ice” skating is out, but roller skating appears to be okay.  They should be able to re-vamp things in time for the Stanley Cup Finals.  Oh, and USC fans (and condom enthusiasts, I guess)?  “Trojan” is on the list, too.  So it’s time for a new mascot.

Even Jerry’s Kids aren’t immune.  (Okay, that was awful, I admit it.)  “MDA” also means “maritime domain awareness,” and that is most definitely on the list.  And don’t say those poor kids are “sick.”  Because that’s on the list, too.

It’s enough to make you want to stop speaking altogether.  But don’t do it.  Just be careful.  Relax.  Treat yourself to lunch.  (But not “pork” chops or sandwiches.)   And stay away from “social media” because we always knew that stuff was “toxic” anyway.

It’s not unusual to see athletes either skirting controversy in the understandable name of good business or suddenly developing principles when the “not guilty” verdict—or plea to a lesser crime—comes in.  So it’s refreshing to see a case like that of Joseph Williams, a junior walk-on for the University of Virginia’s football program.  As of February 23, Williams was in the seventh day of a hunger strike “to protest the economic and social injustices perpetrated by the UVa administration against the vast majority of the University’s service-sector employees.”  In particular, Williams calls out top University administrators who are among the highest-paid state employees in Virginia while noting that hundreds of the University’s contract employees are paid as little as $7.25/hour.  He also calls out the University for moral hypocrisy and calls for a living wage for University employees.

Williams, himself, comes from a difficult background.  By his own account, he grew up as one of four children supported by a single mother and lived in 30 different places—several of them homeless shelters—before graduating high school at age 16.  As a result, it would seem Williams knows a thing or two about living with economic hardship.

Of course, Williams doesn’t have as much at stake as did Michael Jordan when he reportedly commented that “Republicans buy shoes, too.”  But there’s still something nice about seeing a student-athlete—and a football player, in particular—who is willing to tilt at some windmills in the name of his principles.   And it’s nice to see him having principles before he needs them to repair a fractured image.

Tip o’ the hat to Dr. Saturday.

Texas fanboys, rejoice!  Houston has its own version of Spiderman in the Marvel Comics universe.  The character is Scarlet Spider, a clone of the original Spiderman but one with a checkered past who is now trying to go straight while leading a life in the Bayou City.  Or at least, straighter, to judge by the caption at the top of issue #1—“All of the Power.  None of the Responsibility.”

Yep, sounds kinda like Houston.

According to the series’ creators, Scarlet will be doing battle with a variety of baddies—Salamander, an assassins’ guild from New Orleans, and the pinnacle of evil in the Marvel universe—Roxxon Corporation, a conglomerate having its headquarters in Houston.  Huh…wonder where they got the idea for that one…there’s more than one possibility.

But, of course, the first question that crossed my mind was “how’s he gonna get around?”  I mean, outside of downtown, of course.  The original webslinger is well known for swinging from the highrise buildings and towers of Manhattan, but outside of downtown and a few select areas, Houston offers no such easy transit for a would-be superhero.  Perhaps Scarlet Spider’s writers are going to have to get a little creative to help their protagonist beat the everyday villain in Houston—rush-hour traffic.  It would take a bit of the “super” out of the “superhero” to think of him having to catch the bus from Smith Street out to Greenway Plaza.

A college friend of mine (he was ROTC, then; active-duty Army for 20 years; and now retired) used to tell me that the season for the U.S. Army football team was one game long.  Everything leading up to the annual clash with the Midshipmen of the U.S. Naval Academy was nothing but preseason.  Navy was the only game that mattered.

In his excellent book, A Civil War, John Feinstein explored a season at the two service academies, moving between West Point and Annapolis and ultimately covering their annual meeting at Veterans’ Stadium, Philadelphia.  One of Feinstein’s observations—and one that’s almost a cliche when it comes to talking about the service academy teams—is that they play against one another but ultimately wind up on the same team.  But I think there’s a bigger lesson these schools teach us.

The language of sports has a lot in common with the language of war.  The media and athletes themselves hype games as epic battles and confrontations, players are lauded as “warriors,” and results are treated with solemnity.  But the stakes in sports are low.  Ultimately, it’s just a game.  While the teams from Army and Navy may play their hearts out on the field, they know that fact better than anyone.  Their ultimate duty and the mission they serve is no game.

In sports, as in much of life, we have a tendency to elevate conflict.  Lawyers can be very bad about this.  Litigation becomes about everything but justice, and personal conflict and pride dictates how cases are handled.  An adversarial process necessarily involves conflict, but we owe it to the system we serve not to make it the centerpiece.  We could all take a lesson from those men out on the field.  The day we risk what they do, we can call it more than a game.

I often think that we in the legal community do a poor job of educating the general public as to what our system of justice is all about.  Few times has that been more obvious to me than in the recent case of Mary Ann Rivera, a woman accused of murder.  Rivera allegedly murdered her husband by dousing him with hot grease in 1970.  She was indicted the same year but was never served with an arrest warrant and never actually arrested until last month—41 years after the event in question.

There’s no statute of limitations for murder in Texas (or anywhere else in the U.S., that I’m aware), but the Constitution requires a speedy trial after indictment.  Rivera’s indictment happened in 1970, and, this week, a Harris County judge held that trying her at this point would violate her right to a speedy trial and required dismissal of the charges against her.

To read the comments on virtually any online account of the case, you’d think an enormous travesty had occurred, rather than the upholding of a basic Constitutional right.  They scream that there’s no limitations period for murder and that this woman is skating, scot-free, from a killing that she obviously committed.  Rarely does anyone call the state to task for failing to exercise diligence in its prosecution of her in a timely manner, while evidence is fresh and recollections could serve to either condemn or exonerate her.

Internet message boards are, admittedly, a very bad place to check the pulse of the general public, but it’s disturbing to think that there are so many people who obviously are sufficiently engaged to read and comment on a subject but, simultaneously, are so misinformed.  The decision in Rivera’s case had nothing to do with limitations but was about her Constitutional rights.  The statute of limitations—even if it existed—ceased to be an issue when the state indicted her.  At that point, her right to face her accusers and review the evidence against her in a timely fashion became the issue, and it was a point where the state failed miserably.

Whatever the evidence against Rivera might have shown, that evidence is now hopelessly stale.  There’s a reason why statutes of limitation and the right to a speedy trial exist.  Memories fade, and physical evidence gets lost or deteriorates.  But that doesn’t matter to those who have already convicted Rivera by the mere fact of her indictment 41 years ago.  (Don’t get me started on the fact that many of the same people who would convict Rivera will tell you that a civil suit filed last week is meritless.  Apparently the state’s burden is nothing as compared to a civil plaintiff’s burden, contrary to everything our justice system has ever said.)

It got me thinking about the whole modern concept of justice in Texas, which I’m convinced has much more to do with the Old Testament than with the Constitution or anything the Texas Legislature has ever passed—at least, to a subset of the public.  We, as lawyers, need to do a better job of educating the public as to what exactly justice means in our system.  It’s no longer about “an eye for an eye” or vengeance.  That notion went out the window long ago.  Of course, this mission might be helped if certain of our elected representatives didn’t proclaim the opposite by their words and deeds.