Friday, August 29, 2008

"No Refusal" weekend

The best way to avoid a DWI in Harris County (or the surrounding counties) this weekend is NOT to drive if you've been drinking -- call a cab or call a friend. It's not worth the headache, the hassle or the money you're going to have to pay an attorney.

Houston-area police start holiday DWI crackdown
'No refusal' program allows quick warrants to take blood, if drivers refuse

By ERIC HANSON Copyright 2008 Houston Chronicle
Aug. 29, 2008, 8:14AM

Jessica Kourkounis For the Chronicle
Harris County Assistant District Attorney Warren Diepraam says blood samples provide powerful evidence in DWI cases.

RICHMOND — Police in several Houston-area counties will conduct special DWI operations over the Labor Day holiday weekend, including a program in which officers can get search warrants to obtain blood samples from drivers.

The "no-refusal" program allows a police to contact a judge, in person or by phone, and obtain a search warrant if a motorist suspected of driving while intoxicated refuses to provide a breath or blood sample.

Some counties, including Wharton and Waller, obtain blood samples through warrants on all cases. Others, such as Fort Bend and Harris counties, do it during special enforcement periods.
Assistant Harris County District Attorney Warren Diepraam said a blood sample is much stronger evidence.

"Juries really just don't question blood. They expect scientific evidence," he said. "We know they trust blood more than anything else."

Although a special operation will be conducted this weekend to draw blood, police can seek a search warrant for body fluids any time a judge determines there is probable cause.
Diepraam said the first official Harris County no-refusal program was conducted on Memorial Day 2007.

Fort Bend County will begin its no-refusal operation today, said District Attorney John Healey.
Healey said a person certified to draw blood, such as a nurse or emergency medical technician, will take the samples. Judges will be available to issue warrants in person or by fax, he said.
Texas courts have ruled that the no-refusal programs are legal, he said.

Healey added that providing a blood sample can be beneficial for drivers who are not intoxicated. In at least one instance, he said, a DWI charge was dismissed because police obtained a blood sample that showed an alcohol level below the legal threshold.

"This individual might have gone through a trial, and potentially could have been convicted, but for the fact that his blood was drawn and analyzed," Healey said.
But, some defense attorneys, including Patrick McCann, former president of the Harris County Bar Association, said sanctions already are in place for people who refuse to provide blood or breath samples.

State law allows a person's driver's license to be taken away for refusing to provide a sample, he said.

And, McCann said, the no-refusal process makes judges part of the prosecution team.
"It removes any pretense of a neutral magistrate and an objective ruling," he said.

In Montgomery County, District Attorney Michael McDougal said county law officers will conduct no-refusal operations from 8 p.m. Saturday until 5 a.m. Sunday.

"Saturday night is probably the busiest night," McDougal said.

Harris County's anti-DWI operations will be centralized at the old Houston police headquarters at 61 Reisner.

Diepraam said judges, nurses and prosecutors will be stationed there and police from all Harris County agencies can bring DWI suspects to the station.

Unlike in Fort Bend County, police in Harris County will be seeking blood samples rather than breath samples.

"If they refuse to provide a sample of blood to the police, that is when we get involved," Diepraam said. "We draft a search warrant and present it to the judge and if the judge signs it, we give it to the nurse and take the suspect's blood."

Diepraam said police must have evidence of intoxication, such as slurred speech, bloodshot eyes, alcohol odors and lack of balance.

"There are all sorts of protection in place," he said. "They are not pulling over people and arresting them and taking blood. That couldn't be further from the truth."

On a busy holiday weekend, he said, police may bring in 15 people in one night.

Although Brazoria and Galveston counties are not conducting no-refusal operations, they will have extra enforcement on the roads over the holiday weekend.

The Impaired Driving Mobilization Program, funded with grant money from the Texas Department of Transportation, puts additional officers on the street during peak hours, said Sheriff Gean Leonard.

The Texas Department of Public Safety also is increasing enforcement efforts over the Labor Day weekend.

State officials said all available troopers will be on duty Friday, through Monday looking for drunk drivers and other violators.

"Alcohol is a big concern this time of year, because this is the last big recreational weekend of the summer," said DPS Director Col. Thomas A. Davis Jr.

During Labor Day last year, DPS troopers arrested 912 people on DWI charges and issued nearly 16,000 speeding citations and more than 3,000 seat belt and child restraint tickets.
In all, troopers wrote almost 34,000 tickets and 12,000 warnings during the Labor Day holidays last year.

Thursday, August 28, 2008

What comes around, goes around

U.S. District Judge Samuel Kent made history on Thursday as he became the first federal judge to be indicted for a federal sex crime. What began as a claim of sexual harassment by former case manager, Cathy McBroom, mushroomed as attorneys from the Department of Justice's Public Integrity Section completed their investigation.

Judge Kent will surrender on Wednesday for his initial court appearance.

It seems that Judge Kent, who decorated his opinions with sarcasm and contempt, forgot the first rule of this dog-eat-dog world: always be nice to the people on whom you step on the way up as it makes the trip back down a little more pleasant.

Wednesday, August 27, 2008

Jail can be a deadly place

As reported in Grits for Breakfast, a federal jury ordered Dallas County to pay $900,000 to the family of man who died while in custody at the Dallas County Jail. It wasn't the first time Dallas County has had to pay for its failure to provide medical care for its inmates. In February 2007, the county paid $950,000 to the families of three mentally-ill inmates who died as a result of the jail's negligence.
Dallas-area criminal defense attorney Robert Guest adds that the Dallas County Jail is one of the most dangerous jails in Texas.

Yet we insist on locking up those citizens arrested for possessing negligible amounts of marijuana and crack cocaine. That may change when the new Harris County DA takes office next year as both candidates have expressed a desire to change the way in Harris County deals with citizens accused of petty offenses.

C.O. Bradford promised to use personal bonds to keep minor offenders out of the Harris County Jail while Pat Lykos has proposed a series of single room occupancy facilities in which the mentally ill and addicts could be sent and still receive treatment while their cases are pending.

The question remains whether or not any other elected officials will vote to pony up the money to fund a new initiative.

Criminalizing automobile accidents

While flipping channels late last night I came across a taped speech by Warren Diepraam of the Harris County DA's Office on one of the municipal channels. He was speaking to some group about traffic issues. Diepraam said he went to Chuck Rosenthal, the disgraced former district attorney, and asked to set up a vehicular crimes division of the office.

Diepraam went on to talk about the innovative methods being used by the attorneys in the vehicular crimes division.

When prosecutors talk about innovative methods they're really talking about finding ways to charge citizens with criminal offenses for accidental conduct or to enhance existing penalties by piling on additional charges.

Most car accidents are the result of negligent behavior on the part of one or more drivers - not criminal conduct. It's a sad fact that people who did nothing wrong die in car crashes. And although the burden is often devastating on the deceased's family, charging another person with a criminal offense because he was involved in a wreck doesn't change what happened.

Diepraam also made an interesting comment regarding "no refusal" weekends -- he stated that they were necessary because of the large number of suspects in Harris County who refuse to provide evidence to the police after being arrested for DWI. That speaks volumes to Diepraam's attitude toward the constitutional rights of citizens in Harris County.

Section 724.012 of the Texas Transportation Code governs the taking of specimens. The police may request one or more specimens of a driver's breath or blood if there are reasonable grounds to believe he was operating a motor vehicle in a public place while intoxicated. Section 724.012(b)(3) states that a peace officer is required to take a specimen of breath or blood if, at the time of the arrest, any individual died, or will die, as a result of the accident, an individual other than the suspect suffered serious bodily injury or the driver refuses to provide a specimen voluntarily when asked.

If the specimen is of blood, per Section 724.017(a), only a physician, qualified technician, chemist, registered professional nurse or licensed vocational nurse may take the sample. Additionally, the blood must be drawn in a sanitary place. Per Section 724.017(c) emergency medical services personnel are not qualified to take the sample.

A person who is incapable of refusing to submit a specimen is deemed to have consented to the request per Section 724.014(c). In other words, if you are rendered unconscious in the accident, the police can take a blood sample without even asking for it.

So much for your right against compelled self-incrimination.

Tuesday, August 26, 2008

Interrogation and false confessions

I came across some interesting articles on police interrogation methods and false confessions after my trial was continued this morning (see what The Innocence Project has to say about the matter).

There's this one from Grits for Breakfast. Stephen Gustitis wrote this piece on the psychology of confession. Charles Weisselberg, a professor at the University of California School of Law authored this article on police interrogation tactics in California.

The Reid Technique sets out 9 steps of interrogation. This method seeks to coerce a confession by use of moral justification. The interrogator limits the suspect's responses and presents him with a way out by offering him two choices -- one of which is less morally challenging than the other.

For a practical lesson in interrogation techniques, check out Homicide: A Year on the Killing Streets by David Simon. Simon spent a year with the homicide detectives of the Baltimore, MD Police Department. The television series Homicide: Life on the Street was based on his book. There is a chilling interrogation scene in the book which, if you close your eyes, you can see Andre Braugher's character, Det. Frank Pembleton, conducting.

I tell friends, clients and potential clients that if they are being accused of committing a crime, NEVER talk to the police without consulting an attorney. I have had cases in which my client all but made the case against him because of what he said to the cops. Those who are actually innocent of the charge do themselves the most harm because they have nothing to hide -- and they hide nothing.

Sunday, August 24, 2008


It's a beautiful sunny Sunday afternoon in Houston, Texas and I'm sitting in the office preparing for a DWI trial on Tuesday. It's an accident case with no breath test.

Should we go to trial, I will provide updates during the day on Twitter. Just log on/sign in and search for PaulBKennedy then select "Follow." You'll receive updates as I make them.

For those of you who haven't used Twitter, it's a micro-blogging tool that works a little like IM. But each message can be no more than 140 characters long.

Saturday, August 23, 2008

Zen and the art of voir dire

Father. Husband. Son. Brother. Uncle. Soccer coach. Poker player. Native Texan. Cook. Mechanic. Runner. Country music fan. Jazz listener. Texas ex. Attorney. Counselor. Teacher. Student. Speaker. Storyteller. Reader. Writer. Blogger. Sudoku addict. Builder. Handyman. Friend.

These are just some of the words that describe who I am.

In order to communicate with a jury you first must know who you are. Only then can you try to figure out who they are. The secret is to find enough common ground so that there is no me and they -- there is only WE. Once you've found WE then, and only then, can you ask those men and women in the box for what you want.

Friday, August 22, 2008

A day in my life

What a crazy day!

I'm set for trial on an accident/no test DWI case next week. I had an interview scheduled this morning with a witness -- but it had to be early because the witness' attorney had to be in Austin this afternoon. The only problem was that I was already set to plead out a case this morning. I also had a motion to suppress on a DWI case down in Galveston at 3pm.

No problem (I thought) after I spoke to the Judge and the court coordinator about coming in before docket call to plead it out (we already had an agreement). I asked the chief prosecutor in that court to have someone there about 8:15am to take care of the matter. When I got there, the only assistant told me he couldn't sign off on anything and I would have to wait for someone else.

Now by this time my client is freaking out -- but I had to leave the CJC no later than 9am to interview my witness. So I head out to my car to go.

Once I get to the other lawyer's office I have to wait because she's taking a recorded statement from someone. In the meantime I get a phone call from a client in a civil case that settled wanting to come in and sign the release. I tell him to come to the office at noon.

Then I got a call from the court coordinator in Galveston wanting to know if we could move the hearing on the motion to suppress to 1:30pm. I told her "no" but suggested 2pm as a compromise. I was kissing lunch goodbye.

I called my client on that case to let her know the new time and she asked me if we could just reschedule the hearing?!?! I politely told her she needed to be at the courthouse an hour earlier.

I finally sat down to interview the witness. I get the information I need and head back to the CJC sometime after 10am.

I get back to the original court and find my client. We approach the Judge and enter the plea (a DWI-first in Texas -- following 3 DUI's in Georgia in the 90's). I had already prepared my client for the realization her driver's license would be suspended when the Judge hands up a gift -- he didn't suspend her license. Unbelievable. I must have earned some capital in his court after trying a breath test case at the end of July.
Next I needed to run upstairs to another court to look at business records filed by the State prior to next week's trial. But to my great surprise -- there were no business records on file! The prosecutor called me later to tell me she couldn't find any records filed by the prior prosecutor on the case.

Now I had to gas up for my drive down to Galveston and get to the office to meet my noon appointment. We signed the release and then I attempted to fax it over to the defense attorney so we could get a check cut. Ooops -- big mistake. The minutes flew by as I attempted to get it all done. Now I was going to be cutting it VERY CLOSE on the Galveston hearing.

I decide to take I-10 to the Gulf Freeway instead of Memorial Drive, figuring it would be quicker at 1pm. Boy was that a dumb decision. The traffic getting around downtown was horrible -- now there was no time for a splash and dash at the Whataburger in LaMarque!

I finally get down to the courthouse and pull into the parking lot at 2pm. Through the metal detector and up to the 2nd floor and it was time to argue.

I thought we had a decent shot at getting the arrest (and the .18 breath test) tossed out. The officer wrote in his report that he stopped my client for having a defective license plate lamp. All I needed to do was get him to say he was more than 50 feet from her when he made up his mind to stop her. Things went well until i asked him how far away from my client's car he was when he first spotted the defective license plate lamp.

I knew it was over when he said "Five feet." Now the hearing turned into a deposition. We may have lost the hearing but I've got the officer's (ridiculous) story on the record for use at trial. He started adding detail to a 1-year-old offense report without field notes. He claimed to remember that my client stopped walking 3 times on the Walk and Turn test and that she almost fell over (funny how those details were noted in the report he filed the night of the arrest). At the same time, however, he couldn't recall how many times she stepped off the line, how many times she missed a heel-to-toe and how she messed up the turn. This is going to be fun when we finally get to trial (scheduled for November).

My day done it was time to head back to Houston for dinner with my wife, two girls and her folks. But first I had to stop at Whataburger for lunch -- at 3:30pm.

At about 5 minutes after 5pm my work day was officially over as my oldest daughter jumped into my arms when I got to my in-laws place.

A crazy, exhausting day -- but a good one, nonetheless.

Thursday, August 21, 2008

Drink. Drive. Go to Jail?

NHTSA's new DWI enforcement campaign is now underway through Labor Day and, once again, it's time to remind our fellow citizens of what the law is in Texas.

It is NOT a crime to consume alcohol and get behind the wheel of a car in Texas (unless you're a minor). The crime occurs if someone gets behind the wheel after they have lost the normal use of their mental faculties, their physical faculties or if they have an alcohol concentration of .08 or higher.

The easiest way to avoid being caught up in the DWI web is not to drive if you've consumed alcohol - call a cab, catch a ride with friends or give your keys to a designated driver. If you are going to drink and drive, you need to limit your consumption to no more than one drink an hour (the amount of alcohol your body can eliminate in an hour).

BTW, a very interesting posting from Mr. Lawrence Taylor on MADD and their drive to have interlock devices installed on all new cars.

Wednesday, August 20, 2008

Loss of normal use...

According to the DWI statute in Texas, the state can prove a citizen is intoxicated in one of three ways:

1. Loss of the normal use of one's mental faculties due to the introduction of
alcohol, a drug, a controlled substance, or a combination thereof, into the
2. Loss of the normal use of one's physical faculties due to the introduction of alcohol, a drug, a controlled substance, or a combination thereof, into the body; or
3. Having an alcohol concentration of .08 or higher.
There are two training manuals that are a must have for any lawyer who practices DWI defense in Texas - DWI Detection and Standardized Field Sobriety Testing (published by NHTSA) and the Texas Breath Alcohol Testing Program Operator Manual (published by the Texas Department of Public Safety).

Both of these manuals may be used to impeach the state's witnesses on the subject of "loss of normal use." A criminal defense attorney who knows what he's doing can cross-examine the state's witnesses with these manuals through the "learned treatise" exception to the hearsay rule.

According to the breath test manual, "[i]t is not the alcohol in the peripheral areas of the body which impairs a person's coordination, but the alcohol concentration in the CNS (central nervous system) tissue." This seems to indicate that it's not the concentration of alcohol in a person's breath that is critical -- it's the concentration of alcohol in a person's central nervous system (brain, brain stem and spinal cord) that is critical.

The breath test manual goes on to state that "[t]he first effect of alcohol is the impairment of judgment." That's because "[a]lcohol affects the brain in reverse order of how the brain develops." In other words, the higher level brain functions, such as judgment, logic and reason are affected before the lower level brain functions, such as breathing and digestion. According to the breath test manual, "[p]sychomotor skills are motor actions (physical faculties) proceeding directly from mental activity."

The NHTSA manual states that alcohol "doesn't affect a person until it gets into their central nervous system, i.e. the brain, brain stem and spinal cord."

This is important because the manuals the state uses to train its experts tell us that alcohol affects one's mental faculties before it affect's one's physical faculties. Thus, evidence indicating the citizen accused had the use of his mental faculties at the time of driving can be used to refute the state's argument that if a person performs poorly on the police coordination exercises, he must be intoxicated.

Now when you ask the arresting officer or the state's breath test expert whether alcohol affects one's mental or physical faculties first, and he tells the jury alcohol affects them both equally, you can pull out your manuals and read the training material that contradicts his "expert" testimony. But in order to do that, you have to know what's in those manuals.

If you're defending citizens accused of DWI, and you don't want to commit malpractice, you need to get those manuals ASAP.


Today is my daughter's first day of school. I just got back from dropping her off. Always remember what's important because it all goes by so fast.

Life isn't just about what goes on at the courthouse and the office. In order to be a better attorney, or just a better person, you have to have balance in your life.

These are the kinds of moments that jurors experience. You need to know how they feel and think if you want them to say the two sweetest words in our profession -- "not guilty."

Tuesday, August 19, 2008

Actual innocence

One of the hardest tasks for a criminal defense attorney is to defend a citizen who is (absolutely) innocent of the charge filed against him. The actually innocent citizen expects a dismissal or, if the prosecutor won't listen to reason, an acquittal.

The job becomes thankless as the process drags on and the innocent citizen is inconvenienced by having to take off work, drive downtown, pay for parking and sit in the courthouse for hours.

I had a client who had been charged with stealing books from a university bookstore. We had a dozen alibi witnesses who would have testified that he was in class at the time of the theft. There was an eyewitness who described the thief to the police -- but her description bore no resemblance to my client. Given all of that, it still took multiple settings before the prosecutor found the courage to let the case go.

After the ordeal was over, my client looked at me and asked how he could get his reputation back -- I had no answer for him. We couldn't even get an expunction because the statute of limitations hadn't run and the DPS would oppose it.

Monday, August 18, 2008

Out of whack

You can get deferred adjudication for murder, rape and burglary in the State of Texas -- but not for the heinous offense of driving while intoxicated.

Deferred adjudication, sometimes referred to (tongue-in-cheek) as deferred prosecution, is a carrot-and-stick sentence in which a citizen is placed on probation for a period of time and, should he complete the terms of that probation, the case is subsequently dismissed. The citizen then has the right to an order of nondisclosure of all records related to the case and can deny, under oath, that he was ever charged with the offense. It must be pointed out, however, that some offenses are not eligible for non-disclosure.

Deferred can offer a first-time offender a "do-over" should he or she get back on track -- though the penalties for screwing up can be quite severe.

But if you're unfortunate enough to be arrested for DWI -- a misdemeanor -- that option is unavailable and, unless the case is dismissed or you are found not guilty at trial, you will forever be labeled as a CRIMINAL by the State of Texas.

Saturday, August 16, 2008

Is the State of Texas guilty of murder?

In 2004, Cameron Willingham, a Corsicana auto mechanic convicted of setting the fire that killed his 1-year-old twins and 2-year-old stepdaughter, was executed by the State of Texas. Today, 17 years after the fire, there are questions regarding his conviction.

Mr. Willingham went to his death proclaiming his innocence. Rick Perry, the Texas governor, and state judges, ignored a report from Mr. Gerald Hurst, a prominent fire scientist, that questioned the conclusions of the state's expert witness at Mr. Willingham's trial.

At Willingham's trial, Deputy State Fire Marshal Manuel Vasquez, now deceased, testified that he concluded the fire was set deliberately due to "pour patterns" and "puddle configurations" on the floor. He also testified that his determination that the fire had originated in three locations solidified his opinion that the deadly fire was the result of arson. He also accused Mr. Willingham of lying to him during the investigation.

As a result of an investigation by The Innocence Project, a panel of national fire experts stated that the expert testimony in Mr. Willingham's trial was based on outdated and invalid investigative methods.

Mr. Alan Levy, a member of the Texas Forensic Science Commission, created in response to the scandal involving the Houston Police Department Crime Lab, told Mr. Gabriel Oberfield of The Innnocence Project that the state of science regarding arson was "dismal." Regardless of the standards at the time of Mr. Willingham's conviction, the techniques and methods used by forensic experts had improved by the time of his execution.

Investigators from The Innocence Project concluded that the evidence found at the site was consistent with a "flashover" caused by the intense heat inside the house at the time of the fire. Investigators also found that Mr. Vasquez' contention that the fire had started in three separate locations was incorrect -- the locations Mr. Vasquez spoke of were contiguous. The investigators also contend that the only way to determine if an accelerant was used is to conduct laboratory tests on residue from the scene -- something that was not done during the initial police investigation.

John Jackson, the Navarro County District Attorney at the time of Mr. Willingham's trial, is now a state district judge and offered no comment to Mr. Allan Turner, a reporter for The Houston Chronicle. Mr. Jackson had an ethical duty as a prosecutor to seek justice -- that is, a legal duty, not to sentence someone to die for a crime he did not commit. Employing junk science to obtain a conviction is a breach of the Texas Disciplinary Rules of Professional Conduct.

The Texas Forensic Science Committee decided not to hire an investigator to look into the Willingham case at this time but they did ask the State Fire Marshal's Office to prepare a response to The Innocence Project's allegations.

I have little doubt that Mr. Willingham was not the first innocent citizen executed by the Texas death machine -- and he may not be the last. It is time to put an end to state-sanctioned murder because one you've put that needle in the vein, it's too late to say "Oops!"

Friday, August 15, 2008

Just say no to the intoxi-liar

In Texas, the implied consent laws found in the Transportation Code, state that if a driver is asked to provide a breath or blood specimen, provided the officer has probable cause to arrest him for DWI, his refusal to do so may be used against him in a criminal proceeding and he may be subject to a license suspension of 60-180 days. Nowhere in the Code, or in the statutory warning given by the officer, does it state that a driver MUST provide a specimen.

To listen to Harris County prosecutors you would think that by exercising a right not to blow, a citizen is automatically guilty of driving while intoxicated. The drivel that comes out of their mouths usually amounts to telling the jury that the defendant had the opportunity to prove his innocence but that, by refusing, he is admitting he is intoxicated.

Nothing could be further from the truth.

A citizen accused is under no obligation to prove anything at all. He is presumed innocent unless the state can prove beyond a reasonable doubt that he is guilty of a criminal offense. The burden is on the state to produce the evidence to support its claim. That argument is an improper comment on the defendant's exercise of his right to remain silent based on the instruction the judge will give to the jury to stop any discussion of why the defendant did not take the stand. The only reason the prosecutor can get away with his assertion is because the Legislature and the Judiciary don't have the guts to stand up for the rights of the citizenry of Texas.

Furthermore, if the citizen accused has arrived at the point where he is asked to blow into the state's little black box, it means that the only thing his prior cooperation with the officer netted him is an arrest.

Finally, never forget that a jury is free to accept in whole or in part, or reject in whole or in part, any evidence or testimony presented to them.

The advice, as always, is DON'T, under any circumstances, blow into the little black box -- don't make the prosecutor's job any easier.

Thursday, August 14, 2008

A response to Kelly Siegler

So Kelly Siegler, late of the Harris County District Attorney's Office (after a failed run for the office in the Republican primary) thinks prosecutors aren't trying to convict innocent citizens as much as they are just plain lazy.

"Too many prosecutors demand that the cases presented to them for the filing of charges come to them with all the questions answered and wrapped in a pretty, little bow...Maybe it's laziness that's the problem."

The problem isn't laziness -- God knows there are lazy prosecutors, lazy defense attorneys, lazy judges and lazy court staff. The problem is a basic disagreement of what the law says prosecutors must hand over to the defense in a criminal prosecution.

In Brady v. Maryland, the United States Supreme Court held that a prosecutor is under a continuing duty to disclose all material that is exculpatory, or might be exculpatory, to the defendant. That could be anything from forensic evidence that points away from the defendant, to conflicting eyewitness statements, to the criminal backgrounds of witnesses, to inconsistent statements from an alleged victim, to whether or not the complaining witness is cooperating.

"I betcha if you could interview a group of experienced detectives and ask them what their number one pet peeve about their job was, the answer you would get would be having to present their cases to prosecutors who have no guts."

It's not laziness that keeps the prosecutor from handing over this type of evidence, it is, instead, a culture in a district attorney's office that winning is the only thing that matters -- and that leads to the attitude that if the material isn't disclosed, no one will ever know about it.

That's not laziness, that's contempt of the Constitution and the rights afforded to the citizens of this state and this country. That's the reason that The Innocence Project is still fighting to free those who were wrongly convicted. That's the reason people such as Clarence Brandley and Josiah Sutton sat in prison for years for crimes they didn't commit.

Wednesday, August 13, 2008

The new capital punishment

On August 1, 2008, Arturo Chavez, a 17-year old illegal immigrant and student at Clear Creek High School, was stopped by League City (TX) Police and arrested for driving without a valid Texas driver's license. He was taken to the League City police station where, according to the cops, he ran out a door and tried to climb a fence. Arturo, who stood 5'3" and weighed about 125 pounds, was beaten by four League City cops and tasered multiple times.

EMTs took Arturo to the hospital for treatment of his injuries and then returned him to League City officers for processing into the Galveston County Jail. No officers reported any injuries. At the GCJ, Arturo was placed in solitary confinement. Despite being warned that Arturo was suicidal, GCJ officials left him alone in his cell.

Three days later Arturo was dead. He had hung himself with a blanket.

It wasn't the first time that an inmate in the GCJ ended up dead. On February 6, 2008, a 24-year old Galveston man who had been picked up on municipal warrants died in custody after suffering multiple seizures.

Capital punishment is authorized in Texas for capital murder and aggravated sexual assault of a child under the age of 14, not for driving without a license or not paying municipal traffic tickets.

Galveston County isn't the first county to kill off its inmates due to incompetence, negligence and neglect, and it won't be the last. The Harris County Jail has been investigated for over 100 inmate deaths since January 1, 2001.

While going to jail isn't a pleasant experience -- it shouldn't be a deadly experience. As no one in Austin or Washington, D.C. wants to be labled as being a defender of those in custody, the only means we have at our disposal to bring these stories to an end is to obtain judgments against those ultimately responsible for these senseless deaths.

Tuesday, August 12, 2008

CRU and the assault on the Constitution

HPD's Crime Reduction Unit (CRU) is making the city safe from the likes of hardened criminals like jaywalkers and bicyclists. It's the cops' version of the lottery -- harass, cuff and search minorities and hope you find a stash of drugs in their pockets, socks or shoes.

Officers in this $5 million unit are targeting those committing Class C violations and using that as their ticket to violate their 4th Amendment rights against unreasonable search and seizure. The cops figure someone in that neighborhood is up to no good and so they create a pretext for a warrant check and a search - for without probable cause, the case won't stick.

CRU operates much the same as the DWI Task Force -- watch someone long enough and they're bound to give you a reason to stop them. Most of the DWI arrests I've dealt with weren't the result of bad driving -- they were the result of someone getting stopped for failing to signal a lane change, squealing their tires leaving an intersection and speeding. The cops know that going out on DWI duty on a weekend night near an entertainment district is like shooting fish in a barrel -- but they have to create a reason for the stop.

Combine this with courts' narrowing definition of a seizure and it adds up to an erosion of our rights as citizens. Sure, no one wants drunks driving on the streets and no one is in favor of a drug dealer setting up station across the street from them, but when we allow the State to strip the rights of those accused of unpopular crimes, we make it easier for the State to strip our own rights.

For an example look no further than the hysteria following 9/11. In the name of fighting terrorism the American people meekly stepped aside and allowed the federales to tap our phones and our e-mail, to engage in domestic espionage and the limit our freedom to travel. Our government calls al-Qaeda a bunch of savages, yet we say nothing as our government authorizes the torture and humiliation of prisoners -- including our own citizens.

It's spring in the valley

While I spend most of my time downtown at the Criminal (In)justice Center, I still handle the occasional traffic ticket in Harris County. One of the more bizarre places I practice is the bedroom community of Spring Valley. For those of you who don't know, Spring Valley is one of several (white) enclaves in the Spring Branch area surrounded the City of Houston.

Spring Valley is located north of the Katy Freeway between Bingle and Blalock. For those of you who aren't familiar with Spring Branch, I-10 serves as something of a dividing line (the old railroad tracks) between the wealthier, whiter areas (south) and the poorer, browner areas (north).

Everytime I walk into the Spring Valley Municipal Court I'm tempted to ask the assembled citizens how many of them live in Spring Valley -- because, by and large, the huddled masses are overwhelmingly Hispanic. These are the folks who provide services for the citizens of Spring Valley -- lawn care, day care, food -- who have to drive up Bingle or across Westview without the "SV" sticker on the back of their cars.

The Spring Valley police prey on these ordinary folk because the cops know these folks are more likely to be driving without a driver's license or insurance and provide another income source for the city.

Here's a true story -- a couple of years ago some friends of ours (who had just moved to Texas) were driving home after dark. One of Spring Valley's finest saw the Utah license plate (and no "SV" sticker) and followed them home. The officer parked behind them in their driveway and began questioning the husband about the Utah plates. My friend told the officer he had the Texas plates in the house and would put them on the next morning -- the officer made him do it right then and there. He then issued a warning and told my friend to get an "SV" sticker and put it on his car.

Monday, August 11, 2008

Implied consent or forced incrimination

"No person...shall be compelled in any criminal case to be a witness against himself..."

By protecting the citizen accused from self-incrimination, the State is put to its required burden of proof - proof beyond a reasonable doubt. In essence, the 5th Amendment is telling the State they cannot rely on forcing a confession out of the citizen accused to meet their burden but that they must, instead, build a case and assemble evidence independent of the citizen's own words.

But you may not have realized that by applying for a Texas driver's license you are, in the eyes of the State, waiving your right against self-incrimination should you be stopped on suspicion of DWI!

The Texas Legislature came up with the notion of implied consent and created a legal fiction that when you applied for your license you knowingly, intentionally and willingly consented to provide a breath or blood specimen upon request. As an additional weapon to subvert your 5th Amendment rights, the State declared that, should you refuse to provide the requested specimen, that we will suspend your driving privileges for at least six (6) months. The State can also tell a jury that they may infer that you had something to hide if you refused to blow into the State's breath machine.

The courts have been all too willing to play along with this charade, fearful of the lobbying power of MADD and victims rights organizations. Now no one is going to stand up and say they support drunk driving - but, once you start to take away the rights of one undesirable group, it makes it easier to take them away from the next group we don't like.

During the 1930's the Nazis played the same game -- they went after the groups the public had no sympathy for... and when no one opposed their repressive measures against those groups, they expanded their program. And, at the end of the day, there was no one left to fight to defend anyone's rights.

I'll leave ya'll with this to chew on: The State cannot compel an accused murderer to provide the evidence that will be used against him, but they can compel a citizen accused of DWI (a misdemeanor) to provide all the evidence the State needs to convict.

Friday, August 8, 2008

Another day at the Criminal (In)justice Center

REPEAT AFTER ME... don't blow in the Intoxi-liar.

Had a client with a good video who blew a .10. The jury thought the arresting officer was a jerk. They knew he had been fired from HPD for something really bad since the prosecutor rose to object everytime I got near the subject. The jurors didn't think my client should've been arrested at the scene. We obtained all sorts of concessions from the technical supervisor - he admitted he couldn't say whether the test was higher, lower or the same as the BAC at the time of driving, he admitted he couldn't testify that the test result was accurate, only that it was valid, he said that with the drinking facts admitted by my client it would be impossible for his BAC to be over .08.

But, at the end of the day, the jury found my client guilty because they couldn't get past the breath test.

If the cops offer you a breath test, refuse it. Let the prosecutor say that a refusal is evidence of guilt. Deal with the hassle of fighting the license suspension. Just don't give the cops any more evidence than you have to.

KEEP YOUR MOUTH SHUT. Had a client who was given probation on a DWI. By mistake, the court's conditions of probation indicated he had to have an Interlock device installed on his car. I spoke to the court's probation officer and we had the court's docket sheet pulled. Sure enough -- nothing about an Interlock device was listed on the terms of probation.

The court's probation officer calls my client's probation officer to let him know my client needed to come to the courtroom on Monday to sign the amended conditions of probation -- but, for some reason I guess I'll never know, my client told his probation officer he had consumed alcohol while on probation. Oops.

The judge decided against jail time -- but decided to order an Interlock device installed on my client's car.

I CAN'T MAKE THIS STUFF UP. Check out this article and see what else has been lost in the Houston Police Department property room.

Thursday, August 7, 2008

This kind of thing doesn't happen in small towns

Things like this aren't supposed to happen in small towns like Santa Fe, Texas. Small town cops know better than to allow video such as this to be made public.

The police department did their best to make certain no one ever saw what happened -- it took over a year-and-a-half before the video was produced.

The Galveston County DA's office then did their best imitation of seeking justice -- they reduced the charge on the beaten citizen from a felony to misdemeanor resisting arrest.

Mr. Sergio Robles has filed suit in U.S. Federal Court alleging the officers involved violated his civil rights while beating him up.

Justice delayed...

According to the Houston Chronicle, the Harris County DA's office has dismissed criminal charges filed against Jose Jesus Vieyra who was charged with criminally negligent homicide as a result of an accident on February 21, 2008 in which Sheriff's Deputy Craig Miller was killed.

As it turns out, Deputy Miller had a blood alcohol content of at least .027 at the time of the accident. Interestingly enough, the original story was that Mr. Vieyra drove his truck across Miller's path as Miller headed to a surveillance assignment.

Who knew about Miller's condition at the time of the accident? Who authorized the story that he was on his way to a surveillance assignment? Who are the people responsible for the false charges made against Mr. Vieyra?

Although justice has now (finally) been served, Mr. Vieyra still had almost two months of his life taken away as he sat in the HCJ trying to post bond and he had to post that bond. Who is going to compensate him for this injustice?

Tuesday, August 5, 2008

Consular rights and the Medellin case

Mexican national, Jose Medellin, awaits execution in Texas while the U.S. Supreme Court decides the merits of his latest request for a stay of execution.

Mr. Medellin was convicted in the gang-rape and murder of two Texas teenagers in 1993. A total of six gang members were convicted in the double-rape and murder. One member was executed in 1996, two sit on death row (including Mr. Medellin), two had death sentences commuted to life in prison and one is serving 40 years.

In 2004, the World Court ordered a hearing to determine whether Texas' refusal to allow Mr. Medellin to visit with consular officials was a violation of the Vienna Convention on Consular Relations (1963).

Article 36(1)(c) of the Vienna Convention reads:

consular officers shall have the right to visit a national of the sending State who is in prison,custody or detention, to converse and correspond with him and to arrange for his legal representation.They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

On July 16, 2008, the World Court, based on its 2004 finding that Mr. Medellin's consular rights were violated, called on the United States to stay the execution but Texas decided to proceed.

As the execution machine in Texas continues its bloodlust, very little thought is given to the protections the Vienna Convention provides to American citizens overseas. We are used to our adversarial system in which, ultimately, a jury of our peers will determine our fate. The U.S. is one of the few countries in the world that provides trial by jury.In most countries, a panel of judges decides, based on documents filed by the prosecution, what a defendant's fate will be.

The protections provided under the Vienna Convention assure that anyone accused of a crime outside their home country will have the opportunity to discuss the basics of that nation's criminal procedure with a consular official.Should the U.S. and Texas continue to thumb their noses at the World Court, those protections will not be available for any American unfortunate enough to find themselves caught up in another nation's justice system.

PR Bonds

Rumors are swirling about that inmates in the Harris County Jail will soon be receiving 3-for-1 credit on their time served.

Harris County continues to send inmates whose sentences were reduced under 12.44(a) to Louisiana because the downtown complex is overcrowded.

Everyday a line of defendants wearing HCJ jumpsuits enter pleas en masse.

The common link? Too many citizens are being jailed for simple drug possession offenses. The solution may be as simple as allowing law enforcement officers to issue citations for Class B drug possession cases -- the citation would tell the defendant where and when to appear (much like a traffic citation). Should the defendant fail to appear, a warrant would be issued for their arrest.

In addition, the issuance of PR bonds would enable citizens accused to fight their cases. We all know that it's easier to wage war against the Harris County DA's office when you're on the outside rather than locked up.

Fat chance it'll happen, though, as the HCDA is opposed to any reform that would make them work harder for a conviction.