Friday, October 31, 2008

Imperfect information

A couple of weeks ago my colleague, Mark Bennett, posted an article on his blog, Defending People, about David Sklansky's theory of poker.  The theory is, boiled down to its essence, that, in poker, you win anytime you make an opponent play a hand differently than they would have played it if they knew what you were holding.  And, on the other hand, you lose anytime you play a hand differently than you would have played it had you known what your opponent was holding.

This same concept in an economic context is known as the problem of imperfect information.  In a market analysis, information is a commodity and is available for exchange.  However, as the guiding principle of market economics is scarcity, the acquisition of information is subject to competition.  And, as a result of this competition for information, no one has perfect information.

The lack of perfect information is why some investors can "beat" the market while others lose -- if we all had perfect information our return would be the same as that of the market.  The random walk theory holds that our collective imperfect information guides the market and that, in the long run, we are better off spreading our risk across the entire market rather than trying to beat it here and there.

And this brings us back to the courtroom.  None of us has perfect information.  We weren't witnesses to whatever happened.  Police officers have to decide whom to believe when putting together an offense report. Clients lie to the police.  Clients lie to us.  Witnesses don't remember key facts.  Jury selection is limited to 20-30 minutes.  Judges won't allow questionnaires.

And so, in the courtroom, just as at the poker table, you must make decisions based upon what you think the other side is holding based on your reads and the prosecutor's actions.  And, just as in poker, the object is to make correct decisions -- you can't always control the outcome.

Wednesday, October 29, 2008

More fallout from the intoxilyzer mess

Last Thursday the Galveston County ADA handling my client's DWI case called me and proposed reducing the charge from DWI to obstruction of a highway.  There was no video of my client performing field sobriety tests but there was a .18 breath test.  My client was happy with the offer.

Our case was set for a pretrial conference the following day but my client was unable to appear as she had evacuated from the island prior to Hurricane Ike and had stayed in seven different places in the six weeks that followed.  The case was reset for trial in January with the understanding that we would make arrangements to enter a plea before then.

But then came the startling revelations that Dee Wallace had faked intoxilyzer maintenance records for the machines at eight area police stations for at least the past year.  Due to Ms. Wallace's criminal malfeasance, questions have now arisen on more than 2600 DWI cases.

Once Ms. Wallace was identified publicly as the technical supervisor in question, I placed a call to the Galveston County DA's office.  That call was returned this morning and, after a brief discussion, my client's case was dismissed.

This outcome was achieved because we challenged the state's proof and the reliability of their breath test machine.  It was achieved because we weren't afraid of a .18 breath test score.  It was achieved because we were willing to fight and to do whatever it took to obtain a positive outcome.

If you've been arrested for DWI (particularly in Galveston County), contact my office today.

Tuesday, October 28, 2008

Update on faked intoxilyzer records

Deetrice (Dee) Henderson Wallace, a contracted technical supervisor for the Texas Department of Public Safety (and the subject of this posting) has been formally charged with tampering with a government record, a state jail felony punishable by 6 to 24 months in state jail as a result of her faking intoxilyzer maintenance records.

Ms. Wallace was arrested on Sunday, October 27 and released upon posting a bond.  She is scheduled to appear in the 182nd Judicial District Court at the Harris County (In)justice Center on Wednesday, October 29, 2008.

Monday, October 27, 2008

Court grants stay of execution in Davis case

On Friday, the 11th U.S. Circuit Court of Appeals granted Troy Anthony Davis a stay of execution and set the stage for another appeal to be filed in a lower federal court. Interestingly enough, former FBI Director, William Sessions blogged that Mr. Davis should receive a new trial based on ineffective assistance of counsel. In his piece, Mr. Sessions lays out a very clear argument that Mr. Davis may not have been the gunman.

Mark Bennett, a criminal defense lawyer in Houston, and author of the blog Defending People issued this challenge to the government:
I look forward to the government’s explanation of why it should be allowed to execute someone who is clearly innocent because his lawyers should have found the evidence of his innocence in the first place.

Mark, I, too, await that answer.

Friday, October 24, 2008

State's expert faked intoxilyzer maintenance records

An internal Department of Public Safety investigation has revealed that an unnamed Technical Supervisor faked inspection records of the Intoxi-liar. This criminal act has placed more than 2,600 DWI arrests in the Houston-area in question - and has raised serious doubts about the reliability of the state's alcohol breath testing program.

The person in question is a DPS-contractor and not an employee. The breath machines in question are located at:
  • Clute Police Department
  • Friendswood Police Department
  • Galveston Police Department
  • League City Police Department
  • Pearland Police Department
  • Seabrook Police Department
  • South Houston Police Department
  • Webster Police Department
Here is a (partial) listing of DPS-contracted technical supervisors in the Houston area :
  • Becky Cuculic (Chemco Analysis)
  • Vicky Amszi (Lone Star College)
  • Amanda Culbertson (H.P.D. Crime Lab)
  • Jano Chiu (H.P.D. Crime Lab)
  • Dee Wallace (Galveston County)
Of the aforementioned Technical Supervisors, only one, Dee Wallace, maintains the machines located at the police departments cited above.

(I once sent a request to Ms. Wallace for intoxilyzer maintenance and test records and received an invoice for $145 for the 140 records I requested. The most curious thing about the invoice was that I was asked to make the check payable to Boy Scout Troop 1221.)

For years attorneys have advised citizens to REFUSE any request to blow into the state's breath test machine due to inherent problems in the methodology of breath testing. Now here is another reason not to provide a breath specimen.

If you've been arrested for DWI, contact my office. I will fight to restore your name and reputation.
Check out these additional accounts:

True lies

Oh what tangled webs we weave... Ashley Todd's story of being attacked and mutilated by an Obama supporter is just the latest that fall under the category of "some black guy..."

At lunch a friend of mine and I discussed her story briefly and he (a rabid republican) found it hard to believe that she might have been making it up.

Now it looks as if Ms. Todd, after confessing that she made up the story, will face charges of filing a false police report.

Ms. Todd is a student at Texas A & M.

Check these other accounts out:

Wednesday, October 22, 2008

Deterrence and DWI

Doug Berman, the author of the Sentencing Law and Policy blog, has chimed in with his opinion regarding the "leniency" courts have (supposedly) shown convicted drunk drivers. His argument is that repeat offenders should be treated more harshly in an attempt to get them to see the error of their ways.  

Mr. Berman's thesis is based upon the faulty notion that we are all rational beings and subject each and every decision to a cost-benefit analysis.  This is the basis of the concept of deterrence.

Senior Criminal District Judge Larry Gist, of Beaumont, Texas, has a slightly different view of our fellow citizens.  In an October 2007 article in Voice for the Defense (the Texas Criminal Defense Lawyer's Association magazine) he suggests we all fall into one of three categories: NORPS, SLICKS or SLUGS.

NORPS are Normal Ordinary Responsible People (presumably like us) who are generally responsible and are capable of self-correction.  Rehabilitation and deterrence work for NORPS because NORPS are rational (most of the time).  For instance, when a NORP is arrested for DWI his or her eyes are opened wide to the cost (in time, reputation and money) involved in handling a DWI arrest.  Going through the process is enough to convince them not to get behind the wheel impaired in the future.

SLICKS are the folks who think they are smarter than everyone else -- we all know someone who falls into this category.  SLICKS are (generally) incapable or rehabilitating themselves due to their anger and hatred of society.  These are the folks who deserve to be hanging out in the "Grey Bar Hilton."  SLICKS are incapable of rational thought and deterrence doesn't work for them.

SLUGS get into trouble because they commit stupid, impulsive and poorly-planned crimes. SLUGS seek out attention.  SLUGS never accept responsibility for their actions and don't really care if they are incarcerated (three full meals a day and a bed to sleep in) or rescued by a "do-gooder" who take over his problems.  SLUGS don't respond to deterrents.

Mr. Berman's idea seems to be to raise the cost of committing a DWI to such a level that the cost far outweighs the pleasure/benefit derived from driving drunk.  The problem is that most folks who pick up multiple DWI's aren't NORPS and don't think rationally when making decisions. Therefore, upping the penalties won't cause them to curb their behavior.

Tuesday, October 21, 2008

Feedback on the Troy Anthony Davis case

Since I wrote on the US Supreme Court's decision not to hear Mr. Davis' appeal in his murder case I have read some very interesting posts regarding the case.  The first comes from Atlanta, GA attorney Jonathan Ginsberg.  The second comes from Deirdre O'Conner of Innocence Matters, who maintains a website about the Davis case.

Both postings are well-reasoned and bring into sharp contrast the forces that converge when debating the death penalty.

Monday, October 20, 2008

Austin to implement a cite and release policy

Some time ago I wrote about why the police should issue citations with a promise to appear (cite and release) for some minor offenses.  According to this article from the Austin American-Statesman, the Austin Police Department will begin implementing just such a plan.  Under the proposal, officers would cite and release citizens accused of driving on a suspended license, possession of less than 4 ounces of marijuana; and criminal mischief, graffiti and theft charges when the damage is less than $500.  

I would let you know how the candidates for Harris County District Attorney stand on the issue, but neither has elected to provide answers to my questions.

See also:

Friday, October 17, 2008

Harmless error?

Apparently a visiting judge in a Galveston County misdemeanor court is a little bit confused about the rights the 5th and 6th Amendments are designed to protect.  In Galveston County, on the appearance docket, a citizen accused is given three options: (1) speak to the prosecutor about his case, (2) request time to hire an attorney or (3) request that the court appoint him an attorney.

On a recent appearance docket, the visiting judge (allegedly) told those citizens asking for an appointed attorney that they would have to sign a waiver of their right to remain silent and discuss their cases with the prosecutor before he would allow them to complete an affidavit of indigency!

As there was no court reporter present no record was made of the violations of those citizens' 5th Amendment right not to incriminate themselves and their 6th Amendment right to counsel.  Would it surprise anyone if the Court of Affirms deemed it "harmless error?"

Update on Judge Edward Nottingham

It looks like U.S. District Judge Edward Nottingham's days on the bench are coming to an end. The latest relevations come from a prostitute filed an ethics complaint against the judge alleging he asked her to lie about paying her for sex.

Thursday, October 16, 2008

Some quick hits for a Thursday afternoon

Houston's own Katherine Scardino posted this entry on Women in Crime Ink regarding a confession actually being tossed out by a Federal Appellate Court.

Dallas County is hoping that humiliation will persuade people to pay overdue fines and fees from Class C misdemeanor cases.  Here's Grits' take...

Congratulations to Danalynn Recer of the Gulf Region Advocacy Center (GRACE) who was named by the Houston Press as the Best Criminal Defense Attorney in their annual Best of Houston issue.

In an earlier posting I told you why you shouldn't tell an officer how much you've had to drink, now, courtesy of New Hampshire DWI attorney Mark Stevens, here's something to think about if you've been taking prescription medications.

Finally, in you're confined to a wheelchair in Georgia you might think twice about that drink.

Wednesday, October 15, 2008

It's not cruel or unusual to execute an innocent man

Yesterday the U.S. Supreme Court decided that it is okay for a state to execute a citizen who has a strong claim of innocence.  

Troy Anthony Davis of Georgia was sentenced to death for the 1999 murder of a Savannah, GA police officer.  In the meantime, all but two of the prosecution's witnesses who linked Mr. Davis to the murder have recanted their testimony claiming that they were coerced by the police.  Five newly discovered witnesses have identified an individual other than Mr. Davis as the murderer.

Mr. Davis' attorneys sought a ruling that, under the Eighth Amendment, it is cruel and unusual to execute a man who has a strong claim of innocence.

The Court denied review without comment.  The Court's denial lifts the stay of execution and frees Georgia to murder Mr. Davis.

Once again the Court has sacrificed substance for form.  Must I point out again that just because a citizen was given a fair trial doesn't mean that the verdict is correct?  When it comes to deciding whether or not a fellow citizen's life is to be taken away by the state, the very least we can do is make certain that the state is killing the right person.

See also:

Monday, October 13, 2008

Judge not lest you be judged

U.S. District Judge Samuel Kent is not the only federal jurist in hot water for misbehavior. While Judge Kent's alleged misconduct has resulted in an indictment for federal sex crimes, his colleagues' misconduct has yet to result in any criminal investigations.

Thomas Porteous, a U.S. District Judge in New Orleans, is facing a possible impeachment over allegations he perjured himself regarding a bankruptcy filing and accepted gifts and money. He has been suspended from the bench. Judge Porteous filed for bankruptcy under a false name and attempted to hide evidence of his gambling losses. Porteous escaped criminal sanction as a result of the immunity he was granted as part of the disciplinary process.

Edward Nottingham, a U.S. District Judge from Denver, is being investigated due to his hobbies of going to topless clubs and frequenting escort services. Judge Nottingham has defended himself by blaming his problems on his own weaknesses. Funny, but that never seems to matter to the prosecutors at the Harris County (In)justice Center.

Manuel Real, a U.S. District Judge from Los Angeles, is in hot water as a result of his failing to provide reasons for his legal decisions -- admittedly a very important part of what a judge is supposed to do.

Finally, Alex Kozinski, a Federal Appellate Judge for the 9th Circuit, decided that putting sexually explicit material on his personal website was a good idea. I guess he never saw the commercial warning teenage girls not to post photos on the internet they wouldn't want their parents to see. Judge Kozinski requested that the investigation be conducted by another circuit.

All five judges are still being paid -- and will continue to be paid, as per the U.S. Constitution, until such time as they resign or are removed from office. Nice work if you can get it.

Friday, October 10, 2008

A couple of quick hits

So, Justice Scalia thinks the time for the exclusionary rule has passed because the police are more professional now than they were "in the day?" Isn't that a better argument for the continuation, not elimination, of the rule?

Today I gave a presentation on voir dire to the Houston Municipal Justice Bar Association. It was the first time I've made a presentation to my peers. After I got over my initial nervousness, my talk went well. I figure if I can be comfortable talking to a room full of lawyers that talking to a jury panel will be that much easier.

Thursday, October 9, 2008

Another knee-jerk reaction

According to the Houston Chronicle, the Texas Department of Public Safety has decided that, as of October 1, 2008, an applicant for a Texas driver's license must show they are in the United States legally before they can obtain or renew their license.  Gov. Rick Perry applauded the new directive:

"Texas is a great place to live and work, and while we welcome legally documented individuals to the Lone Star State, we must ensure that this privilege is not abused by those seeking to enter our country illegally."

However, Jim Harrington of the Texas Civil Rights Project, pointed out the obvious flaw:

"People have to drive to get to work.  You want people to get (auto) insurance.  They can't get insurance if they don't have a driver's license."

Requiring proof of citizenship is not going to discourage people entering the United States illegally, it will just increase the number of drivers on Texas highways without driver's licenses and insurance.

Wednesday, October 8, 2008

What we can learn from twelve mighty orphans

I just got finished reading Twelve Mighty Orphans by Jim Dent which was a birthday present from my brother-in-law and his wife. The book focuses on the coach, Rusty Russell, and the boys who made up the football team for the Masonic Home in Fort Worth in the 1930's and 40's.

The Masonic Home was an orphanage for children whose father's had been in the Masonic Lodge. A number of students were sent to the home after their fathers died -- and their mothers couldn't afford to raise them.

Russell had been a coach at Temple High School, a football power, until he decided to give it all up to create a football program at the Masonic Home. He never had more than twelve players, suited in hand-me-down uniforms, for the varsity team at any time. He drove the team to their away games in an old flatbed truck that was always on the verge of giving out.

But Russell and his band of orphans soon ruled Texas high school football. Despite being outweighed and outmanned every week they won a state co-championship in 1932 and advanced deep into the playoffs several other times in the 1930's.

The book climaxes with the Masonic Home playing powerhouse Amarillo in the state semifinals in 1940. Unlike fairy tales, the Mighty Mites quest for a state title died just a couple of feet short of the goal line.

The Mighty Mites were the darlings of Texans during the years of the Great Depression. They defied the odds for almost a decade and were everyone's favorite underdogs.

Why am I writing about this book? Because I think it goes to the heart of what we, as criminal defense lawyers, do. We are the underdog. We have to scrape and claw everyday in that courtroom and we have to fight for every inch at trial.

Coach Russell was successful because he believed in his players and refused to accept anything but their best effort. We must believe in our clients' causes -- those precious constitutional rights that our opponents label as "technicalities." We must never be satisfied with anything less than our best effort.

Tuesday, October 7, 2008

An open request to the candidates for Harris County District Attorney

Dear Mr. Bradford and Ms. Lykos,
My name is Paul B. Kennedy.  I am a criminal defense attorney in Houston, Texas and I publish the blog "The Defense Rests" (
I am offering both of your campaigns the opportunity to answer a series of questions that will run (unedited and unabridged) in my blog prior to the election.  Your responses will run without any editorial comment, as my sole intention is to allow you to speak directly to the voters. 
Here are the questions:
1. What is your position on releasing minor offenders on personal bonds with a promise to appear in court on a specific date?
2. As District Attorney, how would you propose we handle minor drug possession cases?  Specifically, how would your administration handle the issues of overcrowding in the Harris County Jail and the recidivism rate of drug offenders?
3. What would your administration do to ensure that Brady material is disclosed to defense counsel in a timely manner?
4. What is your position on the creation of a public defender's office in Harris County?  What changes, if any, would you like to see made to the existing appointment system?
5. Why should you get my vote (in 100 words or less)?

I look forward to hearing from both of your campaigns and, should you have any questions, please don't hesitate to contact me at the number listed below.
Paul B. Kennedy,
Attorney at Law
800 Bering, Suite 208
Houston, Texas 77057
Tel (832) 606-9432
Fax (866) 587-2584

Monday, October 6, 2008

Coaching and communicating

I can't help but think that coaching a U6 (under 6-year old) soccer team has to have some benefit when it comes to communicating with a jury.  In both cases we are taking people out of their normal routine and dropping them off in unfamiliar territory.

In the case of the kids, they may have seen older siblings playing soccer and know that it involves kicking a ball, but they don't know the skills involved or the importance of playing together as a team.  As far as jurors go, most of what they think they know about trials comes from movies and television - which may or may not bear any resemblance to what we see at the courthouse on a daily basis.

Now, just like the kids, adults in for jury duty have to learn how to work together as a panel. They have to learn the dynamics of the panel and of the room in general.  They have to learn the rules of conduct.  They have to adjust to a (completely) different mode of thinking.

Kids have to learn how to kick the ball properly.  They have to learn how to dribble, how to pass, how to stop the ball and how to shoot.  They have to learn that success is achieved when all of the pieces work together and for a common goal.  Most importantly, they have to learn to trust their coach.

And how does a coach earn the trust of his young charges?  By talking with them, not at them. By using words the kids can understand.  By being understanding.  By observing how different kids learn in different ways.  By knowing which kids need words of encouragement, a high five or a hug.  By being patient and realizing that kids move at different speeds.  By communicating with the kids' parents.  By understanding that the game should be fun and that the kids should look forward to practice and games.  By recognizing the dynamics of the group and the relationships among the players.

At trial our mission must be to earn the trust of the jury panel.  If the jury panel doesn't trust you, it won't matter how logical and reasonable your argument is -- they won't accept it.  If, on the other hand, the panel trusts the attorney, they may be willing to bend over backwards to help him out.  They may be more willing to give your client the benefit of the doubt.

While there's not a direct relation between coaching youth soccer and communicating with a jury, it is a good analogy and a different way of thinking about how best to serve our clients.

Saturday, October 4, 2008

Non sequitur

I have no idea what the message means or why it was on the sidewalk but I saw it on my way to the Harris County Jail on Friday and was intrigued.

Thursday, October 2, 2008

The truth about the statutory warning

If you've been arrested for DWI a cop read you a statutory warning informing you of your rights under Texas' implied consent law.  The document you were handed was the DIC-24.  The form indicates whether the officer asked for a breath or blood sample and whether you provided the sample or refused.  The form also notes if you refused to sign after declining to provide a sample.

The DIC-24 begins by informing you that you are under arrest for driving while intoxicated.  So much for that lie that the officer will release you if you blow under a .08.  In reality, should your alcohol concentration be below the legal limit either (1) the cops will call in a drug recognition "expert" to determine if you are under the influence of any prescription drug, non-prescription drug or illegal drug; or (2) the state will argue that you were over the limit at the time of driving through a process called retrograde extrapolation.

A common theme in breath test refusal cases is that the mere refusal of the citizen accused to provide a breath sample is evidence of his guilt.  Not according to the DIC-24.  Per the statutory warning, a refusal may be admissible at trial.  The citizen accused's refusal is just one more piece of evidence at trial -- and I argue that it's evidence my client wasn't intoxicated since it showed that he or she was aware that their cooperation with the police only got them deeper in the mire.

In short, if you're being offered a breath test you are already under arrest and by blowing in the state's breath machine you are handing the state evidence to use against you.

If you've been arrested for DWI, contact my office now with any questions you may have.