Tuesday, March 31, 2009

Probable cause? Who needs probable cause?

Yesterday the State of Texas came one step closer to ending a 15-year old ban on DWI checkpoints with the passage of S.B. 298 which would add Chapter 65 to the Texas Code of Criminal Procedure creating DWI checkpoints in the 15 most populous counties in the state.

The bill would allow law enforcement agencies to set up temporary DWI checkpoints in counties with a population over 250,000 or in municipalities with populations of more than 500,000. The checkpoints could not be set up on limited-access highways, overpasses, bridges or causeways, or single entry or exit points from a designated area.

According to the sponsor, Sen. John Carona (R-Dallas): "The goal is not to apprehend people. The goal is to deter people."

And I'm certain that anyone stopped at one of these checkpoints who the police deem to be intoxicated will be allowed to leave with unimpaired driver or will be allowed to remain at the checkpoint until they sober up.

Of course the goal is to apprehend more citizens the police think are driving while intoxicated. I wrote before about the amount of money at stake in the DWI sweepstakes. But, in order to pass constitutional muster, the sponsors of the legislation cannot give the true purpose of the bill -- the bill only passes the sniff test if there is a public safety purpose behind the checkpoints.

Now, based on the restrictions placed in the version of the bill that passed the State Senate, the proposed checkpoints could not be set up in places such as South Padre Island, Mustang Island, Galveston, College Station, Lubbock, Waco and San Marcos. The checkpoints could be set up in Houston, Dallas, Fort Worth and San Antonio. 

The purpose is to deter conduct, yet no checkpoints can be set up in areas that make their money on Spring Breakers and vacationers or in areas in which a university is the largest institution. Talk about things that make you say "hmmmm."

Let's not kid ourselves, the real purpose of the proposed DWI checkpoints is to increase the number of DWI arrests in and around the state's major cities, to increase the amount of federal grant money local law enforcement agencies receive for DWI enforcement and to line the coffers of the DPS with more surcharge money.

With the creation of these DWI checkpoints, the police will no longer have to worry about pesky little things such as reasonable suspicion or probable cause - and don't be surprised when law enforcement begins parking trailers for blood tests at those sites. 

Monday, March 30, 2009

A prosecutor responds

In light of the Batson incident in Harris County that I blogged about last week, I decided to give the prosecutors in question a chance to respond to the allegations.

I sent one request to Mr. Rifi Newaz directly and another to the other prosecutor through a third party. I let both prosecutors know that I would run their responses unedited. I received a response from Mr. Newaz but I have yet to receive a response from the other prosecutor.

Mr. Newaz writes:

"We didn't strike anybody based on race."

Yet another bad idea

There's a rumor circulating around that the Harris County District Attorney's Office will require a sworn statement from defendants on plea papers as to whether they are in this country legally or not.

As I sit here thumbing through my copy of the Texas Penal Code I see criminal activity listed under the headings Offenses against the person, Offenses against the family, Offenses against property, Offenses against public administration, Offenses against public order and decency and Offenses against public health, safety and morals. Nowhere under any of these headings do I see where it's a crime in the state of Texas for a non-citizen to be here without the blessings of Congress or the Department of Homeland Security.

If someone crosses the border without permission they are breaking federal law - but they are not violating the laws of the state of Texas.

Having such language included on plea papers could expose a defendant to criminal liabilty for perjury (if he swears he is here legally when he's not) or for violating federal law (if he admits he is not here legally). The other option is for the criminal justice system to break down at the point judges will not accept altered plea papers or defendants will not sign them.

Illegal immigration has always been part of the fabric of this American life. People come to this country - some risking their lives - for two things: the chance to better themselves and their families and for the opportunities afforded by the freedom and liberty espoused in the Declaration of Independence and codified in the Bill of Rights.

Please note, Ms. Lykos, that the word citizen is not be found in the Bill of Rights.

Parsing Judge Hughes' statement

parse - (v), etymology: Latin pars orationis part of speech; to examine in a minute way : analyze critically (having trouble parsing...explanations for dwindling market shares - R.S. Anson) intransitive verb

(From the Merriam-Webster OnLine Dictionary)

"It's better that [the prosecutors] try quality cases, rather than ones that shouldn't have been tried in the first place because that wastes jurors' time and costs money." -- Judge Jean Hughes, CCCL15, Houston Chronicle, March 28, 2009
I said in my post on the announcement of the Harris County District Attorney's whale hunt that I was troubled many many things I found in this quote from Judge Hughes. Now it's time to examine them.

What does Judge Hughes mean by better? 

Does she mean "more attractive, favorable or commendable?" And, if so, to whom? Does she mean "more advantageous or effective?" Again, if so, to whom? Or does she mean "improved in accuracy or performance?" If she means the latter, is she speaking in terms of the state?

Being that she then refers to the prosecutors in her quote, I would take that to mean she's defining better in terms of what benefits the prosecutor and/or the state. As a jurist, however, Judge Hughes is not supposed to take sides in any legal dispute. Her job is to hear the facts and apply the law. The outcome of any of these matters should not play a role in the decision-making process.

What does Judge Hughes mean by quality cases?

Quality refers to "a degree of excellence" or "a superiority in kind." How does one define what makes an excellent case? Is it the absence of fact or is the absence of question? Again, it depends on which side of aisle you sit and, once again, as Judge Hughes is supposed to maintain a neutral presence in the courtroom, this phrase is meaningless.

Some 90-95% of all criminal cases never go to trial. Some of these are dismissed because of an absence of fact and plea agreements are reached in others because of an absense of (remaining) question. What's left are cases with disputed facts and questions and cases in which the citizen accused has no incentive to enter into a plea agreement. 

What is Judge Hughes saying when she refers to cases that shouldn't have been tried in the first place... and how does she determine which cases fall into that category?

If the case shouldn't have been tried because the state did not have enough evidence to convince a jury to find the citizen accused guilty beyond a reasonable doubt, then the prosecutors who brought the case violated their ethical obligation to seek justice. If she's referring to cases in which citizens accused of crimes have demanded their right to a trial despite overwhelming evidence against them, then she is denigrating the concept of reasonable doubt. 

A judge has the authority to determine if the former occurred upon the citizen accused's request of a directed verdict on the grounds that the state failed to prove each and every element of its case beyond a reasonable doubt. The only time a judge can rule on the latter is if the citizen accused opts for a trial before the judge.

Judge Hughes said trying these cases "wastes jurors' time and costs money." Exactly how?

If it's the result of the state taking cases to trial in which the prosecutors know they can't meet their burden of proof, I would agree with Judge Hughes. But I'm troubled if she's referring to cases in which a citizen accused exercises his right to trial by jury and loses. I would like for Judge Hughes to explain how it's a waste of time and money for one to exercise a right guaranteed by the Constitution. Men and women have died in this country and around the world for that right -- a day or two out of someone's schedule is hardly equivalent.

What does Judge Hughes consider big problems?

Big problems for whom? Merriam-Webster defines problem as "a source of perplexity, distress or vexation." 

Every criminal defense attorney who's practiced in Harris County knows that the court coordinators in the misdemeanor courts constantly push for cases to be plead out or set for trial and some judges go out of their way to discourage citizens from exercising their right to trial by jury. And what about the citizen accused? Now he's got to pay a trial fee and see his case dragged out for months before it's resolved.

I take Judge Hughes statement to mean that she isn't troubled by the notion of forcing one citizen accused of a crime in each court to spend more time and money to resolve a case that he or she has already decided to resolve short of trial.  After all, it's not her life, or the lives of the prosecutors in her court, being affected.

Saturday, March 28, 2009

Call me Ishmael

Apparently the Harris County District Attorney's Office thinks it's a good idea to train baby prosecutors how to try cases by refusing to plea bargain on the "best" case in each of the 15 misdemeanor courts and forcing citizens to trial. (See this post from my colleague, Houston criminal defense attorney Mark Bennett's blog.)

According to First Assistant District Attorney Jim Leitner, a former criminal defense attorney, doing so would improve morale among the prosecutors in the misdemeanor courts and provide valuable trial experience.

"Everyone was fired up about this at first. It's an innovative idea that I had. If the public thinks this is bad, if the judges think it's bad, then we won't do it." -- Jim Leitner, HCDAO
Leitner suggested the prosecutors pick the case that has the most favorable facts and evidence and refuse to plead the case out. Judge Jean Hughes, who presides over Harris County Criminal Court at Law No. 15, said such cases are called "whales."

"It's better that they [prosecutors] try quality cases, rather than ones that shouldn't have been tried in the first place because that wastes jurors' time and costs money. It's not going to cause any big problems." -- Judge Jean Hughes
I don't know what part of Judge Hughes' statement bothers me most. It's a given that most cases tried, both in criminal and civil court, are the ones with the murkiest facts and biggest questions. Parties to cases with fairly clear-cut facts gain nothing by taking them to trial -- it makes sense, both in terms of money and in judicial efficiency, for those cases to be settled; whether by dismissal or plea bargain. In the criminal courthouse, that leaves us with the cases in the middle and the cases in which a citizen accused has nothing (or very little) to lose by pushing them to trial.

I also wonder what Judge Hughes' attitude would be if every citizen accused of a crime in her court demanded that their cases be tried before a jury. Just imagine the chaos that would ensue at the Harris County (In)justice Center if that were to happen.
"It's unethical. A prosecutor's job is to seek justice, not win easy cases." -- Mark Bennett, President, Harris County Criminal Lawyers Association
Of course a citizen accused of a crime who is not allowed to plead out her case could always plead guilty to the jury and argue punishment instead of guilt/not guilt (I refuse to call it guilt/innocence because there is no determination of innocence at trial).

There is also the little matter of how we learn through our experiences. We learn far more by failing and analyzing our mistakes than we do by being perfect. Winning a case doesn't teach you how to win another case; losing a case, however, gives you the opportunity to analyze what worked and what didn't so that you don't repeat your mistakes the next time you set foot in the well of the court.

And never forget what happened to Captain Ahab as a result of his obsession with a big whale.

We're trained professionals

According to the NHTSA Manual entitled DWI Detection and Standardized Field Sobriety Testing, when conducting the horizontal gaze nystagmus (HGN) test, the officer is to check the suspected drunk driver's eyes for pupil size, resting nystagmus (involuntary jerking) and tracking ability. The manual states that if "the eyes do not track together, or if the pupils are noticeably unequal in size, the chance of medical disorders or injuries causing the nystagmus is present."

Presumably this would also include drivers who are blind in one eye.

Not, however, according to Officer Chris Murray of the Pasadena (Texas) Police Department. On December 14, 2008, Officer Murray, while offduty, stopped a driver he suspected of driving while intoxicated. Per Officer Murray:
I performed the Horizontal Gaze Nystagmus test on the suspect, and during the pre-test check, I noticed that the suspect's left eye appeared to have some sort of deformity. The pupil was not readily visible, the brown part of the eye was cloudy. I asked the suspect about the problem, and he told me he was blind in one eye. The suspect's eyes however, tracked normally. The suspect had a lack of smooth pursuit in both eyes, a distinct sustained nystagmus at maximum deviation, and an onset of nystagmus prior to forty-five degrees. The six clues (three for each eye) were a strong indicator of intoxication. (emphasis mine).
It's common place to see every officer claim to have observed all six clues for every driver they test, but it's a bit out there to find an officer who claims to have observed these clues in an eye out of which the driver can't see.

Friday, March 27, 2009

Who's the real victim?

Reaction to Harris County DA Pat Lykos' decision to suspend and reassign two prosecutors for a Batson violation has been interesting, to say the least.

Some have defended the two prosecutors, saying they were good lawyers without any racist tendencies and have criticized Ms. Lykos for her actions in the matter. Some have put blame on the judge for not placing the wrongly stricken jurors on the panel and for busting a panel the following day. Some have praised Ms. Lykos for signaling the end of the good ol' boy network at 1201 Franklin.

What few have done is focus on the harm to Ricky Whitfield. Mr. Whitfield has been charged with murder and aggravated assault with a deadly weapon. He has been held in the Harris County Jail, without bond, since January 4, 2008. Mr. Whitfield was given a new trial date - June 8, 2009 - after the second panel was busted the day after Mr. Whitfield's attorneys' successful Batson challenge.

Mr. Whitfield, who is presumed innocent unless the state can prove him guilty beyond a reasonable doubt, will have spent more than 15 months behind bars when he sits down at the defense table in June.

If the prosecutors' careers are tarnished as a result of their actions, so be it. It is because of their actions on this week, that Mr. Whitfield's day in court has been delayed.

Thursday, March 26, 2009

Harris County prosecutors disciplined for Batson violation

On Thursday, Harris County District Attorney Pat Lykos did something that signified the end of the good ol' boy network at 1201 Franklin. She sanctioned two prosecutors who committed a so-called Batson violation.

In a criminal trial in Texas, prosecutors and defense attorneys are allowed an unlimited number of challenges (to strke a potential juror) for cause. In order to strike for cause, the attorney must show that the potential juror cannot follow the law or has a bias or prejudice that would affect his ability to hear the case fairly. Both sides are also allowed a limited number of strikes without cause -- so long as a juror is not stricken based solely on his or her race, ethnicity or gender.

In Ricky Whitfield's murder trial, the prosecutors used seven of their ten strikes to excuse African-Americans from the jury panel. The result was a jury composed of ten whites and two Hispanics.

Mr. Whitfield's attorneys, Jacquelyn Carpenter and Eric Davis, raised a Batson challenge that forced the prosecutors to give a race-neutral reason for their strikes. After State District Judge Jeannine Barr heard their reasoning, she granted the defense motion and dismissed the jury panel.

Ms. Lykos docked the pay of the prosecutors and removed them from trial assignments. Said Ms. Lykos:

"I assume full responsibility for the incompetence of these two prosecutors. There is not invidious racism involved here, but negligence or incompetence if you will. If I thought for a moment that there were racial motives, [the prosecutors] would have been fired."

Ms. Lykos assigned division chief Terrence Windham to investigate the two prosecutors. Mr. Windham made the ridiculous assertion that the prosecutors were unaware they had stricken all of the African-American jurors.

"They were shocked when the twelve people were called from the panel to the jury box. They were shocked that they didn't see any African-Americans. That's when they realized they had stricken all the African-Americans from the jury." - Terrence Windham

I find Mr. Windham's assertions an insult our intelligence. Under Ms. Lykos' predecessor, the disgraced Chuck Rosenthal, Harris County prosecutors routinely referred to African-American panelists as "Canadians" and systematically eliminated them from serving on criminal juries. While I make no allegation that the prosecutors involved in Mr. Whitfield's case are racist, the office they work for is steeped in institutional racism.

What happened during jury selection in Mr. Whitfield's case was routine during the Holmes and Rosenthal regimes, what happened Thursday was refreshing. Ms. Lykos has made it clear that it is no longer business as usual on Franklin Street.

Said my colleague, Houston criminal defense attorney and president of the Harris County Criminal Lawyers Association: "It's an encouraging sign that (Lykos) is interested in trying to make things right and trying to make the system work fairly for all of the citizens of Harris County, not just the rich, white ones."

Mr. Whitfield will now sit behind bars at the Harris County Jail until his new trial date in June.

An exaggerated sense of self-importance

I had to take care of a matter in a justice of the peace court downtown the other day and was surprised to see a metal detector inside the lobby. Luckily I had my court badge and was able to walk on by, but I was struck by the exaggerated sense of importance surrounding a court that handled traffic tickets, small claims cases and marriage licenses.

The City of Houston Municipal Courthouse also has a metal detector, as does the municipal court in Bellaire. I find it amusing that traffic courts feel the need to install these devices and inconvenience the citizens who are forced to appear and "contribute" to the local government.

It's even more amusing when you consider that most JP courts in Harris County don't feel the need to install metal detectors and the county courthouses away from Houston (Fayette County and Jackson County, for example) don't use them.

Of course installing the devices makes the bailiffs, the prosecutors and the judges feel more important, I suppose.

But the need to feel important is no excuse for what happened to Houston Texan Ryan Moats and his wife on March 18 in Dallas.

After receiving a call from the hospital that his mother-in-law was dying, Mr. Moats and his wife headed to the hospital to be at her bedside when she died. As they neared a redlight near the hospital, Mr. Moats turned on his hazard lights and went through the intersection. A Dallas police officer, Robert Powell, saw him and followed him into the hospital parking lot where he initiated a traffic stop. Despite Ms. Moats protests that her mother was dying, the officer told her to stay in the car. She refused and ran into the hospital. The officer then held Mr. Moats, at gunpoint, in the parking lot for at least fifteen minutes - even threatening to take him to jail.

By the time Mr. Moats was allowed to leave the parking lot, his mother-in-law was dead.

The ticket has since been dismised and Officer Powell was reassigned.
  • See additional coverage (including in-car video) from KHOU-TV.

You can't always believe what you (think) you see

On Wednesday The Justice Project released a scathing report entitled "Convicting the Innocent: Texas Justice Derailed" in which TJP analyzed the reasons that thirty-nine innocent citizens spent over 500 years in prison before being exonerated by DNA evidence. According to the research, eyewitness identification "is by far the leading factor in wrong convictions in Texas." 
"Any wrongful conviction is a tragedy because it leaves the guilty unpunished and condemns the innocent to prison, or death." -- Wallace B. Jefferson, Chief Justice, Texas Supreme Court
My colleague, Houston criminal defense attorney Mark Bennett commented on my blog post about Harris County DA Pat Lykos' report on the Rachell exoneration, that eyewitness identification was a much more serious issue than faulty DNA analysis. Mr. Bennett is correct in that assessment as DNA evidence is present in but a small minority of cases.

Per TJP's report:
"While the majority of this report focuses on the wrongful convictions uncovered through DNA testing in Texas, they are only the tip of the iceberg. The advent of DNA technology has given our criminal justice system a tool that can provide incontrovertible evidence of guilt - and innocence - in cases where the presence of biological evidence is dispositive. Unfortunately, biological evidence is present in only a fraction of criminal cases. While DNA is an invaluable tool, it does not solve the problems of unreliable evidence that repeatedly surface when wrongful convictions are discovered. The vast majority of cases simply do not have probative DNA evidence."
This lack of probative DNA evidence presents a substantial hurdle to most citizens seeking exoneration - how do you prove your innocence?
"While a defendant is innocent until [should really read "unless"] the prosecution proves guilt, after a conviction occurs, the burden shifts to the defendant to prove innocence. New evidence that merely casts doubt on the conviction is not nearly enough to overturn a conviction - which is why DNA evidence, where it exists, is so successful in exonerating the innocent. Without DNA evidence, inmates face an almost insurmountable challenge to establish their innocence conclusively."
The report lists the following facts regarding exonerations in Texas:
  • Texas has had more wrongful convictions exposed by DNA (39) than any other state in the country;
  • The 39 exonerated citizens spent over 548 years in prison (an average of 14 years each);
  • State and local governments have paid out over $17 million in compensation to the exonerated;
  • Twelve Texas counties have uncovered wrongful convictions through DNA evidence;
  • Dallas County leads in the number of wrongful convictions because Dallas County preserves DNA evidence while other counties destroy it;
  • Nine citizens have been freed from death row based on evidence of innocence;
  • 85% of the wrongful convictions involved eyewitness identification;
  • 28% of the wrongful convictions involved the use of unreliable or limited forensic methodologies;
  • 18% of the wrongful convictions involved false forensic testimony;
  • 18% of the wrongful convictions involved the withholding of exculpatory evidence or other prosecutorial misconduct;
  • 13% of the wrongful convictions involved accomplice testimony; and
  • 13% of the wrongful convictions involved false confessions or guilty pleas.
While I will come back to this report in a future posting, today I am focusing on the reliability of eyewitness identification and what should be done to lessen the impact of mistaken eyewitness identification in the future.

The report points out that Texas has no statutory rules or standards regarding how live lineups or photo arrays are conducted. More troubling is the fact that some 88% of law enforcement agencies have no written policies regarding lineups and photo arrays.

TJP calls on Texas to adopt the following safeguards when conducting lineups and photo arrays:
  • Law enforcement agencies should document lineups or photo arrays by providing the photos used in a photo array or a photograph of the live lineup as well as all dialogue and witness statements made during the procedure.
  • Law enforcement agencies should inform eyewitnesses, prior to viewing a live lineup or photo array that the accused may or may not be in the lineup. Eyewitnesses should not feel compelled to make an identification.
  • Lineups and photo arrays should be composed "fairly." The report calls for fillers to be selected based not on their resemblance to the accused but, instead, on their resemblence to the description provided by eyewitnesses.
  • The person conducting the lineup or photo array should not know the identity of the accused. Having a "blind" person conduct the lineup reduces the chances of the officer influencing the results of the lineup or photo array.
  • Law enforcement agencies should avoid exposing eyewitnesses to multiple viewings of the accused.
  • Law enforcement agencies should consider using sequential arrays instead of traditional arrays. In a sequential array, an eyewitness views one individual at a time which prevents the witness from making an identification through process of elimination.
While juries seem to accept eyewitness testimony as the most accurate evidence, we know instinctively that such testimony is fraught with problems: lighting, time, memory, excitement, fear, anger and ethno-centrism among others. The proposals in The Justice Project's report are a meaningful first step in reducing the number of wrongly convicted citizens behind bars.

Getting my ducks in a row for an ALR hearing

Wednesday, March 25, 2009

Judge Killer responds

On March 24, 2009, Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, filed her response to the State Commission on Judicial Conduct's inquiry into her actions on September 25, 2007 as they related to Mr. Michael Richard.

Judge Keller stated in her response that "there were no written Execution-Day procedures" on the date in question. She said the procedures that existed at that time were not put into writing until November 2007.

Judge Keller stated that she was not the judge assigned to Mr. Richard's case and that she did not know who was. She said that it was General Counsel Ed Marty's job to assign duty judges.

She also claims that Judge Tom Price drafted a dissenting opinion "in anticipation that Richard might file something with the [Court of Criminal Appeals)..." She also said Judge Price anticipated that a majority of the judges would deny Mr. Richard's appeal if it were filed. 

Judge Keller says she received a call from Mr. Marty with a question about when the clerk's office closed. She said she was aware that pleadings had been filed in the past after hours on execution days - only not with the clerk. 

She said she did not reveal her conversation with Mr. Marty to the other judges the following day because she assumed they already knew about it.

Her response also indicates that the two individuals whose writs were accepted by the U.S. Supreme Court, had their appeals denied and were executed within a week of Mr. Richard's execution.

Judge Keller pointed out that, at the time of his execution, Mr. Richard had had two trials, to direct appeals, two state habeas corpus proceedings and three federal habeas corpus proceedings and had not once, prior to the filing in question, raised the issue of whether the method of execution used in Texas, lethal injection, was unconstitutional. She said the Commission's assertion that Mr. Richard "was not accorded 'access to open courts or the right to be heard according to law'" was "patently without merit."

Judge Keller alleges that a staff member of the Texas Defender Service called the deputy clerk at 4:45 pm asking if the clerk's office would remain open past 5:00 pm. Since state employees in the CCA are off the clock at 5:00 pm (nice work, if you can get it), and since everyone knew that, the TDS should've checked the blue pages of the phone book to find out which judge was in charge of Mr. Richard's case and should've contacted that judge directly.

Judge Keller also disputes the contention that the TDS was having computer problems that day. She said that TDS could have filed a handwritten pleading with the court, had they chosen to do so.

She casts blame for the fiasco on General Counsel Marty, saying that he should have informed TDS who the duty judge was and that he should have informed the duty judge of the request. She also throws out the Houston Chronicle's piece this past Sunday about attorneys who failed to file pleadings on time in nine death row appeals (see what my colleague, Houston criminal defense attorney Mark Bennett had to say about it).

While I agree that Mr. Marty deserves some blame in this affair, Judge Keller was, and is, the presiding judge of the CCA and, with that title, goes some responsibility. Ultimately she is responsible for what happens in that court and her assertion that she did not know who was assigned to Mr. Richard's case sounds patently absurd. I also find it interesting that she uses the unconscionable errors of other attorneys to excuse her own behavior that fateful afternoon. And while Mr. Richard had availed himself of the courts on many prior occasions, her decision that day denied him access on the eve of his murder at the hands of the State of Texas.

The most troubling of Judge Keller's allegations, however, is that Judge Price authored a dissent before any pleading had been filed. Is Judge Price psychic? Even though he might have anticipated counsel's arguments, his actions indicate that he had made up his mind without even considering Mr. Richard's appeal.

Judges to receive ignition interlock "training"

The Texas Center for the Judiciary is offering an ignition interlock device workshop for Texas judges entitled "Blow 'n' Go" in May up in Dallas. The workshop is funded by a grant from the Texas Department of Transportation to "increase the effectiveness of DWI adjudications in Texas."

MADD is listed as one of the Texas Department of Transportation's Traffic Safety Program Partners according to the Texas Center for the Judiciary's website.

According to the Texas Department of Transportation's Traffic Safety Goals for 2010, traffic safety grants are to be used "to improve adjudication of DWI cases through improved training for judges, administrative license revocation judges, and prosecutors, and improved support materials for judges and prosecutors." In other words, the grant money is to be used to align judges and prosecutors on the same side of the fence. And, here all this time I thought the judiciary and the executive branches were supposed to be separate.

"Reluctant to rely on breath testing devices as a supervision tool?"

"Have you heard lots of plausible excuses from defendants to to why the device failed?"

"This practical workshop covers ignition interlock laws, separates fact from fiction, and dispels urban myths." 

-- promo material for Blow 'n' Go

Warren Diepraam, late of the Harris County DA's Office (now with the Montgomery County DA's Office) will present a lecture on the law regarding ignition interlock devices. According to the promotional materials "ignition interlocks have emerged as a powerful tool in keeping DWI offenders from driving drunk." Mr. Diepraam will instruct the judges as to the law and "the politics behind Texas interlock statutes."

Four manufacturers (Smart Start, Draeger, Guardian, and LifeSafer) will then present a panel discussion about their products, services, support materials and how they work with offenders. I'm sure the presentation will include discussions on error rates, calibration problems and false postive readings.

The judges will then learn how to draft the "perfect order" once they have decided the interlock device is appropriate in a particular case.

At lunch the judges will hear from the Texas Transportation Institute about their recent ignition interlock survey and will have the opportunity "to conduct personal 'field' research on some of the urban myths relating to ways to defeat interlock and breath-testing devices."

The judges will then hear how Denton County "created a system to efficiently deal with DWI ignition interlock compliance and monitoring" from arrest to termination of probation. 

The judges will also learn how to conduct a Kelly/Daubert hearing after a lock-out (occurs when the device detects alcohol in the driver's breath and locks the ignition) to determine if the ignition interlock operates on junk science or not.

Nowhere during the seminar is there a presentation from a defense attorney, nowhere is there a presentation questioning the accuracy and reliability of the ignition interlock device and nowhere is there any balancing viewpoint. If this were a workshop for prosecutors I would understand -- after all, we don't invite prosecutors to present at defense seminars -- but the judiciary is supposed to be neutral.

Is there anyone else out there troubled by this?

Tuesday, March 24, 2009

MADD about interlocks

An Ohio state legislator has introduced a bill to make ignition interlock devices mandatory for citizens convicted of driving while intoxicated, even first-time offenders. Currently the decision whether or not to order a citizen to install the device rests with the court.

This proposal is in line with MADD's Campaign to Eliminate Drunk Driving. MADD is pushing for a national requirement that all citizens convicted of driving while intoxicated be ordered to install an ignition interlock device in their cars. But that's not all that MADD is pushing.

MADD also supports the mandatory installation of ignition interlock devices, or other devices to detect the presence of alcohol, on all cars. Nevermind that it's not against the law to have a drink and then drive a car -- provided you haven't lost the normal use of your mental or physical faculties or that the alcohol concentration in your body is less than .08 percent.

Interestingly enough, the Alliance of Automobile Manufacturers, General Motors and Toyota are platinum-level MADD sponsors and Volkswagen is a silver-level MADD sponsor.

Who would calibrate these devices? How often would the owner of the car be required to have the device calibrated? Who would monitor the information? Who would have access to it? What about a car that is shared by one or more people? If such technology were mandated, what about the Fourth and Fifth Amendments?

Is it really a good idea to sacrifice our liberty at the altar of public safety? 
  • See Arizona DUI Attorney Dan Jaffe's thoughts on MADD's latest proposal.
  • Here's what California DUI Attorney Lawrence Taylor had to say about the MADD campaign.

The selective abandonment of moral hazard

The Federal government announced plans yesterday to use our money to purchase so-called "toxic debts" from private banks in an attempt to free up credit markets.  The plan calls for using up to $100 billion of the bailout money and "giant federal loans" to encourage private investors to purchase securities backed by failing mortgages and mortgage-related investments, that have either no current value or no market.

The stock market soared over 500 points after the announcement.

It seems to me that what we have here is the complete abandonment of the concept of moral hazard, a phenomenon by which someone accepts risks they wouldn't otherwise accept because they are insured from harm. These so-called "toxic debts" began as investment vehicles that carried a higher interest rate than other products because they were risky investments.

The banks that purchased these instruments were (presumably) aware of the basic laws of economics and knew they were putting their money in a risky investment. They chose to do so because of the potential reward if the bet paid off.

As it turned out, those banks made the wrong choice and now, instead of living with the consequences, they are being handed a lifeline and we are being left to hold the bag. So, let me get this straight, we are socializing the loss but privatizing the gain. While shareholders in the banks will be rewarded for the incompetence shown by their executives, taxpayers will be left holding worthless assets. Seems like a good deal, huh?

And why are we abandoning the idea of moral hazard? Because the banks are "too big to fail," we must protect them from themselves. Where's the incentive to evaluate risk when making investments if los federales ride to the rescue when the so-called financial geniuses have a collective brain fart?

Think of moral hazard like this - parents give son the keys to a new car on his 16th birthday. Son drives like a maniac and totals the car. Parents immediately go out and buy him a new one and hand over the keys with no conditions attached. What do you think happens next?

So we bend over backwards to bail out the banks because they're "too big to fail," yet a prosecutor doesn't want to hear about how putting a father behind bars will devastate a family. Bank executives don't face the consequences of their decisions, yet a prosecutor insists that a father accept his. The moral hazard of bailing out the banking sector is dismissed with nary a sound, yet a prosecutor insists on imprisoning a father because of the message showing compassion for a family would send.

Monday, March 23, 2009

The mood altering sounds of Humble

I received a rather peculiar phone call this afternoon from a man who had pled guilty to driving while intoxicated in Harris County. He wasn't calling to complain about his attorney or to find out how he could get an occupational license. He called to let me know that the Humble Police Department was playing tricks on the minds of citizens accused of driving while intoxicated.

According to our caller, officers in Humble would take a citizen into a room before asking them to perform coordination exercises on camera. The police then pumped disorienting (or disorientating as our British cousins would say) sounds and music into the room.

Once the citizen accused had been subjected to a sufficient amount of mood-altering sounds he would be taken to the video room and asked to perform on camera.

The gentleman told me he was calling defense attorneys around town to let them know what was going on in Humble. Apparently it didn't do him any good, though.

Saturday, March 21, 2009

What time do you have?

What time is it right now?

I have no idea because the clock on the computer, the clock on my cellphone and the two clocks in my bedroom all have a different time on them. Which one, if any, is correct?

We're very casual about time. We round up or down a quarter-hour when someone asks the time. We'll say that it's almost or just past an hour. "I'll be there in 15 minutes" might mean ten minutes or twenty minutes.

The court coordinator tells your client to be in court at 8:30 a.m. but the judge doesn't sit and call the docket until almost 9:00 a.m. The judge tells the parties in a case to be back in the courtroom at 1:30 p.m. but he doesn't return until almost 2:00 p.m.

Time is taken very seriously, though, at NASA where engines must be fired or shut down at a particular time in order for a spacecraft to get into or remain in a particular orbit. If mission control is off by a minute or two the astronauts could be lost forever or burned upon re-entry.

A watch, or a clock, is an instrument for measuring the passage of time. For most us of the accuracy of the instrument is relatively unimportant -- as long as we are where we are supposed to be within a reasonable tolerance, everyone is happy. We don't calibrate our watches and clocks on a regular basis because, in the end, it doesn't really matter all that much.

The point being, the degree of accuracy we require in our watches and clocks depends upon what is being measured and by whom. A houseful of clocks within a few minutes of each other is perfectly accepable -- a roomful of clocks within a few minutes of each other at NASA is not.

The same principle applies to the Intoxilyzer, or any other breath testing machine.

After all, just because I say my watch is accurate, does that make it so?

Friday, March 20, 2009

No quick fix to Galveston's woes

For those of you who don't know, the island of Galveston was hit extremely hard when Hurricane Ike came ashore last September. Reminders of the storm are still everywhere on the island. For months boats were littered along the interstate and the causeway bridge. You can still drive around and see businesses and houses that were destroyed by the storm surge.

Much like New Orleans, a significant portion of Galveston's pre-Ike population has not returned. Also, like New Orleans, Galveston was not a very affluent city before the storm. From the turn of the 20th century up through the 1950's, Galveston was a wild, almost-anything goes town -- the Gulf Coast's equivalent of Atlantic City. Local clubs such as the Balinese Room were legendary for their music, celebrity clientele and gambling.

The Balinese Room was built on a pier out in the Gulf of Mexico. Whenever the Texas Rangers would come a-calling, the warning would come from a look-out running down the pier. The staff and patrons conducted regular fire drills in preparation for police raids. Alas, the Balinese Room was destroyed by Hurricane Ike and is now but a memory.

Galveston was a thriving port city up until the Port of Houston opened. Once the ship channel was carved through Galveston Bay, traffic to the Port of Galveston dried up -- and so did the island's prosperity.

There is now a group of residents who want to "bring Galveston back" by establishing casino gambling on the island. Much like the architects of the "New" Boardwalk in Atlantic City, gambling proponents believe casinos are the panacea to the island's woes. The champions of casino gambling, including Tillman Fertitta, see the scores of cars with Texas plates at casinos in Lake Charles, Shreveport and Bossier City, Louisiana and fantasize about that money staying in Texas.

Now, before I go any further, y'all should know that I love to play poker and blackjack as much as the next guy. I would also like to see our money stay in Texas. But, those who think casino gambling will save Galveston are either delusional or are selling snake oil.

Gambling did not save Atlantic City. Hike one block off the boardwalk and you're in the ghetto. Abandoned buildings and crack houses stand on the streets that inspired the Monopoly board game. The casinos are owned by out-of-state corporations and the vast number of casino employees come from other parts of the state (parking in vast parking lots along the turnpike). Very little money from the gilded casinos finds its way into the coffers of Atlantic City.

The impact of the casinos in Louisiana has been more positive, however, as Galveston's gambling proponents would point out. But, Shreveport, Bossier City and Lake Charles were not in serious decline when legalized gambling came to town. The Louisiana cities also had better infrastructure and a more qualified workforce than Galveston has.

Those cities also had something else that Galveston lacks, room for growth. If you've ever taken 61st Street to Seawall you know that Galveston would have a hard time accomodating much more traffic. Additionally, where would the gamblers park? Space is at a premium on the island, particularly along the seawall.

And we mustn't forget that with inexpensive air fare and a glut of hotel space in Las Vegas, a good time can be had out in the desert for a relative pittance - an option that wasn't available to the masses during Galveston's heyday.

Now I don't know what the answer is for Galveston, but I do know that casino gambling will not solve the island's problems. Like everything else in life, there are no shortcuts.

Thursday, March 19, 2009

Making it easier for vampires

Texas State Senator Bob Deuell (R-Greenville) has introduced S.B. 261 that would make it easier for the vampires to draw the blood of citizens accused of driving while intoxicated. State Representative Dan Gattis (R-Georgetown) introduced a companion bill, H.B. 747, in the house.

Currently under Section 724.012(b)(3) of the Texas Transportation Code, "a peace officer shall require the taking of a specimen of the person's breath or blood if...at the time of the arrest, the officer reasonably believes that, as a direct result of the accident: (a) any individual has died or will die, or (b) an individual other than the person has suffered serious bodily injury; and the person refuses the officer's request to submit to the taking of specimen voluntarily."

Sen. Deuell has a problem with some motorists exercising their right to refuse to provide breath or blood specimens. He's upset that citizens involved in accidents in which no one was killed or seriously injured have the gall to force the state to prove they were intoxicated.

Approximately half of the citizens arrested for suspicion of driving while intoxicated exercise their right to refuse to submit to chemical testing. According to Sen. Deuell, 52% of the Administrative License Revocation cases filed in 2008 involved a breath test refusal. An even higher percentage of citizens with prior convictions for driving while intoxicated refuse to submit to breath tests.

Sen. Deuell is upset that judges and juries prefer to be certain of a citizen's guilt before convicting them of driving while intoxicated and doesn't think it right that law enforcement officers should be held to the requirements of the 4th Amendment when obtaining search warrants to draw blood.

In order to combat these supposed miscarriages of justice, Sen. Deuell is proposing that warrantless blood draws be authorized for any citizen a peace officer suspects is intoxicated who is involved in an accident in which another person suffers bodily injury.

According to Section 1.07(a)(46) of the Texas Penal Code, serious bodily injury refers to any bodily injury "that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Bodily injury, on the other hand, per Section 1.07(a)(8) of the Texas Penal Code, is "physical pain, illness or any impairment of physical condition." That means that any accident in which a suspected intoxicated driver is involved, if anyone else suffers any physical pain, the driver may be subjected to a warrantless forced blood draw.

In no other type of case may a citizen accused be coerced into incriminating themselves by word or by submission to any testing or analytical process; but then no other violation of the penal code is as profitable to the state as driving while intoxicated. The Department of Public Safety stands to make at least $3,000 over the course of three years in surcharge payments for each of those 109,000 citizens arrested for DWI in 2008 as well as another $125 per person for reinstatement of their driving privileges. That comes out to $327,000,000 in surcharge payments and $13,625,000 in reinstatement fees. This doesn't even include the filing fees counties charge to file a petition for an occupational license.

DWI is a cash cow for Texas and that's the dirty little secret no one wants to talk about.


For a slightly different viewpoint, see what Washington DUI Attorney Garth O'Brien had to say.

Wednesday, March 18, 2009

Upon further reflection...

On the night of St. Patrick's Day, law enforcement officers in Montgomery County, Texas, set up a DWI checkpoint in The Woodlands -- at the base of an overpass.

After stopping a citizen suspected of driving while intoxicated, officers asked a wrecker driver to park on top of the overpass with his lights on to warn oncoming motorists. Shouldn't this have been a sign? In fitting irony, another motorist, who was subsequently arrested for DWI, slammed into the back of the wrecker, injuring the wrecker driver.

Perhaps the officers who made that decision should have had their blood drawn to determine if they were under the influence.

The tail wagging the dog

In most courts the prosecutor negotiates pleas with defense attorneys and unrepresented citizens. The City of Houston Municipal Court is not most courts, however. Behind the walls of their fortress (designed in that lovely Soviet-era government building style), the city prosecutors turn over a good deal of the negotiating to the officers who wrote the tickets.

It's one thing to consult with a complaining witness in a case to find out whether he or she is comfortable with a given outcome, it is quite another to hand the negotiating power over to a person with a personal stake in the outcome of the case. Wouldn't that constitute the unauthorized practice of law, a Class A misdemeanor in the State of Texas?

Let's see, the prosecutor's job is to represent the city against citizens accused of committing traffic offenses. A criminal defense attorney's job is to represent the citizen against the oppressive power of the state. It is verboten for a non-attorney to represent any citizen in court. Allowing that to happen would be condoning the unauthorized practice of law. But the courts allow police officers to negotiate on behalf of the city with defense attorneys in the courtroom -- in front of the judge. How is this practice any different from a non-attorney representing a citizen? 

In fact, Rule 5.05 the Texas Disciplinary Rules of Professional Conduct states that a "lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The rule does not, however, define unauthorized practice of law. An attorney does not violate the rule by delegating duties to a paraprofessional as long as the attorney supervises the delegated work and maintains responsibility for it. Is handing over the reins the same as delegating? I think not.

So why is this allowed to happen at the fortress on Lubbock Street? Could it be that the municipal court is a cash machine for the City of Houston? Could it be that municipal court judges hold their benches as long as the revenue pours in? Could it be because the prosecutors are made up of timid attorneys afraid of their own shadows and "volunteers" from the Big Law firms downtown? Could it be because everyone is afraid that the police will issue fewer citations if their precious ATM (overtime) is affected?

Here comes word that the police department is reviewing overtime records of "several officers." Predictably enough, the police union is up in arms that someone is looking into their little operation.

This is from a database in The Houston Chronicle listing the salaries of all Harris County public employees for 2007. It is Exhibit A in my diatribe:

Car Allowance$0
Total Pay$120,039

Officer M.L. Davis, as anyone who has every practiced in the municipal courts knows, is the single biggest beneficiary of overtime among police officers who issue traffic tickets. I'm not certain, but I think if I looked up his residence I would find out that he calls 1400 Lubbock Street home.

Monday, March 16, 2009

Zen moment for the day

As I was heading down to the office this morning through the fog I noticed a police car coming in my direction. As he passed I saw that he was a constable and he (obviously) noticed my expired inspection sticker. 

I saw him pull into a driveway a few houses up the road so I took a right at the intersection and another right at the next block -- he hadn't displayed his emergency lights at this point. As I followed that street to the north I saw him once again in my rear-view mirror so I knew the gig was up. I pulled into a parking lot and he flashed his lights one time.

By the time he came to the window I had my driver's license and old insurance card in my hand. He took my license and asked me how long I had owned the car. I told him I was aware that the inspection sticker had (long since) expired but that I was just waiting until I got pulled over to take care of it.

After he finished laughing he asked me where I was going and what I did and then told me to take care of it on my own.

Saturday, March 14, 2009

Vindication for a client

The other day I represented a woman who was charged with failing to register a cat, failing to vaccinate a cat and failing to restrain a (stray) cat. The complaints were raised by a "neighbor" who lived across the street. As it turned out, this "neighbor" made similar complaints against a number of people living on that street (I represented another resident in a similar case a couple of years ago).

While reviewing the state's file that morning I noticed that the probable cause affidavits weren't right -- the animal control officer never stated how he came to believe the cats belonged to my client, how he came to believe that the cats weren't registered or how he came to believe that the cats weren't vaccinated. Instead, he just listed the ordinance provisions my client allegedly violated.

After the prosecutor offered to reduce the fine on two of the tickets to $1 and dismiss the others, my client said "No" and asked for her day in court. The prosecutor then dismissed ALL of the cases. My client was ecstatic when I gave her the news and hugged me and thanked me.

These weren't important cases in the overall scheme of things - they were just Class C violations of a municipal ordinance. However, for my client, they were very important. Had she plead guilty she would have validated her "neighbor's" harrassment; instead, with the dismissals, she felt vindicated.

Victory, like beauty, is in the eye of the beholder.

Friday, March 13, 2009

Anatomy of an exoneration

On March 12, 2009, Harris County District Attorney Pat Lykos and Houston Police Chief Harold Hurtt released a chronology, entitled the Rachell Report, of the wrongful conviction and (eventual) exoneration of Ricardo Rachell. Here is how a miscarriage of justice unfolded:

On October 20, 2002, the complaining witness told two women at a Wyatt's Cafeteria on Griggs Road that a man had tried to kill him. Once he was taken home, the child told the police that a black male offered him $10 to pick up trash and then took him to the 3700 block of Southlawn.

The following morning, the child's mother kept him out of school. As she returned home after taking her oldest son to school she saw the man she thought assaulted her son. She, and a couple of friends, walked around the neighborhood until she saw him again. Her son told her that was the man and she followed him to his mother's house and then called the police.

When the police arrived they placed Mr. Rachell in the backseat of a patrol car and asked the complaining witness if Mr. Rachell was the person who kidnapped him. The boy said he was. The boy then told Officer Wilson that Mr. Rachell took him to a vacant house, pulled down his pants and grabbed him from behind around the waist. ADA James Alston, who was working intake, declined to accept charges at that time.

Officer Wilson found a vacant new house on Foster Street with signs of forced entry and muddy footprints leading to the second floor. He also found bicycle tracks in the yard next door.

The case was then assigned to Ofc. Clemons of HPD's Juvenile Sex Crimes division. Ofc. Clemons contacted the complaining witness' mother to arrange for an interview with her son at the Children's Assessment Center. The boy described his attacker as a light-skinned black man having a "messed up eye" and no teeth. He told Ofc. Clemons he had seen Mr. Rachell in the neighborhood before. Deborah Parks, R.N., then performed a sexual assault examination on the boy and delivered the examination kit to Ofc. Clemons who tagged it.

Ofc. Clemons then spoke to the boy's mother who could not explain why she believed Mr. Rachell was the man who attacked her son. The mother told Ofc. Clemons she saved the clothes her son was wearing that day because a "yellowish cream substance" in his underwear made her uneasy. Ofc. Clemons then placed the sexual assault examination kit and the clothes in the HPD property room.

On October 22, 2002, ADA Serna accepted a charge of aggravated sexual assault of a child against Mr. Rachell. The following day Ofc. Clemons presented the facts of the case to ADA Freyer in person at the DA's office.

The 185th Judicial District Court appointed Ron Hayes to represent Mr. Rachell on October 28, 2002. Mr. Hayes was the only attorney appointed to represent Mr. Rachell and he never requested that tests be performed on the DNA samples.

Mr. Rachell had three prior arrests for possession of marijuana, trespass of a habitation and burglary of a habitation. He had pled guilty to the burglary charge was sentenced to six years in the penitentiary (he was paroled in 1985).

Mr. Rachell was arrested on October 24, 2002 and submitted a sample of DNA to Ofc. Clemons. That sample was also checked into the HPD property room. During an interview recorded by Ofc. Clemons, Mr. Rachell repeatedly denied any involvement in the attack.

On December 12, 2002, the complaining witness and a friend identified Mr. Rachell from a photo array.

Then ADA (now President-elect of the Harris County Criminal Laywer's Association) Joanne Musick presented the case to a grand jury which returned an indictment on January 30, 2003. There were no requests made to test the DNA evidence.

Jimmy Ortiz (also now a criminal defense attorney) took over the case from the departed Ms. Musick on April 25, 2003 and tried the case to a jury in June 2003. Mr. Ortiz never requested tests on the DNA evidence in the state's possession. During the trial of the case, Mr. Hayes brought out testimony that DNA samples were taken but never tested. He brought up the lack of testing again during his closing argument.

At trial, the mother testified that she was not certain the man she saw in the neighborhood the morning after the attack was the man who assaulted her son. She made no mention of Mr. Rachell's deformed face. The complaining witness also failed to mention Mr. Rachell's face.

Mr. Rachell was convicted of aggravated sexual assault of a child on July 3, 2003 and was sentenced to 40 years in prison.

Hon. Shawna Reagin (now a judge in the 176th Judicial District Court) was appointed to handle Mr. Rachell's appeal. She filed an appellate brief on January 9, 2004. The Court of Appeals affirmed the conviction on September 30, 2004.

Mr. Rachell then filed a petition for a Writ of Habeas Corpus on September 11, 2005 that was denied on November 7, 2007.

Mr. Rachell sent Ofc. Rodriguez a letter on September 21, 2007 in which he stated that Andrew Wayne Hawthorne was the man who committed the assault for which he was convicted. Lt. Staney reviewed the case and, although he noted similarites in the attack for which Mr. Rachell was convicted and attacks committed by Mr. Hawthorne, he was unconvinced. He did, however, find the untested forensic evidence and requested that the DNA material be analyzed.

In the Spring of 2007, Mr. Rachell filed a Chapter 64 (Texas Code of Criminal Procedure) request in the 185th Judicial District Court asking that DNA testing be performed on the items in evidence. According to the report, Mr. Rachell's attorney failed to file the necessary motion to begin the process of testing the biological evidence. ADA Sally Ring obtained the required affidavits and requested the trial court to order DNA testing.

The Texas Department of Public Safety issued a report on October 28, 2008 that concluded that Mr. Rachell's DNA did not match the DNA samples found on the items collected in this case. A bench warrant was issued for Mr. Rachell and a personal bond was granted (releasing Mr. Rachell from custody) while the state prepared the writ that would lead to the conviction being overturned.

Mr. Hawthorne was identified as the man who assaulted the complaining witness in a DPS lab report dated December 12, 2008. Mr. Hawthorned confessed to the crime on January 13, 2009 and charges were filed against him on February 24, 2009.

According to the report, "[t]he wrongful conviction of Ricardo Rachell and the length of his incarceration [were] the result of a series of unfortunate events, blunders and omissions. There was a cascading, system-wide breakdown."

One of the system failures was the shuttering of the HPD Crime Lab in December 2002 (it would not reopen until May 11, 2005). During the period in which the lab was closed, biological material had to be submitted either to the DPS or to a private lab for testing. This, however, does not explain why neither the state nor the defendant's attorney requested testing on the material.

Mr. Hayes may not have requested testing as part of his defense strategy - raising reasonable doubt. After all, the burden of proof is on the state and it is, therefore, the state's responsibility to test biological evidence in a case. The fact that no tests were conducted could raise a reasonable doubt that Mr. Rachell committed the crime.  Mr. Hayes was aware that a DNA analysis could be evidence that Mr. Rachell did commit the crime (sometimes it's better not to conduct tests on evidence).

At the time of the assault, the Harris County DA's Office did not have a policy regarding the testing of biological evidence.

The officers who responded to the initial call did not document the description of the alleged assailant; this, according to the report, may have led to the misidentification of Mr. Rachell.

The report also notes that Ofc. Clemons requested testing on the biological material but that no one ever followed up on his request. But "considering the deplorable conditions and incompetence in the lab, it may have ironically been beneficial to Rachell" that no tests were performed.

Finally, no one in the Juvenile Sex Crimes division was able to detect a pattern in child sexual assaults "virtually identical" to the one in this case that occurred less than one month after Mr. Rachell was arrested. While investigators eventually detected a pattern, no one bothered to review the file in Mr. Rachell's case.

So, in retrospect, we have a police investigation that was inadequate and a district attorney's office more interested in obtaining a conviction than in discovering the truth. How many other people are wrongly sitting behind bars today in cases in which there is no biological evidence to exonerate them?

Thursday, March 12, 2009

He must've been drinking

It may very well be true that no man is an island unto himself, but that hasn't stopped Scott Allan Witmer of Northampton Borough, Pennsylvania from claiming that the state can't prosecute him for driving while intoxicated because he is asovereign and that the laws of Pennsylvania do not apply to him.
Allan Witmer: "Don't all our souls live within ourselves? Isn't this where you really live?"
Judge Zito: "Your metaphysical properties are not on trial here."
Police were called to Mr. Witmer's house to investigate a domestic disturbance. Police noted that Mr. Witmer had bloodshot eyes and slurred his speech. Shortly after the officers left the house, Mr. Witmer climbed into his truck and promptly ran a stop sign and weaved across the center dividing line, while drinking.

As my colleague, Houston criminal defense attorney Mark Bennett, pointed out in his blog post "Redemption Theory vs. Reality," the theory that you can't be prosecuted because you are sovereign or because the flag in the courtroom has fringe or because your "straw man" is being prosecuted.

Giving credit where credit is due

Harris County District Attorney Pat Lykos blasted the Houston Police Department and her predecessor for their roles in the wrongful conviction and imprionment of Ricardo Rachell, who was exonerated in a sexual assault after DNA was (finally) performed on samples taken back in 2002. Mr. Rachell spent more than five years in prison.

Ms. Lykos called for DNA testing in every case in which testing is available and relevant. In addition, Ms. Lykos repeated her call for the shuttering of the HPD Crime Lab and the creation of a regional crime lab, possibly under the auspices of the Harris County Medical Examiner's Office.  The National Academy of Sciences called for the creation of regional crime labs in a recent report exposing problems in today's forensic sciences.

County Judge Ed Emmett, Houston Mayor Bill White and HPD Chief Harold Hurtt all expressed support for the proposal.

Mr. Rachell proclaimed his innocence before, during and after his trial, even going so far as to blame Andrew Wayne Hawthorne for the assaults. Mr. Hawthorne has since been charged with the assault. The DNA testing performed on the rape kit from 2002 excluded Mr. Rachell and pointed toward Mr. Hawthorne.

Ms. Lykos deserves credit for acknowledging that there are innocent people serving time in prison. She likewise deserves credit for her proposal to take the crime lab out of HPD's jurisdiction and put it under a department with no stake in the outcome of a criminal case.

Wednesday, March 11, 2009

My surreal moment of the day

I was down in Edna, Texas this morning in the 24th Judicial District Court on an aggravated assault/burglary case. Judge Skipper Koetter (thanks for the spelling help, Mark) walked into the courtroom, got up behind the bench and (I'm am so not kidding) asked everyone in attendance to bow their heads while he said a prayer.

So much for the separation of church and state in South Texas.

After I commented to the attorney sitting next to me that I had never seen anything quite like that, he said the judge used to make everyone recite the Pledge of Allegiance.

Ain't no place like Jackson County.

Tuesday, March 10, 2009

Making it easier to draw blood in Texas

Today Sen. Royce West (D-Dallas) introduced Senate Bill 1607, entitled An Act relating to the issuance of a search warrant for a blood specimen from certain persons arrested for certain intoxication offenses was recently introduced in the Texas Senate.  His is a companion bill to State Rep. Allen Vaught's (D-Dallas) bill (HB13) filed in the House on February 17, 2009.

As things stand currently, per Article 18.01(c)(3) of the Texas Code of Criminal Procedure, search warrants may only be issued by a judge of a municipal court of record, a county judge who is a licensed attorney in the State of Texas, or the judge of any statutory county court, district court, Court of Criminal Appeals or Supreme Court.

Sen. West's proposed legislation would allow magistrates who are licensed attorneys in the State of Texas to issue search warrants to collect blood specimens from anyone who is arrested for driving while intoxicated, intoxication assault or intoxication manslaughter and who refuses to submit to a breath or blood test.

The proposed bills would make it easier for the state to find a judge willing to turn a blind eye to the constitution and sign a warrant authorizing a forced blood draw. The proposed change would not affect any other type of search warrant. Just another example of the "special" treatment those citizens accused of DWI are subjected to in Texas.

Saturday, March 7, 2009

Beware the bogeyman

Every district attorney's office has its own bogeyman. In Harris County it's driving while intoxicated. The DA's policy is never to reduce a DWI. The prosecutors are told to try 'em or dump 'em.

In Galveston County, the bogeyman is prostitution. A first offense will net you 30 days, a second offense gets you 60 days and a third costs you 90 days. Probation is not offered to anyone who has a prior conviction - for anything.

It doesn't matter if you have no place to live because you've run away from your biological father who's a registered sex offender because he raped your older sister. It doesn't matter if you were molested and abused by him. It doesn't matter if the officer approached you and asked you how much for oral sex.

The Galveston County DA's Office won't think twice about reducing a DWI to obstruction of a highway or reckless driving - even with a high breath test, but don't bother asking them for some compassion or understanding if you represent an accused prostitute.

Friday, March 6, 2009

It pays to be a judge

To paraphrase Chris Issak, notice the robe.

First we had State District Judge Elizabeth Berry receive a free pass from a Johnson County court in an evidentiary hearing in which the presiding judge tossed out a blood test due to insufficient probable cause in the affidavit. Of course, if ordinary Joe or Jane were stopped for driving more than 2o mph over the speed limit and weaving and had a strong smell of an alcoholic beverage on their breath and had red glassy eyes and had a bevy of empties in the floorboard of their car, I dare say a judge would find enough probable cause to support the arrest.

Now we have the tale of Montgomery County (Texas) Judge Alan Sadler who was arrested for suspicion of driving while intoxicated after rear-ending another car in Conroe after leaving a restaurant where he had dinner and a couple of drinks. Police obtained a search warrant to draw Judge Sadler's blood. Judge Sadler blew a .02 about two hours after being detained. The Montgomery County DA's Office was kind enough to have Judge Sadler release the following morning and is now awaiting test results before deciding whether or not to file charges.

[note: in Texas, the County Judge is an administrative office -- the presiding officer of the commissioners' court which is the chief administrative body in a county.)

I wonder how many ordinary Janes and Joes are given the same benefit of the doubt? My clients are held at the county jail until someone posts a bond and they are left to fight a DWI while we await the results of a blood test.

The presumption of innocence lives in Texas - if you're a judge, that is.