Thursday, April 30, 2009
Wednesday, April 29, 2009
Tuesday, April 28, 2009
HGN Test Elements
- Place feet together
- Place hands to your sides
- Maintain the position
- Look at the stimulus
- Follow the stimulus with your eyes only
- Do not move your head
- Continue to follow the stimulus until the test is complete
- Do you understand?
- Officer positions stimulus correctly
- Officer checks for equal tracking
- Officer checks for equal pupil size
- Lack of smoot pursuit (timing element)
- Distinct & sustained nystagmus at maximum deviation (timing element)
- Onset of nystagmus prior to 45 degrees (timing element)
- Vertical gaze nystagmus
- Possible optokinetic (environmental issue)
Walk and Turn Elements
- Imagine a line
- Place your left foot on the line
- Place your right foot in front of your left
- Touch the heel of your right foot to the toe of your left
- Keep you arms to your sides
- Remain in this position and do not start walking until told
- Do you understand?
- Take nine heel-to-toe steps up the line
- Turn by leaving the lead foot on the line and taking a series of small steps
- Take nine heel-to-toe steps back down the line
- Officer demonstrates walking phse
- Officer demonstrates turn
- Look at your feet
- Count your steps out loud
- Keep arms at your side while walking
- Do not stop walking
- Do you understand?
- Begin walking and count your first step forward from the heel-to-toe position as step number one
- Poor testing surface
- Issues with shoes
One Leg Stand Elements
- Place feet together side by side
- Keep your arms to your sides
- Remain in this position and do not start until told
- Do you understand?
- Keep both legs straight
- Keep your arms by your sides
- Lift the leg of your choice
- Approximately 6 inches off the ground
- Point the toe of the elevated foot parallel to the ground
- Look down at the raised foot
- Count out loud by 1000's until told to stop
- Do you understand?
- Officer demonstrates balance and counting
- Poor testing surface
- Issues with shoes
Imagine my dismay when midway through my meal I heard my youngest calling "daddy" and coming down the stairs. I went and brought her to the kitchen and started making breakfast for her and her older sister. After serving her some Cream of Wheat, sliced strawberries and oranges and green beans (her favorite), I went back upstairs to see if my wife could watch her while she ate.
My wife had gone back to bed. As the schools were closed she wasn't teaching today - which was a good thing since her parents weren't coming over to watch the kids due to the flooding. After my wife came downstairs I headed up to get ready for work - when my phone rang.
A client on today's docket called to tell me he couldn't make it out of his neighborhood. Luckily his case was set for dismissal, if he had proof of insurance, so I knew I had to contact the court coordinator before docket call to reset the case. Then another client called with the same story. His case was also set for dismissal - and I had the proof of payment I needed - so I told him to stay put. My other setting was for a petition for nondisclosure that had been reset because the judge wanted additional items.
Of all my clients, Mr. Nondisclosure was the only one to show up in court -- but, of course, the judge called in sick. Arghhh!
Now, instead of a crowded morning rush and then an appointment with a real estate broker, I sit here in the attorney ready room at the Harris County Criminal (In)justice Center killing time before my appointment.
Ah, springtime in Houston.
Monday, April 27, 2009
Friday, April 24, 2009
"This is yet another reason why we need an independent crime lab. How many more reasons will it take?" -- Pat Lykos, Harris County District Attorney
Gary Alvin Richard was convicted of rape and robbery in 1987 based, in large part, on testimony from James Bolding, a supervisor in the HPD Crime Lab. Ironically enough, an analyst named Christy Kim performed the lab tests. Ms. Kim was also the analyst who tested samples in the Josiah Sutton case (Mr. Sutton has since been exonerated). It turns out that the crime lab withheld exculpatory evidence that could have led to Mr. Richard's acquittal.
The victim identified Mr. Richard some seven months after the attack took place. Lab tests apparently came back with differing conclusions but only test results that confirmed Mr. Richard as the attacker were reported.
Mr. Richard's attorney, Bob Wickoff, is leading an investigation into 160 cases an independent investigator flagged as problematic.
This case, as well as other exonerations, points out what can go wrong when an investigation is tailored to prove a certain person committed an act. Of course it's always more efficient to start with your conclusion and cherry-pick the facts that lead you to it. However, it's much more intellectually honest to test the evidence and follow the trail to where it leads you.
Q Two unrelated things. First, what's the latest thinking here on whether the White House would support some sort of independent commission to look at the interrogations during the Bush era? And then I want to follow up with a credit card question, if I could.
MR. GIBBS: Sure. Well, I don't -- I don't know that I have a lot to add on the first question other than what the President discussed earlier in the week and what I talked about on the plane yesterday.
And obviously there's been news reports of a discussion about such a commission here that the President decided I think the last few days might well be evidence of why something like this would likely just become a political back and forth.
Q So is that an indication that you don't want to see an independent commission? I'm trying to understand.
MR. GIBBS: By dint, an independent commission would probably not be something that I would weigh in on if Congress were to create one of those. I think that -- from the larger perspective, the President believes, as both of us have said, that the release of the memos are not a time for a retribution but to reflect on what happens and that we're all best suited looking forward.
Q Robert, does the President believe someone ought to be punished for allowing waterboarding? He changed the policy, but does he believe somebody ought to be punished?
MR. GIBBS: Well, I think that determination is going to be left up to, as I've said for any number of days looking backward on this now, that that's going to be made by a legal official.
Q And that legal official is the Attorney General?
MR. GIBBS: In our Constitution it is.
Q And what about this idea of the Attorney General appointing a special prosecutor?
MR. GIBBS: Well, I addressed this --
Q Is that his -- is that the Attorney General's decision or is that ultimately the President's decision?
MR. GIBBS: I'd have to look up, honestly, the legal statute to determine that. I don't -- I don't think the -- I don't believe that there's -- I think the Justice Department is fully capable of weighing the law.
Q You don't think a special prosecutor is necessary?
MR. GIBBS: I don't -- I don't think anybody has presented a compelling case why the Justice Department couldn't do this.
The U.S. once again plays by its own rules and deigns not to investigate atrocities committed by American intelligence officers that would bring a swift condemnation if committed by another nation. The American people deserve to know the truth about what was done in their name.
Thursday, April 23, 2009
My question is whether there is an inherent conflict in both writing the bond and representing the citizen accused?
As a criminal defense attorney, my job is to keep my clients out of jail as long as possible. That means stretching out a case if necessary. However, the bondsman's interest is ensuring that client shows up in court for every scheduled appearance - and, the longer a case draws out, the more risk the client won't appear or will end up in more trouble.
If you're the attorney and the potential bondsman, do you argue for a personal bond?
What happens if a client doesn't appear? Do you ask the judge to give your client one more chance or do you cut your losses and surrender the bond?
And the true dilemma - if your client skips, do you do nothing or do you track him down and hand him over to the police?
Do y'all think there's an ethical dilemma at play?
These criminal history background checks often yield results that are inaccurate or incomplete. The records may include investigations or arrests based on false or erroneous information and even charges that were dismissed for lack of merit. Some records reflect activities from decades ago that are entirely irrelevant to an employee's fitness for the employee's current work.
Wednesday, April 22, 2009
As an aside, the city still hasn't found a buyer for the downtown Hilton that the city bankrolled.
Where's the logic?
A person commits an offense (murder) if he:(1) intentionally or knowlingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Tuesday, April 21, 2009
"Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization and underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches." -- Justice Stevens (Arizona v. Gant)
- Breath sampling: Instrument automatically senses end expiratory air (alveolar) using the technique of slope detection in conjunction with a minimum volume and minimum time requirement.
- Calibration: The instrument is factory-calibrated and does not require periodic calibration adjustments as do fuel cell-equipped instruments.
- Breath Volume Measurement: A flow sensor allows breath volume information to be calculated and printed during each test.
- Simulator Temperature Monitor: This allows the instrument, through software and hardware, to monitor the simulator solution temperature.
- Warranty: One year, parts and labor. Two- and three-year are optional.
The tradition of case law-approved infrared spectrometry alcohol analysis is taken to a new level by the Intoxilyzer 8000. The Intoxilyzer 8000 combines both 3 and 9 [micron] measurements to deliver unparalleled accuracy and reliability.
Sunday, April 19, 2009
Crim justice system set up on "rational actor" model--fails on every level with psychiatric disturbance.The model, however, fails in almost all cases. The system of positive and negative incentivism that most of our penal codes follow assumes that we are all rational actors. In other words, the premise behind our criminal justice system is that we will all balance the benefits of a certain action with the potential costs of that action and that we will make our decision based on whether the behavior provides a net benefit or a net loss.
If the benefits of a certain act outweigh the costs, then we act in that manner. On the other hand, should the costs outweigh the benefit, then we do something else. Applied to the criminal law, if the benefit a person can obtain by committing a criminal act outweighs the possible consequences of getting caught, then our rational actor commits the criminal act. Conversely, if the consequences of getting caught in the act outweigh the potential benefit, a criminal act is averted.
Sound familiar? If you said neo-classical economic theory, you win a prize!
The problem with this rational actor model is that most of us act in the heat of the moment and focus only on the benefits of a particular action. We tend to ignore the possible consequences of our actions. Just look at the number of people buying candy bars and big gulps at the convenience store or how easily Bernie Madoff and Alan Stanford parted fools from their money.
In order to make a rational analysis before acting, one must look at the big picture. If you can step back and see where a particular action takes you (before you commit to it) then you can make a rational analysis of the situation and act in a way that maximizes the benefit to you. If, however, you are incapable of seeing beyond the end of your block, you will never be able to make a rational decision because you are incapable of estimating the consequences.
The rational actor model also fails to take into account the intoxicating effects of alcohol, drugs and sex have on our fellow man. Just take a look at your local newspaper's crime beat and see how many people killed someone they knew over a bet, a girl or a beer.
For further proof, look and see how many of our fellow citizens sitting behind bars are there for drug offenses.
Saturday, April 18, 2009
"An inmate should be able to press the intercom and communicate with the officer controlling the floor. When an officer cannot hear an inmate in need that is a life safety issue." -- Adam Munoz, executive director, Commission on Jail Standards
New Harris County Sheriff Adrian Garcia placed the blame on his department's lack of authority over maintenance crews working on the facilities. The county now has 30 days to submit a plan to fix the problems in a "reasonable" time.
Harris County currently houses over 10,000 inmates at the jail.
Maxwell v. State, 253 S.W.3d 309 (Tex.App.—Fort Worth, 2008, pet. ref’d).
Officer may consider defendant’s refusal to do Field Sobriety Tests when determining the issue of probable cause to arrest.
Texas Dept. Of Public Safety v. Nielsen, 102 S.W. 3d 313 (Tex.App.—Beaumont, 2003, no pet.).
Substantial evidence existed of probable cause for driver’s arrest for driving while intoxicated (DWI) where police officer noticed several signs of intoxication including alcoholic odor coming from vehicle, driver’s refusal to make eye contact with officer, driver’s refusal to roll down window, driver’s response that he had consumed two to four beers when asked if he had been drinking, and driver’s refusal to take field sobriety tests. The totality of the circumstances is substantial evidence of probable cause for Nielsen’s arrest.
Friday, April 17, 2009
APPLICANT: I'm here to get a driver's license.
CLERK: Let me see the paperwork.
APPLICANT: Here you go (handing application to the clerk).
CLERK: Now I need you to stand perfectly still while I wave this pen in front of your face. Just a second while I turn on the camera.
APPLICANT: (looks puzzled)
CLERK: Hold that head perfectly still. Here we go (waving a pen back and forth in front of applicant's face). Okay, that was good. Now I need for you to stand on one leg with your arms at your side. Whatever you do, don't put your foot down.
APPLICANT: (looks very puzzled while she struggles to keep from falling over). Can I ask you what this is all about?
CLERK: You can ask, but I can't answer that question just yet. Now I need for you to walk heel-to-toe up and back along that black line with your arms at your side. Take nine steps each way, please.
APPLICANT: You've got to be kidding.
CLERK: Do I look like I'm kidding (glaring at applicant in that way only a civil servant can)? Walk up and back along that line. Now!
APPLICANT: (with resignation) Fine. Here I go.
After the applicant finishes walking along the line she walks back up to the counter.
CLERK: Now you need to pay the fee and sign this form and then you'll be a legally licensed driver in Texas.
APPLICANT: (looking at a blank piece of paper with a signature blank) There's nothing on this paper. What am I signing?
CLERK: Do you want your license or not? You need to pay the fee and sign that piece of paper. We haven't got all day.
APPLICANT: (looking down at her watch stops herself from commenting) Here's your money. Do you have a pen?
CLERK: (looking incredibly put upon) Here.
The applicant signs the blank paper and hands it back, along with the pen, to the clerk.
APPLICANT: What was that paper all about? Was that just for my signature on my license?
CLERK: No. That paper was a waiver of your constitutional rights to remain silent and or speak to an attorney. You also waived your protection from self-incrimination and unreasonable search and seizure. Finally, and most importantly, you are now guilty until proven innocent. Have a good day. Next!
APPLICANT: (looking very disturbed) Wait just a minute. What are you talking about? What do you mean I waived my constitutional rights and protections?
CLERK: Well, anytime a police officer gets it into his head that you might be driving while intoxicated - you know, smells alcohol on your breath, for instance, you agree to blow into the state's breath test machine - but don't ask anyone how it works. If you ignore your obligation to provide evidence against yourself then we'll take your license away from you for 6 months and make you beg a judge to let you drive your car. Oh, and if the officer decides to arrest you and you, if you didn't blow into the machine, that's an indication that you were driving while intoxicated. Here's your license. Next!
APPLICANT: (looking down at her license in complete disbelief) What the...?
Thursday, April 16, 2009
Hamilton Burger was unavailable for comment.
Wednesday, April 15, 2009
Proclamation Suspending the Writ of Habeas Corpus
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:
Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;
Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:
Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.
In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.
Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.
By the President:
WILLIAM H. SEWARD, Secretary of State.
Tuesday, April 14, 2009
The client couldn't pay the surcharges because he couldn't get a job because the DPS would not renew his license because of the excessive surcharges owed. In his case, the only thing the DPS has accomplished is guaranteeing he will be breaking the law everyday.
Monday, April 13, 2009
Many Connecticut trial lawyers say prospective jurors are begging off jury duty more than often than ever because they're hesitant to spend time away from their jobs or job searches. The longer the trial is expected to be, the greater the reluctance to serve. -- "The Reluctant Juror"
Friday, April 10, 2009
"DPS has created havoc by attempting to inject its political agenda into the lawmaking process and improperly giving second-class to individuals who in every way have complied with the laws of the land regarding their presence in the United States and Texas." -- David Hinojosa, MALDEF
Thursday, April 9, 2009
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." -- Justice Douglas, Brady v. Maryland, 373 US 83 (1963)
"The prosecutor in a criminal case shall...make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal..." Texas Disciplinary Rules of Professional Conduct, Rule 3.09(d)Perhaps Donna Hawkins of the Harris County District Attorney's Office should rethink her position that exculpatory material will only be turned over to attorneys and citizens accused upon request.
Wednesday, April 8, 2009
"I don't think...people are going out of their way to make cases for productivity reasons." -- Gary Blankinship, president, Houston Police Officer's Union
Tuesday, April 7, 2009
"Until recently my faith in the criminal justice system, particularly the judicial system, was unwavering. But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed." - Sen. Ted Stevens.
"I was sick to my stomach...How could they abandon their responsibilities." -- defense attorney Brendan Sullivan.
There are few things in life better than the lead-up to Opening Day of the baseball season. Every year fans are overwhelmed with a sense of optimism about the prospects for the local nine. This year was no exception.
Monday, April 6, 2009
"If you don't want to provide any tests, we're going to assume you're drunk."
"This has nothing to do with your rights...we're detaining you pending a DUI investigation."
Sunday, April 5, 2009
She is right on her first premise but woefully off target with her second. There is nothing illegal about an undocumented person working in the United States -- it is a crime, however, for the employer to hire an undocumented worker.
The only effect of Ms. Lykos' policy will be to worsen the present overcrowding at the Harris County Jail.
Saturday, April 4, 2009
In many ways Mr. King's dream has been fulfilled. On the spring evening in 1968, who would have believed that 40 years later an African-American would be elected President of the United States? Who would have believed that Houston would have elected a black mayor and that Harris County would have elected a woman as its district attorney?
I feel confident that as my daughters get older, these events that we find significant and almost unthinkable will be the norm.
However, despite the strides we have made to erase the color and gender barriers of the past, we still see an incredibly disproportionate number of blacks under restraint of our criminal justice system. We still see disparate sentencing depending on one's socio-economic position and we still must be ever vigilant to attempts by the state to exclude African-Americans from jury panels in criminal cases.
The day is brighter and the horizon wider, but we still have much to do.
Friday, April 3, 2009
Wednesday, April 1, 2009
- "Yet another bad idea" (March 30, 2009)
- "ICE: Policy's effect on immigration would be minimal" (Defending People; April 1, 2009)
- "Another brilliant idea from Lykos and company" (Defending People; March 30, 2009)
65.04(d) The criteria for selecting the location for a sobriety checkpoint must include the number of traffic accidents in the vicinity of the location in which the use of alcohol was a factor and that occurred in the preceding 12 months and the number of arrests for intoxication-related offenses in that vicinity in the preceding 12 months. The selection of the checkpoint must be made without regard to the ethnic or socioeconomic characteristics of the area in which the checkpoint is located.
65.04(h) ...a peace officer may not request a person operating a motor vehicle at the sobriety checkpoint to display the person's driver's license or concealed handgun license or to furnish evidence of financial responsibility unless the officr has reasonable suspicion or probable cause to believe that the person has committed or is committing an offense...
65.04(i) A peace officer at the sobriety checkpoint may not require a motor vehicle operator to perform a sobriety test unless the officer has reasonable suspicion or probable cause to believe that the operator is in violation of Section 49.04 or 49.045, Penal Code. A peace officer who requires or requests an operator to provide a specimen of breath, blood or urine must comply with Section 724,Transportation Code.
65.04(c) The procedures for the operation of a sobriety checkpoint must ensure that the selection of motor vehicles to be stopped is reasonably predictable and nonarbitrary.