Monday, June 29, 2009

Next we'll tack on a portion of the electric bill as a court cost...

I was down in Missouri City Municipal Court this morning with a couple of traffic scofflaws. The judge came out and explained to those gathered in the courtroom what was going on. He informed those in the gallery that today was set for pre-trial conferences and that they would try to work out as many cases as possible but, if for one reason or another a case couldn't be worked out, it would be set for trial. Fair enough, nothing unusual in any of those remarks.

Next he told the court that in a jury trial on a traffic case the jury would decide two things: (1) whether the motorist was or was not guilty and (2) the fine to be assessed. Then he informed those in attendance that should they select to go to trial and they lost, the court costs they would be assessed would include the overtime pay for any officers subpoenaed to appear as well as the jury fee.

It seems as if Missouri City has finally found a stick to beat folks into submission and discourage them from exercising their constitutional right to a trial by jury in any criminal matter. The Sixth Amendment affords criminal defendants compulsory process in any criminal proceeding and the Texas Code of Criminal Procedure outlines the manner in which a defendant may exercise that right.

If Missouri City really wants to prevent people from exercising their rights, maybe the city counsel should consider making all traffic offenses administrative matters. That way city prosecutors wouldn't have to worry about proving their cases beyond a reasonable doubt -- a hearing officer could be appointed to rubber-stamp the tickets and anyone wishing to challenge the word of the city lackey would be forced to appeal the decision to the municipal court where the city's burden would be a preponderance of the evidence.

Once again our rights are slowly eroding.

Madoff to spend the rest of his life behind bars

Bernie Madoff's sentence of 150 years (read: life) in prison may satisfy his victims' psychological need for revenge but it certainly won't get them their savings back.

According to prosecutors, Mr. Madoff swindled his investors out of some $170 billion over the course of the Ponzi scheme. In December, Madoff's books indicated a total of $65 billion was currently "invested."

Mr. Irving Picard, the trustee charged with winding down Mr. Madoff's affairs has thus far only been able to collect $1.2 billion to return to his victims.

Now, don't get me wrong, some sanction is required in this case. I just don't know if burying Mr. Madoff beneath the jail is it. With today's sentencing, the same folks whose "investments" paid for Mr. Madoff's lavish lifestyle will once again be paying to house him in prison.

Friday, June 26, 2009

Clear as mud

Over the past week details have begun to emerge about Harris County D.A. Pat Lykos' plan to offer pretrial diversion on first-time DWI offenders:
  • The candidate must be a true first offender (or at least someone who understands the importance of expunging those criminal records).
  • The DA's office will consider all first DWI offenders - even if there was an accident involved. Of course, the severity of the accident will be considered.
  • The DA will screen candidates for eligibility. Should the candidate be approved, an evaluation would be ordered. The exact way in which this evaluation would be conducted has yet to be decided.
  • The candidate must agree to a "punishment" as part of the contract. This "punishment" would be applied should the candidate fail to complete the program successfully.
  • The program would require the installation of an ignition interlock device (regardless of whether or not there was a breath test) for a minimum of six months.
  • The program itself would be for a period of one-to-two years, depending on the facts of the case. No criteria for determining the length of the program has been defined at this point.
  • All treatment programs would be paid for by the candidate. According to Ms. Lykos' office, the county will provide treatment for indigent candidates.
  • In the event that the candidate "violated" the terms of the agreement, the court will impose a punishment based on the "punishment schedule" that was set up as part of the candidate's entry into the program. Consequences would be "swift" and the candidate would waive his or her right to litigate the issue.
  • The candidate would have to agree to a one-year waiting period before he or she could ask the court for an expunction. That expunction would be the same as any other expunction -- all records related to the arrest and prosecution of the candidate would be destroyed. That is, except for DPS driving records. Any "DWI contact" would be forever part of the candidate's driving record.
As I have said before, the idea behind the program is a good one. There is something wrong with a system that allows a court to place a murderer on deferred adjudication but does not afford the same opportunity for a person charged with a first-time DWI. However, the program obviously was not fleshed out prior to Ms. Lykos' announcement and some of the provisions are very troublesome.

Anyone contemplating taking part in the program should still consult an experienced DWI attorney to discuss the benefits and the consequences of the program as they will be asked to waive some of their most basic rights under our Constitution.

Kent resigns, for real

Disgraced Federal judge and convicted felon, Samuel Kent, tendered his resignation from the bench effective June 30, 2009, on the eve of a trial in the Senate.

Earlier this month, upon being sentenced to 33 months in prison, Mr. Kent submitted his resignation from the bench effective June 1, 2010. Outraged, members of Congress put his impeachment on a fast track.

With Kent's resignation, the list of federal judges removed from office remains at seven:
  • John Pickering, Massachusetts - convicted and removed from office, 1804
  • West H. Humphreys, Tennessee - convicted and removed from office, 1862
  • Robert W. Archbald - convicted and removed from office, 1913
  • Halsted L. Ritter, Florida - convicted and removed from office, 1936
  • Harry E. Claiborne, Nevada - convicted and removed from office, 1986
  • Alcee L. Hastings, Florida - convicted and removed from office, 1989
  • Walter L. Nixon, Mississippi - convicted and removed from office, 1989

Thursday, June 25, 2009

Supreme Court upholds right of confrontation

The U.S. Supreme Court today strengthened a citizen's right to confront the witnesses against him in a criminal trial. In a 5-4 decision, the Court rebuked a Massachusetts law allowing the state to enter affidavits of laboratory analysts to prove up both the type and amount of a drug at trial in Melendez-Diaz v. Massachusets (No. 07-591, decided June 25, 2009).
"But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available." Melendez-Diaz v. Massachusetts.
Back in 2001, Boston police received a tip that, Thomas Wright, a Kmart employee was "engaged in suspicious activity" and set up surveillance in the Kmart parking lot. They saw Mr. Wright get into a car and waited until he returned. Upon exiting the car, the police arrested Mr. Wright and the two men in the car, one of whom was Luis Melendez-Diaz, after recovering four bags of what appeared to be cocaine from Mr. Wright.

At trial the state introduced the bags recovered from Mr. Wright and from the car along with "certificates of analysis" from forensic analysts. Mr. Melendez-Diaz objected on the grounds that he was not afforded his Sixth Amendment right to confront the witnesses against him because it was impossible to cross-examine a piece of paper. The court overruled his objection and Mr. Melendez-Diaz was convicted on drug charges. The state Court of Appeals upheld the trial court's ruling.

The Supreme Court, on the other hand, held that the certificates at issue were testimonial in nature and therefore subject to the dictates of its decision in Crawford v. Washington. The Court pointed out that the sole purpose of the affidavits under Massachusetts law was to provide "prima facie evidence of the composition, quantity and net weight" of the substance in question.
“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford v. Washington, 541 US 36, 61-62 (2004).
The practical effect of the Melendez-Diaz decision is that a citizen's right to confrontation is denied when the state is allowed to introduce any evidence that is "testimonial" in nature without affording the defendant the opportunity to cross-examine the testifying party. It would seem that the state's ability to introduce evidence at trial in the form of a business records affidavit has been greatly reduced.
“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony orits functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonablyexpect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would beavailable for use at a later trial.” - Crawford v. Washington, 541 US 36 (2004).
The fight to determine what is "testimonial" may have just begun.

Wednesday, June 24, 2009

No kidding

Are these signs really necessary on the front door of the Galveston County Courthouse?

Monday, June 22, 2009

Mexico to decriminalize minor drug possession

The Mexican legistlature has voted to decriminalize the possession of small amounts of drugs ranging from marijuana to heroin to methamphetamine. Supporters of the measure say that if Mexico is to rid itself of the large-scale drug violence sweeping the country, it must use its resources wisely - and that means going after the large-scale producers and distributors.

President Calderon supported the legislation much like his predecessor Vincente Fox - but President Fox caved in to pressure from the Bush Administration and withdrew his support for the measure.
"The important thing is . . . that consumers are not treated as criminals," said Rafael Ruiz Mena, secretary general of the National Institute of Penal Sciences. "It is a public health problem, not a penal problem."
Critics of the plan argue that decriminalizing drugs is giving in to the narcoterrorists who have left a bloody swath across the country over the past decade. These critics worry that Mexico will become a Latin American version of Amsterdam complete with tourists coming in to satisfy their drug habits.

The plan would remove criminal penalities for the possession of up to 5 grams of marijuana, 500 milligrams of cocaine, 50 milligrams of heroin and 40 milligrams of methamphetamine.

Calderon's initial proposal called for mandatory treatment for those who wished to avoid jail time but the bill was changed to call for treatment to be encouraged.

While I understand the need to make better use of limited resources, I also understand that drug trafficking is big business because of the demand for drugs and that any policy designed to eradicate illegal drugs must attack both the supply and demand sides of the equation.

White collar crime and punishment

R. Allen Stanford is just the latest in a long line of accused con men to face the prospect of prison time for his alleged misdeeds. He certainly won't be the last.

My question is whether it makes any sense to put a white collar criminal behind bars in the first place.

Mr. Stanford's alleged crimes include lying to investors and diverting investor funds to his own private bank accounts. Mr. Stanford's firm promised huge returns for those willing to invest in certificates of deposit in his Antigua bank. Of course, as I have pointed out before, it is a law of economics that the riskier the "investment," the higher the return.

Apparently no one questioned why a bank was paying exorbitant interest rates on certificates of deposit. Investors were blinded by greed and neglected to perform their due diligence before handing over large sums of cash to Mr. Stanford's company.

Now, if the allegations are true, I'm not saying that Mr. Stanford didn't do anything wrong. What I am saying is that locking him behind bars for the rest of his life doesn't do anything for the people he allegedly bilked.

I guess there's the lottery for the working poor; casinos for the middle class; and R. Allen Stanford, Bernie Madoff and company for the wealthy.

Sunday, June 21, 2009

The two-edged sword of social media in the courtroom

While looking over the newspaper this Father's Day morning, I stumbled across an Op/Ed piece in the Houston Chronicle about the intrusion of social media into the jury system. It isn't the first challenge the jury system has seen, but it may be the most pervasive.

Former assistant US attorney Thomas Melsheimer and Dallas County Civil District Judge Craig Smith remind us of four well-publicized incidents in which jurors brought social media into the jury room:

• During a major federal drug trial earlier this year, the trial came to a screeching halt when eight sitting jurors admitted to obtaining information about the case from the Internet.

• During a political corruption trial in Philadelphia, a juror provided a running commentary about the case on Facebook. The defense objected, but the trial was allowed to continue. The defendant, a former state senator, was convicted.

• In Arkansas, a juror used his cell phone to post Twitter updates during the trial. When revealed, he couldn’t understand what the fuss was about.

• Finally, when a juror in England could not decide on a case, she posted details about the trial and asked readers to vote on how she should rule.

Web 2.0 is in the courtroom and you disregard this reality at your own peril. You have to ask potential jurors if they use Facebook, Myspace or Twitter. You need to know if any of your potential panelists blog. You need to see what they've posted, what they read, who they're fans of, etc. You need to ask the court for additional time to conduct this research before you can make intelligent decisions on who to challenge for cause and on whom to exercise your strikes.

And while you're running checks on the panelists, don't forget to look up witnesses on the internet, too. And it's best to tell your client to lay off the social media until the case is over - you never know who else is lurking in cyberspace.

You also need to know who's in the courtroom watching the proceedings. Are they there to learn the ropes? Are they blogging? Are they "live" tweeting your trial?

While Web 2.0 has given us an infinite amount of useful information at our fingertips, it's also created a field of new dangers for defendants and attorneys alike.

Shirking personal responsibility

I'd like to send a special shout out to the jerk who scraped up the right rear bumper on my car at the Galveston County Courthouse on Friday. Now I don't care if someone bumps into the front or rear of my car while parallel parking on the street- we've all done and we've all had it done to us.

Common courtesy dictates that if you damage someone else's car you leave a note on the windshield with your contact informatoin. As my car is quite old I may have just disregarded the damage and moved on with my life. But now I'm pissed because someone wasn't man enough to own up to what they did.

Of course, given the setting, it shouldn't surprise me.

Saturday, June 20, 2009

Perry vetoes expunction bill

On Friday, Gov. Rick Perry vetoed a bill (HB 3481) that would have allowed a citizen charged with a crime to expunge all records from their criminal history if the state didn't file a (misdemeanor) information or present an indictment within 180 days of his arrest. The proposed law would also have allowed an individual to expunge all records for any offense which was dismissed, regardless of the statute of limitations for that offense, if the record shows there was no probable cause.

The perfectly coifed governor decried the proposed legislation, claiming that House Bill 3841 "precipitates an untenable injustice to victims and a hazard to public safety."
House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses. Current law provides that an individual is entitled to copies of their expunged records after the statute of limitations has expired. A prosecutor may contest the expunction by proving reasonable cause that the person will be charged, leading the prosecutor to reveal details of the investigation prior to its completion. Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely. Allowing a person to know the identities of witnesses or the nature of their evidence unnecessarily endangers both law enforcement and citizen witnesses prior to an indictment for murder, organized crime, sexual assaults and other serious offenses. House Bill No. 3481 precipitates an untenable injustice to victims and a hazard to public safety. - Gov. Perry's veto statement (June 19, 2009)
I say that if you can't gather enough evidence to file a criminal information in a misdemeanor case or to obtain an indictment within 180 days, then your case hasn't a leg on which to stand.

More troubling is the nonsensical requirement that the statute of limitations must expire before an individual is eligible to expunge all records of a prosecution in a case that was dismissed or reduced to a Class C deferred (special expense fee). The test should be, not whether a period of time has passed but, instead, whether the state is able to charge the individual with that particular offense.

In the case of a Class C deferred, the state may not refile the charge because jeopardy has attached. That individual should be eligible for an immediate expunction.

In the meantime, those pesky little charges will remain on a person's record, laid bare for all, from the curious to the police, to see.

How does that sit with you?

Friday, June 19, 2009

Now for something (completely) different

Although this is a blog dealing with criminal justice issues, this article has nothing to do with criminal law. On Thursday I tried a divorce case up in Bellville in Austin County. My client is a civilian Department of Defense contractor stationed in Iraq. He felt his marriage was damaged beyond repair and he wanted out.

His wife wasn't so inclined and we were unable to negotiate any type of settlement and were left with no alternative but to try the case. My client's wife hired an attorney who practiced in and around Bellville.

I had a bit of trepidation and feared getting "home-towned" at trial, but my client would not budge on the issue of settlement.

To make a long story short, we didn't get the short end of the stick. My client was very happy with the judge's decision and we both walked out of the courthouse with smiles on our faces.

For me, after months of fighting rear-guard actions in criminal court, it was a wonderful feeling to come out on the winning end of a case. The drive back home didn't seem quite so long as it did on the way out earlier in the day. After feeling worn-out and tired all week long, it was as if I had received a massive jolt of energy Thursday afternoon.

House votes to impeach Kent in record time

Disgraced federal judge and convicted felon Samuel Kent found out just how far he's fallen since pleading guilty to obstruction of justice charges. The House voted to approve four articles of impeachment in less than 30 minutes, with nary a soul speaking out for the so-called Emperor of Galveston.

Kent now becomes only the 14th federal judge to have been impeached since 1803. The articles of impeachment (indictment) now move to the Senate for a trial on the merits. Should two-thirds of the Senate vote to convict, Kent will be removed from office long before his hand-picked resignation date of June 1, 2010.

Wednesday, June 17, 2009

Legislating thought

US Attorney General Eric Holder said new hate crimes legislation was necessary to protect us from "violence masquerading as political activism."

Holder cited the recent killings of a young soldier in Little Rock, an abortion provider in Kansas City and a guard at the Holocaust Museum in Washington, D.C. during his address.
"We will not tolerate murder, or the threat of violence, masquerading as political activism. So let me be clear. The Justice Department will use every tool at its disposal to protect the rights ensured under our Constitution." -- Eric Holder, US Attorney General
There are a number of problems with Mr. Holder's call for more federal criminal legislation. First, every state has murder statutes on their books - where an act violates a state criminal statute, there is no need for a (redundant) federal statute. Second, we have this little thing called the First Amendment that protects speech and thought. The protections aren't absolute, but the Founding Fathers believed our society would be a tolerant society and that a man shouldn't be punished because he thought differently that his neighbor.

Most criminal acts require both a bad act and intent. The elements of murder include the act of killing another along with the intent either to kill the person or to engage in the conduct that led to that person's death. The law doesn't, nor should it, care whether the actor killed the victim because of skin color, religion, sexual orientation or political belief.
Holder said that to stop such violence, Congress should pass an updated version of hate crimes legislation in order to more effectively prosecute those who commit violent attacks based on gender, disability or sexual orientation.
Freedom of expression means that we are free to believe whatever we wish to believe - no matter how popular, or unpopular, it may be. The extremists, bigots, racists and haters will be marginalized in the full light of day - just as cockroaches run when the lights come on.

If the men who killed the returning soldier, the abortion provider and the museum guard had the intent to kill their targets and did, indeed, kill them, then they committed murder -- regardless of their attitudes or ideologies.

If we allow the Thought Police to gain a larger foothold in our criminal justice system, how long until we begin prosecuting people solely because we don't agree with their beliefs? How long until we build our own gulags?

Tuesday, June 16, 2009

Cleveland Browns' star pleads guilty to DUI manslaughter

Cleveland Browns' wide receiver Donte Stallworth today pled guilty to DUI manslaughter in a Miami-Dade County court this morning. As part of his plea agreement, Mr. Stallworth will serve 30 days in the county jail followed by two years of house arrest and eight years of probation. In addition, Mr. Stallworth will face a lifetime suspension of his driver's license; though he may petition the court for an occupational license after five years. He must also perform 1,000 hours of community service.

Mr. Stallworth struck and killed Mario Reyes on the morning of March 14, 2009 after a night of drinking. Mr. Stallworth's blood alcohol concentration was .126, well above Florida's legal limit of .08.

Mr. Stallworth also reached a confidential settlement agreement with Mr. Reyes' family to avoid further civil litigation. He faced up to 15 years in prison.

In Texas, DWI manslaughter is a second-degree felony and carries a sentence of from 2 to 20 years in prison. While probation is permitted, the statute requires a minimum of 120 days in jail as a condition.

Using the HGN test to your advantage

"I am going to check your eyes. Keep your head still and follow this stimulus with your eyes only. Keep following the stimulus with your eyes until I tell you to stop."

So begins the administration of the horizontal gaze nystagmus (HGN) test to the suspected drunk driver. The officer then begins the magical process of waving a pen back and forth in front of the driver's eyes to determine if he or she consumed any alcohol. Nevermind that, by that point, the driver has usually admitted to drinking "a couple" of beers or mixed drinks.

But instead of looking for signs of impairment, let's look for some signs that our driver is not impaired. Did the driver keep his or her head still? Did the driver follow the movement of the pen with his or her eyes? Was the driver standing still?

In order for the officer to administer the "test" correctly, he must be able to look into the driver's eyes. In order for him to look into the driver's eyes, the driver must be standing still and not swaying. The stance the driver takes during this test is the most normal stance he or she will take during the administration of the standardized field sobriety tests (or, as I prefer to call them, the police coordination exercises).

In order to "take" the pen and eye test, the driver must exhibit some fine motor skills. He or she must stand still and, without moving his or her head, follow an object being passed in front of the eyes. The driver must also understand the directions he or she was given by the officer - a test of mental faculties.

Think about it, if the driver can't stand still, can't keep his head still, can't follow the pen with his eyes and can't follow directions, the officer can't complete the test.

Therefore, the very fact that the officer completed the administration of the HGN test demonstrates that the driver still had the use of his or her mental and physical faculties.

Passing before our eyes

I find it a bit ironic that the most "scientifically valid" standardized field sobriety test is also the one that jurors are the least concerned about. I am, of course talking about the horizontal gaze nystagmus (HGN) test.

At trial the prosecutor and arresting officer will do their little "dog and pony show" about how the driver's jerky eyes indicates that he must be intoxicated. The officer will testify (usually) that he found all six clues when administering the test and that the only logical conclusion is that the driver was intoxicated at the time he was driving.

Of course if you take out a stop watch while viewing the video it becomes evidence quite quickly that the officer didn't administer the test correctly. Either he moved the pen too quickly or too slowly in front of the driver's eyes or he held the pen too high or too low when making the passes.

Do you file a pretrial motion to suppress the test, file a motion in limine requesting the opportunity to take the officer on voir dire before he testifies about the HGN test, do you conduct a vigorous cross examination of the officer on his mistakes or do you gloss over the test and move on to other topics?

Here's a little most jurisdictions when the jury watches the video all they see is your client standing still with the officer waving a pen in front of your client's face. The jurors don't see your client's eyes jerking. In fact, you can often score points with the jury by asking the officer if your client stood still, didn't sway and didn't move his head back and forth.

Jurors are far more concerned with how your client did on the Walk and Turn and One Leg Stand tests because that's when they get to see if your client "looks drunk." Those are the tests to attack hard and often.

I tend to ask a few questions about the "pen and eye test" and then move on to more fertile ground -- unless the officer butchered the test to such a degree that it casts his entire investigation into question.

Saturday, June 13, 2009

Tarrant County District Attorney may be removed from death row appeal

The Tarrant County District Attorney's Office is facing the prospect of being removed from the death row appeal of Chelsea Richardson due to allegations of prosecutorial misconduct.

Ms. Richardson was convicted in 2005 of capital murder for the killing of her boyfriend's parents. (Her boyfriend and another man are currently serving life sentences for the murders.)

Allegations have arisen that Mike Parrish, the prosecutor who tried the case, withheld Brady material from Ms. Richardson's attorney and interfered with the attorney-client privilege by obtaining information from a member of Ms. Richardson's attorney's trial team.

Bob Ford, Ms. Richardson's appellate attorney, has alleged that Mr. Parrish failed to turn over a psychological report that was favorable to the defense.

This isn't the first time that Mr. Parrish, who has since left the Tarrant County D.A.'s Office, has been in hot water for alleged misconduct. Back in December the Texas Court of Criminal Appeals reversed the capital murder conviction of Michael Toney because Mr. Parrish failed to turn over at least 14 documents that contained exculpatory evidence. The Attorney General's Office is handling the retrial because the Tarrant County DA recused his office from the matter.

Visiting State District Judge Steven Herod of Eastlands County will notify the attorneys of his ruling later.

Friday, June 12, 2009

Government declares war on online poker players

If you play online poker you might have a bit of a problem withdrawing your winnings thanks to los federales. The U.S. Attorney for the Southern District of New York has ordered three banks (Citibank, Wells Fargo, Goldwater Bank and Alliance Bank of Arizona) to freeze the accounts of payment processors who handle the winnings for online players.

Los federales informed Alliance Bank that accounts held by Allied Systems, Inc. (a payment processor) were being seized on the grounds that the accounts served to launder online poker winnings and that exigent circumstances existed that justified the warrantless seizure.

David, an online player from Maryland, won his way into the World Series of Poker Main Event by winning an online poker tournament. But, when he tried to cash the check he received, it bounced.
"It's not like the government went after money that the site made, instead they seized money that belonged to me," David said. "There is no law that restricts citizens from recovering money."
The government's action has affected some 27,000 online poker players.

Current federal law makes it illegal for the operators of online gambling sites to accept money from bettors -- but it is not illegal for an individual to place a bet online.

The funds seized by los federales belonged to the individuals who placed the bets, not to the online gambling sites or to the payment processors for those sites. The money seized by los federales was not the result of any illegal activity on the part of the recipient of those funds.

The acts of los federales amount to an illegal search and seizure affecting some 27,000 Americans who did not break the law. The players themselves broke no law in sitting down to play online poker.

What we have is the federal government enacting legislation that it cannot enforce against entities that are not citizens (whether they be individuals or corporations). And so, just as the Chinese government represses its own citizens because it can't control what people outside China say or do, the U.S. government reaches out and steals money from our fellow citizens.

Thursday, June 11, 2009

Disgraced judge to report to prison on Monday

Disgraced federal judge and convicted felon Samuel Kent's life is over as he knows it. On Monday he is to report to the Devens Federal Medical Center outside Boston, Massachusetts, to begin serving his 33-month sentence for obstruction of justice.

He reports to prison still receiving his salary of $174,000, though that is expected to change in the next few months as impeachment proceedings have been "fast-tracked." Just yesterday, the House Judiciary Committee voted 28-0 to refer the four articles of impeachment to the full House of Representatives.

The House is expected to vote in favor of indictment before the 4th of July and the Senate is expected to decide Kent's fate before its August recess.

Some helpful advice from a public defender

This is from a posting on Craig's List that's been forwarded around the internet. If you're in the practice you'll get a kick out of it; if you're not in the practice, please don't take offense.
First, let me say I love my job and it is a privilege to work for my clients. I wish I could do more for them. That being said, there are a few things that need to be discussed.

You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely serious when they say your statements can and will be used against you. There’s just no need to babble on like it’s a drink and dial session. They are just pretending to like you and be interested in you.

When you come to court, consider your dress. If you’re charged with a DUI, don’t wear a Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a marijuana leaf on it or a t-shirt with the “UniBonger” on it. Long sleeves are very nice for covering tattoos and track marks. Try not to be visibly drunk when you show up.

Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing. Try not to cough and spit on my while you speak and further transmit your strep, flu, and hepatitis A through Z.

I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or technicality for you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13 year old. By the time we meet, much of your fate has been sealed, so don’t be too surprised by your limited options and that I’m the one telling you about them.

Don’t think you’ll improve my interest in your case by yelling at me, telling me I’m not doing anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire me, it makes me hate you and want to work with you even less.

It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.

For the guys: Don’t think I’m amused when you flirt or offer to “do me.” You can’t successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your performance in other areas is just as spectacular, and the thought of your shriveled unwashed body near me makes me want to kill you and then myself.

For the girls: I know your life is rougher than mine and you have no resources. I’m not going to insult you by suggesting you leave your abusive pimp/boyfriend, that you stop taking meth, or that your stop stealing shit. I do wish you’d stop beating the crap out of your kids and leaving your needles out for them to play with because you aren’t allowing them to have a life that is any better than yours.

For the morons: Your second grade teacher was right – neatness counts. Just clean up! When you rob the store, don’t leave your wallet. When you drive into the front of the bank, don’t leave the front license plate. When you rape/assault/rob a woman on the street, don’t leave behind your cell phone. After you abuse your girlfriend, don’t leave a note saying that you’re sorry.

If you are being chased by the cops and you have dope in your pocket – dump it. These cops are not geniuses. They are out of shape and want to go to Krispy Kreme and most of all go home. They will not scour the woods or the streets for your 2 grams of meth. But they will check your pockets, idiot. 2 grams is not worth six months of jail.

Don’t be offended and say you were harassed because the security was following you all over the store. Girl, you were wearing an electronic ankle bracelet with your mini skirt. And you were stealing. That’s not harassment, that’s good store security.

And those kids you churn out: how is it possible? You’re out there breeding like feral cats. What exactly is the attraction of having sex with other meth addicts? You are lacking in the most basic aspects of hygiene, deathly pale, greasy, grey-toothed, twitchy and covered with open sores. How can you be having sex? You make my baby-whoring crack head clients look positively radiant by comparison.

"I didn't put it all the way in." Not a defense.

"All the money is gone now." Not a defense

"The bitch deserved it." Not a defense.

"But that dope was so stepped on, I barely got high." Not a defense.

"She didn't look thirteen." Possibly a defense; it depends.

"She didn't look six." Never a defense, you just need to die.

For those rare clients that say thank-you, leave a voice mail, send a card or flowers, you are very welcome. I keep them all, and they keep me going more than my pitiful COLA increase.

For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There's nothing wrong with any of my clients that could not have been fixed with money or the presence of at least one caring adult in their lives. But that window has closed, and that loss diminishes us all.

So you couldn't outrun a bike?

Wednesday, June 10, 2009

Beware the song of the Sirens

I had an interesting conversation this afternoon with a gentleman (and I use that term rather loosely) we will call Attorney X.

Attorney X is someone I ran into a the municipal courthouse a couple of months back who asked me to take his kid's ticket case on an IOU. Needless to say I declined his generous offer of employment.

Attorney X claimed to work for one of the city's white-shoe firms as the "fixer." He asked for my card and said that this firm occasionally picked up some criminal cases and needed someone to handle them. I walked away figuring I'd never hear from Attorney X again.

This afternoon when I got into the office I listened to the voice mail messages that had accumulated while I was in court this morning. There was one message asking me what it would cost to hire me to plead out a case. The caller didn't leave a name.

I called the number and, guess who answered? Attorney X.

He told me his firm had been using another attorney to handle their criminal matters but that he had started to get too "uppity" and was dragging cases out too long. He complained that this other attorney (whom I hold in high esteem, by the way) seemed to be "too tight" with the judges and prosecutors. Attorney X told me he had this kid who picked up a possession case and that they could get a letter from a doctor about his need for the drugs found in his possession. He asked me what I would charge to plead the kid out on Friday.

I told Attorney X that I needed to talk to the kid before I could agree to anything. He then called the kid on three-way so I could talk to him.

I found out this was the kid's second court date - he had been reset to hire an attorney. I found out the kid had a history of possession cases. I asked the kid what outcome he was looking for in this case and he told me he did not want to be put on probation.

Attorney X then asked how much to plead the case out. I told Attorney X that I didn't roll that way. I quoted him my regular fee on that type of case and told him that I hadn't seen an offense report and that there might be legal issues we could exploit.

All of a sudden Attorney X announces that the conversation was over and hung up.

The lesson of this? It's all too easy to be seduced by a bit of cash to compromise your principles. Just remember, at the end of the day, those principles are all you've got.

A pandemic plague sweeping over Harris County

So Harris County is in the midst of a "pandemic plague" according to Harris County District Attorney Pat Lykos. What is this plague you might ask? Is it swine flu? Is it meningitis? Is it encephalitis?

No, according to Ms. Lykos, it's driving while intoxicated.


1.(of a disease) prevalent throughout an entire country, continent, or the whole world; epidemic over a large area.
2.general; universal: pandemic fear of atomic war.
3.a pandemic disease.


[pleyg] noun, verb, plagued,pla⋅guing.
–noun epidemic disease that causes high mortality; pestilence. infectious, epidemic disease caused by a bacterium,Yersinia pestis, characterized by fever, chills, and prostration, transmitted to humans from rats by means of the bites of fleas. Compare bubonic plague, pneumonic plague, septicemic plague.
3.any widespread affliction, calamity, or evil, esp. one regarded as a direct punishment by God: a plague of war and desolation.
4.any cause of trouble, annoyance, or vexation: Uninvited guests are a plague.
But this is where the situation beings to become surreal. On the one hand, as Ms. Lykos proclaims that the situation is getting out of control, she advocates, on the other hand, a program offering pretrial diversion for first-time DWI offenders.
Lykos hopes to lower DWI rates by offering first-time offenders a pretrial probation term that avoids a conviction, in hopes of getting more into treatment. In recent years, most of those charged with drunken driving in Harris County have pleaded guilty, served jail time and paid a fine, rather than be placed on supervised probation where alcohol education and treatment assessment is mandatory. Probation for DWI fell from 4,700 cases in 2000 to 2,150 in 2007, according to the district attorney’s office.
It's no secret why probation for DWI offenders has fallen over the last 10 years -- why would anyone voluntarily subject themselves to county supervision for a period of one to two years when they have the option of paying a fine and calling it a day? There are some judges who will probate the mandatory license suspension if a defendant accepts probation in exchange for a guilty plea, but most will suspend your license.

In fact, you can argue, that an attorney might be committing malpractice by advising a client to accept probation instead of time served and a fine. Now I understand that every case is different and time served and a fine is not always available for clients with multiple DWI's or who were involved in accidents.

I would argue that the reason behind 10,000 DWI arrests a year in Harris County is not because there are that many people out on the road breaking the law, but because there is a financial incentive to arrest motorists for DWI.
Houston’s DWI task force receives about $480,000 a year in grants to pay overtime for officers to catch and process drunken drivers, said task force member Don Egdorf, also HPD’s liaison with the district attorney’s vehicular crimes unit. “I don’t know if there are more drunks on the streets, but there are more officers looking for the drunks so there are more of them getting picked up,” he said.
As my colleague, Troy McKinney, points out, in Harris County, if the officer thinks you're drinking and driving - which is not against the law in Texas - you're going to jail. The attitude among law enforcement is to let the courts take care of the carnage.

Tuesday, June 9, 2009

Time running out for disgraced federal judge

Today a panel of the House Judiciary Committee voted 10-0 to refer four articles of impeachment against disgraced federal judge and convicted felon Samuel Kent to the full committee. The full committee is expected to refer the articles to the full House of Representatives before July 4.

Two of the panel’s charges accused Kent of conduct that was “incompatible with the trust and confidence placed in him as a judge” in connection with repeated predatory assaults on case manager Cathy McBroom, 50, and Donna Wilkerson, 45.

A third charge accused Kent of having “corruptly obstructed, influenced or impeded an official proceeding” looking into the allegations.

The fourth charge accused him of making “material false and misleading statements about the nature and extent of his nonconsensual sexual contact” with the two courtroom employees.

It took the panel 20 minutes to vote the articles to the full committee. Congress hopes to complete the impeachment process and convict Kent quickly to prevent him from collecting his salary and benefits while in prison.

The Senate is expected to try the case before its August recess.

Feds concerned about healthcare and violence at the Harris County Jail

The Civil Rights Division of the Department of Justice didn't have much good to say about the Harris County Jail in their report issued on June 4, 2009. The county came under heavy criticism for the inadequate level of healthcare provided and for use of excessive force against detainees. The report noted that the Department had "serious concerns about the use of force at the jail."

The report pointed out the following deficiencies:
  • The jail failed "to provide consistent and adequate care for detainees with serious chronic medical conditions."
  • The jail provides inadequate housing for detainees with mental health issues as well as inadequate access to mental health care.
  • The jail "lacks a minimally adequate system for deterring excessive use of force and an adequate plan for a large and sometimes violent detainee population
  • The jail lacks "certain necessary structured maintenance, sanitation and fire safety programs."

Harris Co. jail report height="500" width="100%" rel="media:document" resource="" xmlns:media="" xmlns:dc="" > value=""> Harris Co. jail report editorial_online5191

On the plus side, however, the Department was quite pleased that the county provided written policies and procedures.

Monday, June 8, 2009

Isn't that putting the cart before the horse?

I spoke to a prosecutor down in Galveston earlier today about a new DWI case I picked up last week. I was interested in finding out what she had in her file because I understood that the prosecutor offered my client a deal in exchange for a guilty plea - without having as much as an offense report in the file.

Not only was there no offense report in the prosecutor's file; there was no video, there was none of the paperwork an arresting officer is required to file with the Texas Department of Public Safety in a DWI case and there were no results from the blood test performed on my client.

Now I understand prosecutors are under pressure to obtain convictions and close cases, but asking a person to plead guilty to a criminal offense without being able to review any of the evidence against her is obscene.

I would also contend that it violates Rule 3.09 of the Texas Disciplinary Rules of Professional Conduct:
Rule 3.09 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;
(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights;
(d) 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 to 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; and
(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.
Without any offense report, or any other report for that matter, in her file, the prosecutor cannot with any certainty state that she is not prosecuting a case that is not supported by probable cause. This type of behavior by attorneys representing the State of Texas in criminal matters is untolerable and points out why hiring an attorney is the first thing a person accused of committing a crime should do.