These are the musings, ramblings, rantings and observations of Houston DWI Attorney Paul B. Kennedy on DWI defense, general criminal defense, philosophy and whatever else tickles his fancy.
"When people are arrested for an alcohol-related offense, it needs to show up on their record," said Austin PD Commander of Highway Enforcement Jason Dusterhoft. "Our No. 1 goal is to keep drunk drivers off the road and keep them from killing people. DWAI would be a way for us to work toward eliminating repeat offenders.
No, Mr. Dusterhoft, I must disagree. If the motorist did not commit an offense, then the arrest shouldn't show on their record. Mr. Dusterhoft apparently believes that the police are never wrong when it comes to arresting motorists for allegedly driving drunk.
If you read the NHTSA training manual you will find that if a motorist exhibits four or more "clues" on the pen-and-eye test there is an almost 80% chance that the motorist has an alcohol concentration of .08 or higher. Of course that means that almost 20% of the time the voodoo test is wrong.
NHTSA claims the walk and turn exercise is accurate in predicting an alcohol concentration of .08 or higher 68% of the time and that the one leg stand gets it right 65% of the time. By my math, that means the coordination exercises are wrong about one time in three.
But here's the rub for folks like Mr. Acevedo and Mr. Dusterhoft; what happens if an officer arrests a motorist based on his performance of the roadside coordination exercises and the motorists proceeds to blow less than .08 on the breath test machine?
Might it mean that the officer was wrong in arresting the motorist? Might it mean that NHTSA's coordination exercises aren't accurate predictors of one's alcohol concentration?
The litigation before the court seems to have little actual relevance as both the City of Houston (the plaintiff) and ATS (the defendant) are seeking to void the referendum.
The only real issue, it seems to me, is whether or not the city is in breach of its contract with ATS. If following the will of the populace means that the city is in breach of the contract, then shame on the people who obligated the city in the first place. If that be the case then Mayor Parker needs to negotiate a termination of the contract with ACS so that everyone can go about their merry way. Regardless of whether the vote means the city is in breach, the cameras need to come down.
Maybe the contract excuses noncompliance as the result of an Act of God. Since the GOP and their religious minions swept the day in Harris County, I think the city might just have an argument that its cancellation of the contract isn't a breach.
On my recent trip to the Valley we drove through the town of Goliad. For those of you who weren't schooled on the legends of Texas, Goliad was the site of the bloodiest massacre of the Texas Revolution. James Fannin and his men were forced to surrender upon the open plain after fighting with Mexican forces. After learning of Fannin's surrender, Santa Anna sent word to Goliad that the Texas soldiers were to be executed.
The cries of "Remember the Alamo!" and "Remember Goliad!" rang loud along the San Jacinto River (just east of modern day Houston) just a month later when Sam Houston lead the Texas army to victory.
The Goliad County Courthouse was built in the Second Empire style in 1894. The original clock tower and turrets were removed after a hurricane in 1942. They were replaced in 2003.
There was no long appeals process for death sentences back in the 19th century. Immediately after being convicted of a capital crime, the defendant was brought outside and hung from this oak tree.
This is the downstairs lobby of the courthouse. The tile work on the floor is very intricate.
Cuyahoga County (OH) prosecutor Bill Mason really, really wants to win. He wants to win so much that he has neglected the first ethical rule of a prosecutor -- to see that justice is done.
“I see myself as someone holding people accountable for their actions.” Cuyahoga County Prosecutor Bill Mason
Over the past ten years, Mr. Mason's office has tried 6,891 felony cases. Out of those cases, county judges acquitted 341 defendants in the middle of trial. Why? Because the prosecutor's office wasn't able to prove their was even probable cause to arrest the defendants.
Mr. Mason came into office in 1999 as the reformer. He said that when he took over the office too many felony cases were being plead out by inexperienced prosecutors. His solution? Take away the authority for the courtroom prosecutors to work out their cases. All pleas would have to go through a handful of supervisors who had to answer to Mr. Mason.
U.S. District Judge Kate O’Malley wrote that Mason’s office showed a “startling indifference” to the defendant’s rights and then bluntly reminded Mason about his duty as prosecutor by quoting U.S. Attorney General Eric Holder:
“It’s the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.”
But it’s not, O’Malley wrote: A prosecutor’s job is to seek justice.
Stripping away the power to resolve cases in the courtroom reduces prosecutors to clerks. If you don't trust your people in the courtroom to make good decisions, then you've got some major issues. These are the folks you're relying upon to try cases -- if they're competent to try the case, then they must be competent enough to know whether a case needs to go to trial.
For all of its faults, our criminal (in)justice system does have one saving grace -- trial by jury. I am thankful I live in a country in which we have the right to have a jury of our peers decide our fate after a careful consideration of the evidence presented to them.
As Atticus Finch told the jury during his closing argument in To Kill a Mockingbird, the jury system is the great leveler of men in this country. No matter our station in life, no matter where we were born, no matter where we live and no matter what we do for a living, we all stand before the court equal. We all stand before a jury of our peers who will decide our fate.
To begin with, this case should never have come to trial. The State has not produced one iota of medical evidence that the crime Tom Robinson is charged with ever took place. It has relied instead upon the testimony of two witnesses whose evidence has not only been called into serious question on cross examination, but has been flatly contradicted by the defendant. Now there is circumstantial evidence to indicate that Mayella Ewell was beaten savagely by someone who led, almost exclusively, with his left. And Tom Robinson now sits before you, having taken “The Oath” with the only good hand he possesses – his right.
I have nothing but pity in my heart for the Chief Witness for the State. She is the victim of cruel poverty and ignorance. But, my pity does not extend so far as to her putting a man’s life at stake, which she has done in an effort to get rid of her own guilt. Now I say “guilt,” gentlemen, because it was guilt that motivated her. She’s committed no crime. She has merely broken a rigid and time-honoured code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. She must destroy the evidence of her offense. But, what was the evidence of her offense? Tom Robinson, a human being. She must put Tom Robinson away from her. Tom Robinson was to her a daily reminder of what she did.
Now what did she do? She tempted a negro. She was white and she tempted a negro. She did something that in our society is unspeakable: She kissed a black man. Not an old uncle, but a strong, young negro man. No code mattered to her before she broke it, but it came crashing down on her afterwards.
The witnesses for the State, with the exception of the sheriff of Lincoln County, have presented themselves to you gentlemen – to this Court – in the cynical confidence that their testimony would not be doubted; confident that you gentlemen would go along with them on the assumption, the evil assumption, that all negroes lie; all negroes are basically immoral beings; all negro men are not to be trusted around our women, an assumption that one associates with minds of their calibre, and which is in itself, gentlemen, a lie – which I do not need to point out to you.
And so, a quiet, humble, respectable negro, who has had the unmitigated TEMERITY to feel sorry for a white woman, has had to put his word against two white people. The defendant is not guilty. But somebody in this courtroom is.
Now, gentlemen, in this country our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living, working reality!
Now I am confident that you gentlemen will review without passion the evidence that you have heard, come to a decision, and restore this man to his family.
In the name of God, do your duty. In the name of God, believe Tom Robinson.
It starts off so benignly. Most folks don't even notice it. Most of those who do shrug it off like it's no big deal. The few who raise a stink are given dirty looks and called kooks. Then it passes. Another little bit of our reasonable expectation of privacy cast aside like yesterday's trash. Then the cycle repeats itself.
First there was the drastic overreaction after 9/11. I practice criminal law. Guess what? If the bad guys want to do something, they are going to find a way to do it -- regardless of how many obstacles you erect. When it comes to security, we are always fighting yesterday's threat.
Increased security measures at the airports led to an arms race among cities and counties to show how important they were. Metal detectors went up in courtrooms in counties big and small -- even in traffic court. If the machines weren't inconveniencing enough folks, the powers-that-be turned up the sensitivity so that people coming to conduct business at the courthouse had to take off their belts and shoes.
Angela Hellenbrand received a quick pat down Tuesday by security guard Mike Couts at the Castle Rock courthouse about 30 miles south of Denver. A guard in another room monitoring the full-body scans alerted Couts to an object in Hellenbrand's left rear pocket. It was the paper backing of a "Junior Deputy Sheriff" sticker that one of the guards had given her two young boys.
"It's OK," Hellenbrand said. "It's how they do security here. It's my second time through."
I wonder if Ms. Hellenbrand will have such cheery thoughts after the government has legislated away our reasonable expectation of privacy outside the home.My wife thinks I'm Mr. Crankypants when I tell people I refuse to fly unless I have no other choice. She's seemingly unconcerned about the erosion of our Fourth Amendment rights.
Maybe it's because she grew up in Canada and viewed government as a paternalistic institution designed to help people. I, on the other hand, grew up in Texas and understand that the reason we have a Bill of Rights is to protect ourselves from the power of the state.
The top judge in England and Wales, the Lord Chief Justice, Lord Judge (I'm not making this up) has added his voice to those concerned about the risks social media poses to the jury system.
"We cannot stop people tweeting, but if jurors look at such material, the risks to the fairness of the trial will be very serious, and ultimately the openness of the trial process on which we all rely, would be damaged." -- Lord Judge
He noted during his lecture that some jurors in a rape case used the internet to conduct research during the trial. He also pointed out an incident in Manchester where a judge had to dismiss the jury and restart the trial because a juror posted details of the trial on her Facebook page and asked her friends "did he do it?"
"If it is not addressed, the misuse of the internet represents a threat to the jury system which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge." -- Lord Judge
Jurors know that what they see and hear in the courtroom is not the whole truth. The rules of evidence under which we operate serve to keep information away from jurors. If you have a multi-day trial, you can be assured that your jurors are going to do some research of their own on the internet - despite the admonitions of the judge. Is explicitly banning the use of social media by jurors a Luddite reaction or the only way to preserve the jury system?
The larger question isn't whether social media will make the jury system obsolete, but whether it will change our traditional view of trials. Isn't the notion that we can bring in six or twelve disinterested people who can listen to testimony and decide the fate of someone based solely upon that evidence a bit naive? In every arena outside the courtroom we strive to gain as much knowledge about a subject as possible. Imperfect information is the enemy of efficiency - yet we are asking jurors to decide a person's fate based on imperfect information.
If you choose to ignore this reality and bury your head in the sand, you do so at your own peril.
Law enforcement agencies in and around Plantersville, Texas have announced a crackdown aimed at suspected drunk drivers leaving the Texas Renaissance Festival the last two weekends in November. This festival, that celebrates an era that has absolutely nothing to do with the history of this great state, has slowly morphed into a beast attempting to eat the town of Plantersville.
A crowd of folks who play Dungeons & Dragons and World of Warcraft and walk around talking in lousy British accents would seem fairly harmless provided I'm not forced to attend; but the local constabulary has decided that the festival's attendees make the roads in and around the hamlet a bit too hazardous for the local folk.
To catch the drunken drivers, the number of patrol officers on this task will increase from 20 to 30. Roads with extra patrols will include Texas 249, Texas 105, FM 1774, FM 1488 and FM 1486.
"We will not have random security checkpoints for vehicles," Diepraam said. "but we will be stopping anyone who violates traffic laws."
Two BAT (Breath, Alcohol and Transport) vans from Houston and Montgomery County will be available to offer Breathalyzer tests on the spot. If the driver refuses, authorities will seek a search warrant and then transport the driver to Magnolia's police station where a nurse will be on standby to do a blood test.
And so, much as was the case with the Salem witch trials, the motorist who is pulled over for a random traffic violation will be subjected to trial by deed with the officer's unscientific opinion being the linchpin upon which his constitutional rights rest.
Oh, the Tenth Amendment is alive and well. Y'all remember the Tenth Amendment, right? That's the one that says
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
You also remember the separation of powers doctrine. You know, the one that says the legislature enacts the law, the executive enforces the law and the courts rule on the law.
The last time I checked, it was up to the state legislature to amend or change the penal code. It's the state legislature's job to decide what is and what isn't against the law.
We have folks jumping up and down and cheering for those who espouse federalism, "states' rights," and limited government. But now we have the National Transportation Safety Board (NTSB) entering the fray with its "Most Wanted List" and pressuring state governments to change and amend state penal codes. That's right, the federal government is putting pressure on the states to bend to the will of los federales. More than than, the executive branch of the federal government is putting the screws to state legislatures to fall into line.
Enact legislation to reduce crashes involving repeat offenders who drink large amounts of alcohol, including:
Frequent, statewide sobriety checkpoints.
More effective measures (sanctions/treatment) for first time arrests with high blood alcohol concentration and repeat offenders.
Zero blood alcohol requirement for those already convicted of driving while intoxicated.
Administrative license revocation for refusing to take or failing an evidential test for alcohol.
Vehicle sanctions for DWI offenders to separate drinking from driving.
Elimination of plea-bargaining DWI offenses and programs that divert offenders and purge offense records.
DWI offense records retention for at least 10 years to identify repeat offenders.
Special sanction court-based programs such as DWI courts for hard core DWI offenders
Let's just go down the list, shall we?
Sobriety checkpoints have been declared unconstitutional in Texas. Why? Because the police must have reasonable suspicion or probable cause to pull you over. Sobriety checkpoints would allow the police to harass motorists without reason.
As for punishments, the legislature has determined that a first-time DWI merits a sentence of up to 6 months in the county jail and a fine not to exceed $2,000. A subsequent offense can get you 12 months in the county jail and a fine of up to $4,000. If you still haven't learned your lesson, a third offense is a third degree felony and will get you a bed in the state penitentiary. As for probation, it's up to the court to impose whatever conditions it feels are appropriate when suspending a sentence.
Zero blood alcohol? Last time I checked, it was legal for an adult in Texas to consume alcoholic beverages. The last time I checked, it's legal to drive so long as you haven't lost the normal use of your mental or physical faculties due to the consumption of alcohol. Need I remind anyone, Prohibition didn't work the first time.
The license suspension for refusing or failing a breath test - let's just talk about double jeopardy, collateral estoppel and the Fifth Amendment. The entire ALR program in Texas is just a way to coerce motorists to blow into the state's breath test machine so the state can obtain evidence it wouldn't have any other way of obtaining. And we already have vampires and their black-robed friends just waiting to take your blood if you decide to exercise your right to refuse.
The NTSB wants to stop prosecutors from offering pretrial diversions or "reductions" in DWI cases. Here we go -- Washington meddling in the affairs of local jurisdictions. There are any number of reasons why a pretrial diversion in a DWI case might be the right solution. There are also good reasons why some DWI's are "reduced" to obstruction of a highway or reckless driving. In the name of dragging everyone into the criminal (in)justice system, the government hasn't given a second thought to the consequences that follow a criminal conviction.
And my favorite, the DWI court - a facade of justice where defense attorneys are prodded to become a member of "the team" and sell their client out. Either treat DWI like a criminal offense and let the criminal (in)justice system take care of it, or treat it as a medical condition and let the doctors treat the disease. The criminal (in)justice system is not equipped to be a social service provider. The purpose of the criminal courts is to determine whether an individual violated the laws of the state, not to prescribe treatment for a medical condition.
If you like what Bret Ligon, Warren Diepraam and their crew are doing up in Montgomery County, jump aboard for the ride.
Illinois law makes it illegal for a person to use an "eavesdropping device" to secretly record a conversation absent a court order. A letter written by then-State Attorney General Dan Ryan in 1996, however, seems to say it's okay if the recording is made by a private citizen who believes evidence of a crime may be obtained by recording a conversation.
The students involved recorded a conversation with Mr. Drake in a Belleville (IL) park. The student spoke to Mr. Drake in a secluded area while an investigator and a teaching assistant listened in on the conversation in which Mr. Drake stated that Mr. McKinney was not present during the shooting.
Justice is not a zero-sum game. The ethical duty of a prosecutor is to see that justice is done - whether that result in a conviction, a dismissal or an acquittal. The prosecutor acts in the name of the state. The state, through the citizenry, has an interest in seeing that the laws are enforced, that those who commit crimes are punished and that those who are innocent are set free.
In this instance, the state is betraying the people's trust by trying to cover its ass instead of seeing that justice is done.
You only thought blowing under a .08 meant you wouldn't be arrested for DWI. You figured that once the result of that breath test came back the officer would admit his mistake and let you go about your business.
Mike Williams, rookie wide receiver for the Tampa Bay Buccaneers, thought wrong, too.
Early this past Friday morning, an officer with the Hillsborough County (FL) Sheriff's Office stopped Mr. Williams for speeding and weaving in traffic. The officer smelled alcohol on Mr. Williams' breath and noted he had glassy eyes. The officer determined, through a decidedly unscientific method, that Mr. Williams was intoxicated so he placed him under arrest and took him to the station where Mr. Williams agreed to submit a breath sample.
The results of that breath test, you ask? .065 and .061. Well below the legal limit in Florida.
Now, aside from the obvious question of how a "scientific instrument" can have two readings .04 .004 apart on two blows that were no more than two minutes apart (I can't imagine a scientist being too pleased with that result on a test), what does this say about the ability of an officer to detect an intoxicated driver using NHTSA's roadside coordination exercises?
These coordination exercises supposedly tell the officer when a suspected drunk driver has an alcohol concentration of .08 or higher. But did they in this case? The answer would appear to be a big fat negative. The officer based his arrest decision on Mr. Williams' driving, his appearance and his performance on the roadside exercises. He came to the conclusion that Mr. Williams had an alcohol concentration of .08 or higher while driving his car. His conclusion was wrong.
Of course the obvious conclusion is that Mr. Williams was intoxicated by something in addition to alcohol. So authorities ordered a urine test (now there's a scientifically accurate test for you). The only problem is that regardless of what shows up on that screening, there will be no evidence that whatever was in Mr. Williams' body (if anything) other than alcohol had any effect on his mental or physical faculties.
The legislature of Florida decided that a person is intoxicated with an alcohol concentration of .08 or higher. The decision was made by legislative fiat. There is no scientific evidence that any given level of any other substance will cause a person to lose the normal use of their mental or physical faculties. None. The results of the urine test will not tell a single person whether Mr. Williams was intoxicated or not.
What we have here is an officer who was convinced, based upon his observations, that Mr. Williams had an alcohol concentration of .08 or higher. The state's own breath test machine proved the officer wrong and so the officer must find some other way to justify his actions that night.
The truth, that nebulous concept that floats in and out of the aether always just seemingly out of reach, has a way of rearing its ugly head every once in a while. Now we all know that traffic tickets are nothing more than a user fee charged to motorists -- it's just that some folks pay a higher user fee than others -- but the cities and counties who depend on this ticket revenue will never admit it. Instead we're told that the police are writing tickets to make sure the roads are safe for all motorists. Yeah, right.
Leave it to City of Houston Attorney David Feldman, he who can't help but shoot himself in the foot, to tear down the public safety facade and call a spade a shovel. According to KRPC-TV,
Money was on the mind of City Attorney David Feldman in August when he implemented a new rule ordering all officers to show up in court at 1 p.m. on assigned court days, even though you have to be there at 8 a.m.
"With the more focused appearance time, we are experiencing far fewer no shows," Feldman said.
Mr. Feldman's move has reduced the amount of overtime paid to officers for sitting around the municipal courthouse all morning (a savings of $250,000 in August and September of this year compared to 2009) and has reduced the number of officers who fail to appear in court.
Texas Watchdog analyzed data from the city of Houston and put together a list of the officers who have had the most tickets dismissed due to their non-appearance in court. Officer Morrison was seriously injured when he was struck by a motorist during a traffic stop in 2009.
Officers with most Municipal Court violations dismissed due to absence : Data source: Municipal Court
Apparently HPD officers aren't altogether enthralled by the new procedure, either, as the number of tickets written in the past year has dropped by 25%.
Montgomery County District Attorney Bret Ligon and his assistant, Igor, Warren Diepraam are on a mission from God -- at least that's what they believe. Mr. Ligon has declared that his number one priority is to rid the roads north of the San Jacinto River of drinking drivers.
Montgomery County District Attorney Bret Ligon said Warren Diepraam has been described by others as “the mad scientist of DWI detection, suppression and prosecution.”
Mr. Diepraam spoke recently at a DWI seminar put on by the Texas District and County Attorneys Association that was sponsored by Annheuser-Busch. I figure that much like the tobacco companies started telling people to quit smoking, the alcoholic beverage industry will mouth the lines "don't drink and drive" in order to fend off new legislation that might affect their bottom line. After all, "here we go!"
The problem with Mr. Ligon's witch hunt is that it targets individuals who aren't even breaking the law. There is no law in the State of Texas that says it's illegal to consume an alcoholic beverage and then get behind the wheel of a car. The law says you can't drive that car if you've lost the normal use of your mental or physical faculties due to the consumption of alcohol, not that you're breaking the law if you drive with the odor of an alcoholic beverage on your breath.
“Warren’s efforts are actually unique, not only in this county, but I think people are beginning to realize that we have a resource here within Montgomery County that the rest of the state is starting to grab on to,” Ligon said.
Listening to Mr. Ligon and Mr. Diepraam you would think that drunk driving is the scourge that threatens to rip the very fabric of our society apart. To combat this apocalyptic threat, the crusaders want to shred the Bill of Rights. Fourth Amendment? That just gets in the way of gathering evidence. Fifth Amendment? It's much easier to convict someone if we can compel them to incriminate themselves. Sixth Amendment? Those lawyers will just tell their clients not to cooperate with the officers.
The District Attorney has put many tools in the hands of law enforcement since his election, such as a Hawk-Eye System which videos eye movements during a DWI field test. He has also implemented No-Refusal Weekends through the end of the year- hiring nurses to draw blood, which saves the time it otherwise takes officers to go to a hospital for the same process.
Does it really make you feel any safer knowing that the police are forcing your fellow citizens to submit to blood draws all because an officer smelled booze on their breath?
There is no other crime for which an individual has less protection against the power of the state than driving while intoxicated. The vast majority of drivers arrested on suspicion of DWI are guilty of nothing more than a minor traffic infraction, such as failing to signal a lane change or speeding.
The more we sit back and accept this assault on our personal liberty and privacy, the more the nation's roadways will begin to resemble airport terminals -- full body scan, anyone?
The FDA is concerned about the phenomenon of being "wide-awake drunk" due to the heavy alcohol content and high caffeine levels in the beverages.
FDA Commissioner Margaret Hamburg said the combinations of caffeine and alcohol in the drinks is a public health concern and can lead to "a state of wide-awake drunk." Evidence has shown their consumption has led to alcohol poisoning, car accidents and assaults, she said.
Red Bull and vodka is a popular beverage for the gambling set and college kids out for the night, but the combination of a stimulant and a depressant can lead to a situation in which an individual is intoxicated but has less self-awareness of their condition.
"The wide awake drunk phenomenon describes an individual who is impaired by alcohol but is wide awake," said toxicologist Dr. Bruce Goldberger.
One of the more popular alcoholic energy drinks is Four Loko, which contains 12% alcohol -- meaning one 23.5 ounce can contains almost as much alcohol as a six-pack of (that sorry excuse for a beer) Bud Light. Of course, the makers of Four Loko have their own spin on the issue.
I had just put the girls to bed and was looking to unwind for a few minutes so I flipped on the television and watched Billy the Exterminator track down a copperhead and kill a bunch of yellow jackets. Nothing weighty - just some laughs while Billy exaggerates the danger of every bug, rodent and creature he comes across.
But next came something I wasn't expecting -- Parking Wars. Where I was amused while watching bugs meet horrific deaths, I was shocked at what goes on in the City of Brotherly Love. Parking enforcement officers ride in vans equipped with cameras and computers that scan the license plates of parked cars and run them through the city's database of delinquent parking tickets. It doesn't matter if your parked legally -- if the van comes through and gets a hit on your license plate, your car is getting booted. Of course since there are few houses with driveways in the Philadelphia neighborhoods where the parking officers cruise, just parking your car legally on the street makes you fair game.
The other thing that struck me was the delusional self-importance of the guy driving the van. The most "true believer" prosecutor has nothing on this guy. Apparently he's doing the lord's work. Of course delusional self-importance can also be found in the courtroom. Ironically enough, the lower down the chain you go, the more delusional are the people you meet. A judge in traffic court will issue an arrest warrant if someone is 15 minutes late to an 8:00 a.m. docket call -- even though the police don't have to saunter in until 1:00 p.m. In felony court? Your client will be seated in the jury box and told not to be late again. And then there's this guy -- he's the bailiff in a Harris County Justice of the Peace Court down a way from here in a place sometimes referred to as Area 51 that will not be named.
Now it would appear that we've reached the tipping point in airport security procedures. My question, however, is where were Sen. Kay Bailey Hutchison and Rep. Ted Poe when President Bush created the TSA with the mission of tightening up airport security?
Full body scans and gropes pat-downs? That's where we finally draw the line? How about the other assaults on our civil liberties and privacy brought about in the PATRIOT Act?
Is the concern really that security protocols in our nation's airport have become too invasive or is it because it's happening under the Obama administration?
"The populace is giving up more rights in the name of alleged security." -- US Rep. Ted Poe (R-Texas)
If full body scans are that offensive to members of Congress, what about forced blood draws for a misdemeanor crime? What about judges who grease the skids for the vampires by signing pro forma warrant applications for blood draws without even speaking to the officers in person?
What about the mockery that is made of the Fifth Amendment by threatening to draw blood by force if a motorist exercises his right to refuse to blow into the state's breath test machine?
The [Obama]administration says that air travelers implicitly agree to any form of reasonable security screening when they enter the security lines at airports.
Sound familiar, anyone? That's the logic behind the implied consent doctrine in Texas. Of course I'm guessing that no one mentioned that at the time they took your picture and your money at the DPS driver's license office, either.
As criminal defense attorneys we are supposed to believe in the power of rehabilitation and that everyone deserves a second chance. At least that's what we profess to believe when speaking to the prosecutor, the judge or the jury about a client we don't think should go to prison.
In our personal lives, however, we don't always practice what we preach in the courtroom.
Michael Vick is a polarizing figure. He was sent to prison for his role in an interstate dog-fighting ring. Never mind for the moment whether it should have even been prosecuted as a federal case since Virginia has laws making what Mr. Vick did a crime; Mr. Vick plead guilty and did his time.
When he got out of prison the Philadelphia Eagles gave him a second chance. Ironically enough, it was Donovan McNabb who supposedly petitioned his coach, Andy Reid, to sign Mr. Vick. After playing a token role in the 2009 campaign, Mr. Vick has made the most of his opportunity in 2010.
I have colleagues who still spew vitriol whenever Michael Vick's name is brought up. Need I remind you that there are players wearing NFL uniforms who served time for taking the lives of other people. But where's the outrage that Donte Stallworth is allowed to play after serving all of 30 days in jail after pleading guilty to manslaughter in 2009?
Michael Vick made some mistakes. Michael Vick paid the price for those mistakes. Michael Vick is getting his second chance.
Another soccer season has come and gone. It seems like just yesterday we were gathered together laying out fields and putting together rosters. Now, as the chill of autumn pushes the warmth of summer away for a few months, I have more time on my hands.
No more soccer practice on Thursdays. No more prepping fields on Fridays. No more games on Saturdays. No more taking down flags and goals on Saturday nights. No more watching my three- and four- and five-year olds learning new skills and honing their old ones.
For four months out of the year I run the soccer program at my daughters' church. It's a lot of work - and a lot of headache. It's also a lot of fun.
The sight of soccer fields in the early morning hours, before the kids and SUV's arrive, is so calming to the soul. The sight of a youngster finally breaking through and scoring his first goal is inspiring. The sight of my daughters dressed in gold running and playing and smiling is precious.
My dad coached my soccer team the last year I played. He didn't know much about soccer. He had watched us play growing up and decided to be a coach. Looking back, it was pretty cool to play for my dad. He'd leave work early to get home and get us to practice. He did it because he knew playing soccer was something I loved to do.
Over the last four years I've had the opportunity to coach both of my daughters. My oldest played for another coach for the first time this year. To stand on the sideline and watch her play, not as a coach, but as a doting father, was a wonderful experience.
Like everyone else, my dad is getting older and his health isn't as good as it once was. I know that someday he'll be gone, but those memories will always live on -- baseball games, backyard barbecues and coaching.
Susan Brenner over at Cyb3rcrim3 tells a Kafka-esque tale in which the police violate a man's Fourth Amendment rights, the court acknowledges the violation and then (essentially) says "no harm, no foul."
Ms. Brenner is an associate dean and professor at the University of Dayton School of Law where she conducts a seminar on cybercrime. In her blog last Wednesday she tells us the story of Efraim Rosa from upstate New York who, shall we say, wasn't the best of people. Mr. Rosa was accused of molesting two young boys and showing them pornographic material on his computer.
Late on September 26, 2007, the Oswego County Sheriff's Office began investigating possible child exploitation by Efrain J. Rosa after Deputy Sheriff Burke was dispatched to a local address upon receipt of a 911 call from two mothers reporting that their minor sons had just disclosed being sexually abused by a neighbor, whom the boys referred to as `J.’. . . . Burke learned ‘J’ had shown the boys files on his computer containing nude pictures of the boys and other children and had engaged in sexual conduct with the[m]. The boys [said] `J’ kept three laptop computers in his apartment, had a USB flash drive on which he kept images of nude children , a pistol in his bedside table and had sexually abused the boys on multiple occasions. . . . [A]t approximately 2:00 a.m., officers sought the assistance of Investigator Blake, who had specialized training in computer forensic exams in child pornography cases. . . . Blake prepared a search warrant application and affidavit, which he presented to Granby Town Justice Bruce Wells in connection with his request for a search warrant of Rosa's apartment. . . .
[A]t 4:10 a.m., Judge Wells issued a search warrant directing the Sheriff's Office to search `[t]he entire residence known as 30 West 11th Street Building E Apartment 1 Chateau West Apartments in the Town of Granby, County of Oswego, State of New York. This is to include any containers or rooms whether locked or otherwise[ ]’ . . .for the following property: `. . . computer equipment, electronic digital storage media included but not limited to floppy diskettes, compact disc, hard drives whether mounted in a computer or otherwise, video or audio tapes, video surveillance systems, video and digital camera systems, printing devices, monitors, firearms and any written and/or printed and/or electronic stored notes or records which would tend to identify criminal conduct and any personal papers or documents which tend to identify the owner, leasee or whomever has custody or control over the premises searched or the items seized.’
Mr. Rosa moved to suppress on the grounds that the search warrant was overbroad. The trial judge said no and Mr. Rosa subsequently plead guilty and reserved his right to appeal. And appeal he did.
The 2nd US Circuit Court of Appeals agreed with Mr. Rosa that the warrant was bad because it did not limit the parameters of the search; by the language of the warrant the officers could seize any item that could be evidence of any crime, rather than evidence regarding the possession of child pornography.
However, the court then attempted to balance the deterrent effect of the exclusionary rule against the cost of suppressing the evidence. In other words, the court set out to determine what was worse - the conduct of the police of the crime for which Mr. Rosa was convicted. I don't have to tell you how that test came out.
The problem is the court looked to the result and not the process. The Fourth Amendment doesn't say that we are free from unreasonable search and seizure, unless we're accused of doing something really bad. Yes, the application of the exclusionary rule in this case would have benefited a man accused of some nasty crimes, but sometimes that's the price we have to pay to preserve our Constitutional rights.
The City of Houston abruptly changed course from earlier pronouncements that it would take up to 120 days to cancel the contract and made the surprise announcement late Friday. ATS, the Arizona company hired by the city to install the cameras is looking for some type of a settlement with the city but activists who campaigned against the cameras are opposed to any type of settlement with the company.
Mayor Annise Parker has announced that removing the cameras will cost the Houston Police Department approximately $10 million annually -- pretty much an admission that the red light camera program was nothing more than a thinly veiled user tax for motorists who drive within the city limits.
This is the Live Oak County Courthouse located in George West, Texas. The courthouse was built in 1919 in the Texas Renaissance style. While it's not a fancy looking building, it is another example of what makes courthouses in small towns special.
George West is the home of Texas folklorist J. Frank Dobie. In 1941 he published his detailed history of the Texas longhorn cattle, entitled, appropriately enough, The Longhorns.
This is the district courtroom on the second floor of the courthouse. According to Lois Shannon, the district clerk, the courthouse is supposed to be haunted by the ghosts of children running around downstairs. Here's an excerpt from the Texas Ghosthunters website about the ghosts in the courthouse.
People have reported hearing the sounds of children playing and laughing, although there were never any children harmed or killed within the courthouse.
There is also a picture in the district courtroom of an ex-district court justice whose eyes will follow you all over the courtroom. It has also been told that if you walk on the south hall on the second floor you will hear footsteps following you. The city founder, George Washington West, has been seen in the same hallway. I witnessed this for myself while standing on the ground outside the courthouse one night.
The yellow building is an addition to the courthouse. As you can tell, at the intersection of form and function someone ran a stop sign because that's a mess.
I'll leave y'all with this relic from a bygone era.
Driving down to Live Oak County this week, a friend and I decided to see which of the two Czech purveyors of barbecue along US59 was better. We ate dinner at Prasek's in Hillje on the way down and lunch at Mikeska's in El Campo on the way back.
I had the brisket and sausage plate at Prasek's with a double shot of baked beans for dinner. The meat came smothered in a spicy barbecue sauce (a definite no-no in my book). The brisket was sliced thin and didn't hold up to the sauce. The sausage, on the other hand, was a definite winner. It was firm and more than held its own against the sauce. There was also a huge bucket of sweet tea to wash down the smoked meat.
Prasek's has done a serious renovation job over the last year and the restaurant is huge. There's a meat counter (any kind of jerky or smoked meat you want is right there), a giant beer cooler with a selection that would rival a small Spec's and a giant salt water aquarium. It looked like a restaurant happened in the middle of a Buc-cee's.
For lunch I grabbed a brisket and sausage plate at Mikeska's with corn, mashed potatoes and banana pudding. No sauce. My belief is that properly smoked meat doesn't need any sauce as it should be firm but not dry with lots of smokiness. The brisket at Mikeska's was hands-down the better of the two. The burnt ends were heavenly. The sausage, on the other hand, left a bit to be desired. The banana pudding, however, was incredible. (A special thanks to the girl behind the counter who told me that banana pudding was a side.) Mikeska's feels like a big cafeteria - albeit with a wall full of stuffed animals.
My verdict? You can't go wrong at either place. If you go to Prasek's tell the man behind the counter either you don't want sauce or you want it in a cup. If you go to Mikeska's, just skip the sausage so you have plenty of room for the banana pudding.
Who is Thomas Greenburg and why is someone posting spam comments on my blog about him?
On a recent post about the problems of eyewitness identification, I received the following comment from someone named Nick:
It helps that what used to be called “absentee” ballots are now available to any voter, and that the Fuller Brush-esque efforts of motivated get-out-the-vote registrations this year included conveniently pre-marked for Republican ballot samples (so that Grandma on the respirator can vote, too). San mateo criminal defense attorney
If you're going to spam, you should probably do it with a somewhat relevant comment. I have yet to figure out what Nick's comment has to do with eyewitness identification. And I wonder if Mr. Greenburg knows anything about Nick's posting comments that link back to his website (sorry, no link love, Mr. Greenburg).
Mr. Greenburg's friend (pimp?) Nick has two blogs - one is a fascinating look at the world of designer sunglasses and the other is about India. The sunglass blog has all of two postings and Nick's India blog just leaves us hanging after the first posting.
There is a link on Nick's sunglass blog to the website for some Indian company called Xwebdesigner that features some terribly mangled language -- just the folks I want designing my website.
Mr. Greenburg himself decided to start up a blog but gave it up after two posts. I guess the creative energy it takes to keep a blog going was a bit too much for him.
On Monday morning, a Connecticut jury sentenced Steven Hayes to death for the murders of three people in a home invasion. Mr. Hayes is not a good man -- but does killing one bad man bring any justice to anyone?
For three well-written viewpoints on the death penalty I would encourage you to read the following blog posts:
Apparently it's not enough for Tomball state representative Debbie Riddle to file a bill turning police officers into immigration officials -- she had to be the first in line. Ms. Riddle spent two nights camping in the hallway just outside the house chamber so she could be the first to file bills for the upcoming legislative session.
Ms. Riddle's immigration bill would create a new Class B misdemeanor -- criminal trespass by illegal alien. The new bill would allow officers to check the immigration status of any individual the officer believes is committing any criminal offense. If illegal immigration is this great threat to our way of life, why is the proposed crime just one step above a traffic ticket?
Now that sounds all well and good. If you're going to live in another country, you best obey the law, that kind of thing. But here's where it gets messy. Let's just suppose that the police officer was wrong about his suspicion that the person was committing a crime. That case goes out the window - but should HB17 pass, that same person would also be charged with criminal trespass -- even though he did nothing that should have gotten him arrested in the first place.
Here's an example. J.Z. is arrested on suspicion of driving while intoxicated. During the course of the investigation, the officer finds out J.Z. is not in the country legally so he arrests him for both DWI and criminal trespass. As it turns out there were problems with the traffic stop and the DWI case is dismissed. J.Z. should be able to go about his business -- but no. He still has a criminal trespass charge hanging over his head; a charge that never should have been filed because J.Z. shouldn't have been arrested in the first place.
There's another issue as well, proving up, in a criminal court, that a person is here illegally. Who is the state going to put on the stand to prove up the accused's status? Who's going to be called to testify as to the reliability and accuracy of the government's records?
Then there's HB18 which would make prohibit cities, counties or other political subdivisions from not enforcing federal immigration laws. In other words, a city or county would not be eligible for state money if it adopted any policy that prohibited, or discouraged, officers from checking a suspect's immigration status. The proposed legislation takes dead aim at Houston which has adopted policies leading some critics to label the city as a "Sanctuary City" for illegal immigrants.
Legislation in Arizona that turned the police into immigration officers currently is tied up in federal court.
We're taught in law school that bad facts make bad law. Here's the corollary, publicity-seeking politicians make bad law, too.
Mr. Sommers took that photo array, composed of nine photographs, and showed it to 31 people who matched the same basic demographics of the alleged victims. Without providing any details of the crime, he asked each subject to pick the person out of the photo array whom he or she thought committed the crime. He then asked them to make a second choice.
Basic probability tells you that the random sample should pick out the defendant about 11% of the time. Adding a second choice would increase the odds to 2 in 9. The results of the experiment astounded Mr. Sommers.
But in my photo array experiment, 23% of naïve respondents picked out the defendant with their first choice, knowing nothing at all about the crime. And a full 45% chose the defendant with either their first or second choice. Statistical analysis confirms that these are significant deviations from chance: for some reason (or reasons), the defendant did stick out like a sore thumb, casting doubt on the usefulness of the actual victims' identifications in the case.
Mr. Sommers decided to run the experiment again to see if the results would be different if he provided details of the crime. For the follow-up he provided the subjects with the same description the victims gave to police.
The second time around the test subjects picked the defendant out of the photo array 29% of the time and 65% of the test subjects picked him out with their first or second choice.
Whether this experiment speaks more to the problems with photo arrays or with eyewitness identification I don't know. It's shocking that the number of people who picked the defendant out of the array, without having any knowledge of the crime or the suspect, was more than twice what blind chance would dictate.
What was it about the photograph? Was the image the same size as the others on the page? Was it the barely visible booking identification number? Did he just have that look?
Perhaps a new method of eyewitness identification needs to be used - such as that The Justice Project proposed in March of last year.
In light of the Republican sweep of the judicial races in Galveston County, we once again hear calls for non-partisan judicial elections. Those calls, by and large, come from the folks who came up on the short end of the stick.
Sure, there are some folks who will be sitting on the bench who have no business doing so all because they had an "R" after their name. Of course, there are other folks sitting on the bench who have no business doing so because they a "D" after their name. There are also quite a few folks who are well-qualified to sit on the bench who aren't because of the letter after their name.
What's the alternative to partisan judicial elections, I ask you? There is little a judicial candidate can say on the campaign trail other than they will follow the law and will treat everyone who comes before them with respect. They can talk about their experience and why they're are more qualified to sit on the bench than their opponent, but, outside those attorneys that do their work inside the courtroom, it's an abstraction.
What is most important is that the the political process be fair and transparent. And that judges abandon the politics in the courtroom and chambers. I believe most judges of both parties do their job without regard to politics regardless how they were chosen. I have been elected in a partisan election and lost an election in a partisan primary...I prefer contested elections because I believe the people have the right to choose their state and county judges...Even when my party or I lose an election I support the process. The people have the right to choose even when I disagree with their choice. I do not have a problem with the partisan process. Partisan primaries are a screening process. I think even less people would participate in non-partisan elections...Each time lawyers and judges that were aligned with the losing party complained after the loss about the partisan part of the process claiming unqualified judges were elected. The truth is many qualified and unualified people get elected to benches and other offices every election year. Elected judges are not guaranteed infinite job security in exchange for doing a good job.And sometimes the most qualified applicant does not get the apppointment. No sytem guarantees that that the best person always wins. The system is not flawed just because our party or favorite candidate or applicant does not win.
-- Judge Susan Criss, 212th Judicial District Court, Galveston County, Texas.
In a non-partisan election judicial candidates would have to educate the public about why they should sit on the bench. That means money - and lots of it. And who are the biggest campaign contributors to judicial candidates? It shouldn't surprise you that they are the attorneys who appear in their courts. If you want more special interest money and a handful of ethical dilemmas, make judges run without party affiliation.
Appointing judges is a non-starter in Texas. We don't trust the government any further than we can throw it. Texans wanted a weak state government so they chose to elect judges after Reconstruction.
Retention elections aren't the answer. Talk about a cesspool of special interest money. Judges would be, in essence, running against themselves. What percentage of the vote would be required for a judge to retain a bench? And what would happen if a judge failed to achieve that percentage? Would there be a special election to pick a judge or would we allow the governor to appoint someone to sit on the bench?
I think Judge Criss hit it on the head with her comments on her Facebook page. Partisan elections might not be the best method of picking judges, but it sure beats the alternatives.
"Where's your homework?" "I lost it, mom." "Lost it? Really? You expect me to believe that?" "Yes, mom, really. I left my book on the hood of the car and drove off and forgot about it."
Authorities worked Wednesday afternoon to literally get drugs off the street after a canine handler realized he may have lost about 28 grams of methamphetamine last week along Highway 22.
The canine handler left a black box — which contained the drug and has white lettering that says “METH” on it — on his bumper and drove away after a training exercise in the area Oct. 27, sheriff’s Sgt. Lloyd Funk said. When the handler, a Teton County Sheriff’s deputy, realized Monday evening that the drugs were missing, he immediately notified his sergeant, Funk said.
Sheriff’s deputies used dogs to search a small area Monday night and conducted additional searches Tuesday, Funk said.
When Teton County Sheriff Jim Whalen was notified Wednesday afternoon of the loss, he ordered a sweep of the area from Spring Gulch Road to Skyline Ranch, Whalen said.
More than 10 officers from the Teton County Sheriff’s Office and Jackson Police Department walked two or three abreast in both directions Wednesday afternoon as passing motorists slowed to see what they were doing.
A female deputy at the scene said officers had not been told whether they were at liberty to say what they were searching for and directed media inquires to Funk.
The sheriff’s office is taking the loss seriously, Whalen said.
“I know that accidents happened and that people make mistakes, but this is a mistake that should not have happened,” Whalen said.
If a person were found with the amount of meth that was lost — nearly an ounce — he would be charged with a felony, Whalen said. The meth was provided to the sheriff’s office by the U.S. Drug Enforcement Agency for canine training, he said.
During canine training, the dog is rewarded when it’s done its task correctly, Funk said. When the dog found the drugs, the handler likely began praising it, he said.
“I believe what our officer did was get wrapped up in [praising the dog],” Funk said. “After 10 or 15 minutes of that, he put the dog in the vehicle and forgot the substance.”
The handler trained the dog along the roadside to simulate realistic working conditions, Funk said.
The intention is to teach the dog to concentrate on its objective despite distractions such as passing traffic.
Whalen said the sheriff’s office is taking corrective action but that the handler has not been put on administrative leave.
“He’s a good canine handler. He’s made a couple of mistakes here, and so we’re taking corrective action that this won’t happen again,” Whalen said.
As of Wednesday evening, the box containing drugs had not been found. Whalen and Funk asked that anyone who may have found it or has any information about it call the sheriff’s office at 733-4052 or dispatch at 733-2331.
Y'all just thought that voting against red light cameras in Houston would get rid of them, didn't you? Nevermind that 53% of the voters on Tuesday gave a thumbs-down to the city's latest user tax. Now city officials are doing whatever they can to keep the cameras up despite the vote.
Citing the cost of breaking the contract, Houston City Attorney Dave Feldman said the city first has to canvass the vote and then give notice to ATS, the Arizona company who runs the program. Mr. Feldman also said that the city must honor the 120-day termination notice in the contract before taking the cameras down in order to avoid termination fees and possible litigation.
Um, excuse me, arrogant city officials, the voters have spoken and the message was loud and clear: the cameras need to come down. As Houston ticket attorney Paul Kubosh noted, if the city can't afford the termination fee, then the people who signed the contract should be fired. Former city attorney Benjamin Hall said the city had no business keeping the cameras up since the voters made their preference known.
The red light cameras were a boondoggle from the beginning and will continue to be until city officials do what they've been told to do. Mr. Feldman and everyone else down at City Hall need to realize that they aren't the bosses -- they are the employees who serve at the will of the populace.
Mayor Parker, your bosses have spoken. Take the cameras down.
I have a client who received a handful of moving violations recently and was forced by the justice of the peace to plead guilty to one of them. Not wanting to have a conviction on her driving record, we filed an appeal to the county court.
We received notice from the district clerk's office of the setting for the appeal. Then the lawyer letters began pouring in. These are some snippets from the various letters she received:
"Public arrest records form the Harris County District Clerk's Office indicate that you have recently been charged with a criminal offense. This is a serious matter. You could go to jail and be fined thousands of dollars."
"Over the next couple of days, we suspect that you will receive many letters from attorneys trying to get your business. Selecting a GOOD attorney is the first step to freedom and clearing your good name. We urge you to put a lot of thought into who you hire, since your good name and your life are at stake."
"The Harris County District Attorney's Office employs assistant district attorneys to prosecute you to the fullest extent of the law. They do not have your best interests at heart."
"As a former Harris County Assistant District Attorney, I am familiar with the various courts, their staff, the judges and the thinking of the DA's Office. They trained me, and I can use the skill and knowledge which I gained as a Prosecutor to aggressively defend your rights."
"I know how prosecutors are trained to build a case against you and I will work hard to defend your rights and your freedom...My rates are fair and reasonable and can be as low as $200 for misdemeanors and $600 for felonies depending on your situation."
All of this over a traffic ticket set for an appeal. The letters are mind-boggling. The scare tactics employed are questionable. The claims from former prosecutors turned defense attorneys that their experience as a prosecutor somehow makes them more qualified to defend you are laughable. At least one attorney made a point of stating that he was not a former prosecutor. The prices quoted for representation are shameful. One did offer to reduce the fee by $100 if that attorney was hired prior to the second setting, however.
Whether you win or lose, of course, depends on the facts, but how your message is received by the jury, judge, mediator, or the arbitrator plays a role. When it comes to communication behaviors, there are verbal and nonverbal elements that affect credibility, and there are general differences in the way men and women communicate. Some pose advantages for each gender, and some pose disadvantages. The good news is that there are teachable/learnable verbal and nonverbal elements of presentation that drive credibility, and a lawyer's credibility is a key component in persuasion.
Ms. Dominic looks at the differences between men and women in both verbal and nonverbal communication and makes some interesting observations.
She says that men are conditioned while young to use words that are more "task-oriented" than women. A male attorney is more likely to say "The point is..." or "I need you to..." while a female attorney will attempt to build a better rapport with the jury by using "We" and "I see." She also points out that men are more likely to use statements as leading questions while women tend to make it more of a question. She also points out that women are more likely to use intensifiers and hedgers such as "Very," "I think," and "Maybe" than men.
While building rapport might be a better path to getting the jury on your side, using intensifiers and hedgers will hurt your credibility.
Ms. Dominic also points out differences between men and women in regard to eye contact, voice tone, and body and head position. She says that women are more likely to look someone in the eye - until they come into conflict - than men. Interestingly enough, men and women assume an open body position at different times: men when feeling uncomfortable and women when feeling comfortable. Women seem to use nonverbal cues to indicate interest more so than men.
Each of us can benefit by identifying those traits that hinder our credibility, and focusing on changing behaviors that will increase our effectiveness. When we understand the messages that our verbal and nonverbal communication cues send, we can begin to hone the traits that negatively impact our credibility and refine those that capitalize on our strengths.
Next time you're in the courtroom, watch how the people around you are communicating, both verbally and nonverbally, and see if you can pick out of the behaviors noted by Ms. Dominic.
