Tuesday, August 31, 2010

The floor is yours

I've heard through the grapevine that I upset some of my colleagues with a recent post regarding defense attorneys (who also serve as municipal judges and prosecutors) volunteering to review blood search warrants on No Refusal Weekends (click here). One attorney, for whom I have a great deal of respect, told me he thought my post was "bad form."

No, leaving aside the debate as to whether it's worse form to collaborate with the state in its efforts to trample the rights of the citizenry or to expose those who choose to do so, if either of the attorneys I mentioned in that post wish to respond, the pages of this blog are open to you.

If either attorney wishes to respond, rebut or offer enlightenment on the issue, forward it to me and I will run it unedited -- though I do reserve the right to comment in a future post.

Monday, August 30, 2010

Facebook post lands juror in hot water

Think a juror's fondness for social media won't affect your client? Think again. A Macomb County (Michigan) judge removed a juror from a case after the defendant's attorney's son found that the juror, Ms. Hadley Jons, had posted a message on her Facebook page that she thought the defendant was guilty -- before the trial was over.

Judge Diane Druzinski has ordered Ms. Jons to return to court on Thursday to determine if she will be held in contempt.

While the judge was upset and the defendant's attorney was outraged, the fact that a juror had already made up her mind is not that disturbing. We are told in seminar after seminar that anywhere from 75% to 100% of jurors make their minds up before hearing any evidence. Based on the handy 80/20 rule, I will assume that up to 80% of jurors have their minds made before the trial even starts. Why else would we sit through as many seminars as we do dealing with voir dire and using your opening statement to tell a story?

Back in the pre-Facebook days no one would ever have known Ms. Jons had already decided the case before it was over. She might have told a friend and that friend may have told someone else, but there would have been no way to discover those conversations outside Ms. Jons' own admission. The kicker here was that she broadcast here opinion on Facebook without giving a second thought whether someone might be checking up on her during the trial.

This incident points out two very important points. First, you need to know who among your panel uses social media on a regular basis, who posts on Facebook, who spends time on Twitter and who reads or writes blogs that might have something to do with the issues in your case. Second, with our expanded use of social media, we are rapidly shrinking our reasonable expectation of privacy  -- just ask Ms. Jons about that.

Friday, August 27, 2010

Tinkering with jury selection

A while back, my colleague, Houston criminal defense attorney Mark Bennett, blogged about an experiment he conducted at trial. Using a set of questions designed to identify whether jurors had a more egalitarian or authoritarian outlook, he scored the panel as a whole, the jurors selected to hear the case and the jurors on whom both sides used their peremptory strikes.

This past week I tried a case down in Missouri City, a bedroom community located in suburban Fort Bend County just southwest of our fair city. My client had been cited for municipal code violations and chose to fight rather than pay the tickets due to the circumstances under which he was cited.

I asked the panel of 25 Missouri City residents three scaled questions to find out who was more state-oriented based on authoritarian beliefs. The scale for each question ranged from 0 to 10 with a 10 indicating a strong authoritarian belief; the hypothesis being that the higher the scores, the more state-oriented the juror would be. The questions were as follows:
1. Do you agree that, in the long run, order is more important than liberty?
2. The freedom of society is endangered at least as much by overzealous law enforcement as by the acts of individual criminals.
3. The Court will instruct you that the State has the entire burden of proof in this case. How would you feel if [the defendant] didn't testify?
For the first question, a 0 would indicated the juror strongly disagreed with the statement and a 10 would indicate the juror strongly agreed with it. For the second question, a 0 would indicated a jury strongly agreed with the statement while a 10 would indicate the juror strongly disagreed with it. For the final question, a 0 would indicate a juror would not hold it against my client if he did not testify while a 10 would indicate a juror would hold it against my client.

For Question No. 1, the average answer for the panel of 25 jurors as a whole was 4.6; the average answer for the six people selected to hear the case was 3.8. The average answer for the jurors struck by the state was 5.0 while the average answer for the jurors I struck was 4.7. There were no jurors struck for cause and each side was allowed three peremptory strikes.

For Question No. 2, the average answer for the panel as a whole was 5.8; the average answer for the six jurors who heard the case was 5.5. The average answer for the jurors struck by the state was 6.0 while the average answer for the jurors I struck was 6.3.

For Question No. 3, the average answer for the panel as a whole was 2.3; the average answer for the six jurors who heard the case was .5. The average answer for the jurors struck by the state was 2.0 while the average answer for the jurors I struck was 6.3.

I also calculated the average answer given by each juror during voir dire by adding up the three answers each juror gave and dividing by three. The average answer given by the panel as whole was 4.2 while the average answer given by the six panelists who sat on the jury that heard the case was 3.3. The average score for the jurors struck by the state was 4.3 while the average score of the jurors I struck was 5.6.

For Question No. 1, 8% of the panel as a whole answered between 0-3 while the remaining 92% answered between 4-6. For Question No. 2, 8% of the overall panel answered between 0-3, 60% answered between 4-6 and 32% answered between 7-10. For Question No. 3, 76% of the panel as a whole answered between 0-3, 20% answered between 4-6 and 4% answered between 7-10.

For Question No. 1, two people answered between 0-3 and the remaining four answered between 4-6. For Question No. 2, one person answered between 0-3, three people answered between 4-6 and the remaining two answered between 7-10. For Question No. 3, the entire panel answered between 0-3.

The jury delivered not guilty verdicts on both counts before them. Of course this doesn't prove anything since we have no way to determine how the panel as a whole would have decided, but the numbers were rather interesting.

It's life on the island, mon



My island home-away-from-home is at 59th and Broadway. A very open and airy design with only four floors makes the Galveston County Courthouse easy to navigate.


Palm trees. Lots of palm trees. You can't beat it.


Here's the money shot (looking west from the 4th floor.)

All I want is for someone to tell me what this strange structure across the street from the County Jail is. I think there was some kind of a factory on that land and that this was part of a machine. Someone? Anyone?

Thursday, August 26, 2010

Um, excuse me

Prosecutor: "Judge, that's the case I asked you if I needed to subpoena witnesses and you told me we could try it on what's in the file."

Did I not get that memo?

Wednesday, August 25, 2010

Where's the fire marshal when you need him?



Sign in the lobby of the Harris County Criminal (In)justice Center.

Crowded (court) house

Might something actually be done to alleviate the overcrowding at the Harris County Criminal (In)justice Center?  Although defense attorneys have complained for years about the ridiculous conditions inside the courthouse, the mainstream media has just now caught hold of the story.



The cattle calls in the 15 misdemeanor and 22 felony courts every morning creates two long lines around the front of the building and unbelievable waits for elevators in the lobby. These delays then cause citizens to see their bonds forfeited because they were unable to get into the courtroom in time for a 9:00 a.m. docket call.
"(The building at 1201 Franklin is) the most poorly designed criminal justice center in the United States of America." -- Harris County District Attorney Pat Lykos
Over at 201 Caroline, the crowds are much more leisurely -- particularly since tort reform did away with entire caseloads. Escalators take folks to the first four floors and two large banks of elevators serve the courtrooms. There are no escalators at 1201 Franklin leaving everyone attempting to get to the 2nd floor and the district clerk's office on the 3rd floor to fend for elevators. The stairs are hidden and are, for the most part, inaccessible to the public. Of course the 37 men and women in black robes have the luxury of sharing two elevators (making the disparity in sentencing between crack and powder seem downright negligible).

The problems could be (somewhat) alleviated by staggering dockets throughout the morning to spread out the arrival of people and by the courts providing longer resets.

See also:

"What's wrong with this picture?" The Defense Rests (March 31, 2010)
"Docket call at the criminal courthouse: Double whammy nightmare" The Houston Press (April 2, 2010)

Tuesday, August 24, 2010

Putting the genie back in the bottle

Sometimes there is strength in numbers.

Houston Police Chief Charles McClelland drafted a memo back in July that forbade officers to speak with defense attorneys without a prosecutor present. The Harris County Criminal Defense Lawyers Association then appeared en masse before the Houston City Council in opposition to the policy.

Now Chief McClelland has backtracked and retracted the original memo.
"In order to dispel any appearance of impropriety, I am clarifying my directive to advise officers that permission from the prosecutor is NOT required before speaking to a criminal defense attorney about a pending case." -- HPD Chief Charles McClelland
Kudos to HCCLA President Nicole DeBorde and head rabble rouser Robb Fickman for their yeoman effort in getting the Department's policy reversed.

Monday, August 23, 2010

One fewer alternative

And so the number of alternative voices on the Houston airwaves is about to get even smaller with the plan for Rice University to sell the tower, frequency and broadcast license for long-time college radio station KTRU to the University of Houston. The purchase will allow the University of Houston to move its classical music station, KUHF, to 91.7 FM and operate the current station at 88.7 FM as an all-news and information station.

KTRU was a voice, sometimes a very odd voice, for the quirkiness that enveloped the Rice University community. There was no set playlist, every DJ spun their own records and result was a melange of music styles. KUHF, on the other hand, is a classical station and broadcasts syndicated National Pubic Radio content. NPR is funded largely by donations from corporations and foundations and while the news broadcasts might give a slightly different spin than the networks, the formula was generally to have the obligatory pundit from the left and the pundit from the right "debate" the hot button topic of the day. No one ever challenges the basic premise, just the way it's spun.

With the demise of KTRU, the only alternative voice left on the dial belongs to those lovable anarchists down on Lovett Street, KPFT.

With corporate radio having a stranglehold on the Houston dial, the loss of even one alternative voice is too much.

Hunting for the hold-out

Most folks will hold to an opinion until a tipping point has been reached and their opinion is no longer a popular belief. Rare is the person who holds on to that opinion even when it seems that everyone else has moved to another position. Finding that person in a jury panel is one of the most challenging tasks for lawyers and jury consultants.

Roy Futterman of DOAR Litigation Consulting is paid by people to find the six or twelve most favorable people in a jury panel. He looks at a potential juror's education, employment data, marriage status and answers to voir dire questions to come to his conclusions.

Now making decisions based strictly on the information provided on the court's juror information card leaves you exercising old stereotypes when making your strikes. The information is useful but certainly not enough to come to any conclusions about how that juror would react. Adding in the juror's answers to questions helps you make a better judgment -- but only if you ask the right types of questions.

While Mr. Futterman says he can make educated guesses at the types of jurors who might be good or bad for a client, he can't pick out the potential hold-out jurors. He did say that a hold-out juror tends to be very confident in his opinion as well as someone who might have concerns about sitting in judgment of another person.

Being able to spot that person may be the difference in a conviction and a mistrial.

Friday, August 20, 2010

Thursday, August 19, 2010

Just which hat is it I'm wearing tonight?

Thank you so much for agreeing to be the magistrate on duty for one night of Harris County's No Refusal Weekend. As I mentioned on the phone, we're asking for coverage on your night from 2-5am. We'll be running No Refusal on Thurs Dec. 17, Fri Dec. 18 and Sat Dec. 19. I'd be happy to mark you down for whichever night works best for you.
Between emails and faxes, I'm hoping that the process is stream-lined enough to make this a minimal inconvenience.
E-mail from Assistant District Attorney Catherine Evans to criminal defense attorney and El Lago Municipal Judge, Robert Barfield dated 12/8/2009.
*   *   *   *   *
My wife and I are going to *** for Christmas with her family and I am having Christmas with my family early the weekend of the 18th.
I will not be able to help with this no refusal weekend.
E-mail from Robert Barfield to Catherine Evans dated 12/14/2009.
*   *   *   *   *
Thank you for checking your schedule, and I appreciate your willingness to help out. Have a happy holidays.
E-mail from Catherine Evans to Robert Barfield dated 12/14/2009.
*   *   *   *   *

I wonder if Mr. Barfield has informed any of his clients that he works hand-in-hand with the Harris County District Attorney's Office to coerce motorists to blow into the state's breath test machine under threat of forcible blood draws. I wonder if he has any compunction about playing both sides of the fence.
*   *   *   *
Can you do any of the following nights? Dec 26, Dec 31 or Jan 1?
E-mail from Catherine Evans to criminal defense attorney and El Lago Municipal Judge Peter deLeef  dated 12/21/2009.
*   *   *   *  
26 th
E-mail from Peter deLeef to Catherine Evans dated 12/22/2009.
*   *   *   *
You're awesome! Thank you!!
E-mail from Catherine Evans to Peter deLeef dated 12/22/2009.
*   *   *   *
You prefer to go down to intox right?
E-mail from Catherine Evans to Peter deLeef dated 12/22/2009.
*   *   *   *
This is as Christmas day turns to midnight
E-mail from Peter deLeef to Catherine Evans dated 12/22/2009.
*   *   *   *
Yes.
E-mail from Catherine Evans to Peter deLeef dated 12/22/2009.
*   *   *   *
tonight right
E-mail from Peter deLeef to Catherine Evans dated 12/25/2009.
*   *   *   *
No. Tomorrow night.
E-mail from Catherine Evans to Peter deLeef dated 12/25/2009.
*   *   *   *
Sorry, I'm a total dork and realized that I double-booked you and [Judge Jay] Karahan for tonight. If you can do it tomorrow night (technically 2-5am on the 27th) that's great. Otherwise, we'll take the warrants to the magistrate. Sorry!!
E-mail from Catherine Evans to Peter deLeef dated 12/25/2009.
*   *   *   *
I will do it tomorrow the 27th.
E-mail from Peter deLeef to Catherine Evans dated 12/25/2009.
*   *   *   *
Thank you! Now I really, really owe you!
E-mail from Catherine Evans to Peter deLeef dated 12/25/2009.
*   *   *   *
Again I must ask whether Mr. deLeef has disclosed to any of his clients that he has worked side-by-side with the HCDAO in securing blood warrants on "No Refusal Weekends." How many warrants has he signed? Did he see any conflict of interest between his volunteer work for the HCDAO and his criminal defense practice?

In both instances we have attorneys who hold themselves out at criminal defense lawyers but whose work on the side brings them into direct contradiction with their duty as criminal attorneys. Our job is to defend the Constitution and the Bill of Rights, not to play footsy with prosecutors seeking an end-run around them.

Wednesday, August 18, 2010

Separation of powers? What separation of powers?

Judge Mejia --
Thank you for your assistance this past weekend with our No Refusal Program.
I'm cc'ing the new chief of the Vehicular Crimes Section, Catherine Evans, so you can work with her to arrange for future No Refusal Programs.
I will continue to remain in the Section and work with the No Refusal Programs, but please contact Catherine [Evans] with any issues you have. Thanks again.
E-mail from former Harris County prosecutor Brent Mayr to former Director and Presiding Judge for the City of Houston Municipal Courts, Berta Mejia dated 11/30/2009.
*   *   *   *   * 
You're welcome. My only complaint (if you can call it that) is that we would like as much notice as possible. For this last weekend, we were notified on Tuesday...
E-mail from Ms. Mejia to Mr. Mayr dated 11/30/2009.
*   *   *   *   *
Judge Mejia,
Thanks for letting me know. I'll make note of that on our schedule.
In the past, some of your Municipal Judges have volunteered to assist us during some of the peak hours. Do you mind if I approach them? I'm trying to make sure that we procure and execute these warrants in the most expeditious way possible, and when we're fortunate enough to have a Judge or Magistrate dedicated only to reviewing the warrants, it certainly moves the quickest.
E-mail from Catherine Evans, HCDAO, to Ms. Mejia dated 12/9/2009.
*   *   *   *   * 
So some of the judges at 1400 Lubbock Street have "volunteered to assist" the Harris County District Attorney's Office on "No Refusal Weekends?" Pardon me, but it's not the job of members of the judiciary to "assist" the DA's office. Judges are supposed to be neutral arbiters (I'm certain someone at least says that during "judge school"), not assistants to the District Attorney. There's that little separation of powers thing, if you remember from your high school government class.

Then there's Ms. Evans concern that prosecutors be able to "procure and execute these warrants in the most expeditious way possible..." No one's talking about "reviewing" warrant applications here. Nope, we're talking about finding judges who will sign off on every piece of paper that comes across their desk so that the police can strap down motorists for forcible blood draws.

You can color this anyway you want, and if you choose to drink the Kool-Aid they're serving on the 6th floor of the Criminal (In)justice Center, I guess you find nothing wrong with the notion that the HCDAO is out there actively recruiting judges to sign off on blood warrants so that they can coerce motorists to submit to breath tests under the threat of forcible blood draws.

The true believers have no love for the Constitution and no understanding of the rights it protects.

Tuesday, August 17, 2010

Going for the gut

We've all heard through anecdotal research that most jurors make up their mind on a case after opening statements. Is it because one attorney or the other was that much more eloquent or persuasive in his opening remarks? Is it because jurors pick the side they like more? Is it because jurors are making moral judgments about what's right and wrong and shaping the stories and facts to fit their mindset?

Or is it because the jurors are disgusted about something?

Dr. Jonathan Haidt, a psychologist at the University of Virginia, proposes that what we pass off as moral judgments are really the result of "moral emotions" such as disgust, anger and compassion.
Psychologists like Haidt are leading a wave of research into the so-called moral emotions — not just disgust, but others like anger and compassion — and the role those feelings play in how we form moral codes and apply them in our daily lives. A few, like Haidt, go so far as to claim that all the world’s moral systems can best be characterized not by what their adherents believe, but what emotions they rely on.
In other words, our reactions are based on our gut instincts. How many times have we been told to "follow your gut?" How many times have we told clients to "go with their gut?" Of course the research is controversial and some have questioned the basic premise.

Philosophers and theologians have spoken about the evolution of our moral code and how the development of a sense of right and wrong is what separates us from the "baser" species. What if the development of that moral code had more to do with the evolution of our digestive tract? Does our "universal" sense of right and wrong end up different had early man been less social or had a different diet?

Dr. Haidt also points out that we are unique in the animal kingdom for our feelings of "disgust" toward certain foods, items or events. While other animals dislike the taste of certain things, we find ourselves disgusted at the notion of eating things such as brains, testicles and other innards.
The origins of disgust remain somewhat mysterious, but it may have first arisen when the diet of our hunter-gatherer forebears began to contain more meat — rotten meat is much more dangerous than rotten vegetables, and even today we’re far more disgusted by things that come from animals than things that come from plants. But because disgust worked so well at getting people to steer clear of certain dangerous food — as well as the outward signs of contagious disease in other people (sores, pus, and the like) — Haidt and others hypothesize that as human society grew more complex, disgust also began to serve a social function.
Partly through biological selection, partly as a taught behavior, disgust became a disciplinary mechanism to steer us away from dangerous behaviors. Understanding that betrayal or child rape is wrong is one thing, but actually being sickened by it is a more powerful form of social control.
Think of the words a prosecutor uses during their opening statement to describe what your client is accused of doing. What emotion is the prosecutor trying to elicit? Is the prosecutor trying to create a sense of disgust in the jury box?

Dr. Haidt has even conducted research in which people were subjected to disgusting odors and asked their opinions on a variety of moral issues. The results are astounding.
Haidt has done studies in which he primed people to feel disgusted and then asked them to judge the morality of certain actions. In one study, he had some of his unfortunate test subjects respond to four vignettes related to moral judgment while sitting in a room that had been infused with an ammonium sulfide “fart spray.” The stink, he found, made them harsher judges, not only of body-related questions like whether first cousins should be able to have sex and marry, but whether people should drive to work when they could walk or whether a movie studio should release a morally controversial film.
Just think about the process by which a juror finds himself in that jury box. First he's told to report to a central location at 8am and made to wait. Then a bailiff comes and takes a group of jurors to another room where they stand inside a square taped off on the floor. The juror is no longer known by his name but is merely a number on a piece of paper. After standing in that square the jurors are taken to the courthouse (passing through yet another metal detector) where they stand about in the hallway until someone decides to bring them into the courtroom. After being seated they are then questioned by two people they've never met who ask them some very personal questions -- and who generally address them by number, not by name. Only after enduring this process is the juror seated in the box.

What emotions would you imagine that juror is feeling as the prosecutor begins his opening statement? And how might those emotions affect any moral judgments that juror might make during the trial?

A judge voices her concerns

Judge Susan Criss of Galveston County's 212th Judicial District Court left the following comment on my Facebook page with regard to Thursday's post "Vampires on the Bench" ...
[P]lease explain how the defense att[orneys] participated. A few years ago our judges were asked to participate in this also. Because of my concerns about the constitutionality of this I have never participated in it. The only two judges in our county who have are both GOP. The DA's do have to communicate with us about getting warrants and our availability when they need them so I am not bothered by the sending of the email. I appreciate the intent is [to] get drunks off the road but do not agree with the legalit[y] of the program.
I appreciate the need for officers to be able to contact judges to request warrants after hours. In some instances that means having an official after-hours judge to review warrant applications and in other cases it involves the police finding a "friendly" judge to sign a warrant.

My problem with the e-mails is two-fold. First, this is not an e-mail from the Office of Court Management to judges to find out who is available to review warrant applications, these are e-mails from the Harris County District Attorney's Office to find judges who are willing to "review" warrant applications on "No Refusal Weekends." Since when are the judges and prosecutors supposed to be on the same team?

Secondly, everyone is aware of the game and everyone is also aware that the entire purpose of this procedure is to obtain a blood sample, by force if necessary, to make it easer to convict a motorist who exercises his right not to blow into the state's breath test machine. In order for this legalized coercion to work, there must be judges available who are willing to disregard the law and order forcible blood draws for an offense that is one step removed from a traffic ticket.

I do want to take a moment to thank Judge Criss for her comment. It's nice to see that there's at least one judge who has some questions about the legality of "No Refusal Weekends."

Monday, August 16, 2010

An outsider's perspective on drunk driving

Michael Landauer, assistant editorial page editor for the Dallas Morning News, makes some very astute observations in his most recent blog posting "Mixed feelings on how to handle DWI."

Like most folks, he took MADD's position:
Before I ever knew anyone who had a DWI, I more or less took the MADD line, that severe punishment was best. As a copy editor, I was taught that you do not call DWI crashes "accidents." This is a MADD thing. They say there is nothing accidental about it, and calling it an accident implies that no one is to blame, but, of course, someone was reckless. 
That passage shows just how prosecutors and advocacy groups can use language to influence jurors (or, as in MADD's case, potential jurors). A complaining witness is a "victim." An accident is a "crash." These words are used to change the tone of the debate.

But then he met someone who was charged with (what we call in Texas) intoxication manslaughter and his attitude began to change.
Should my friend go to prison? That was a question she struggled with. As her lawyers worked like heck to keep her out of prison, she wasn't so sure she didn't belong there. In some ways, I think, she wanted to be punished. But when a driver came forward and stated that the 18-wheeler being passed sped up in an effort to mess with the passing car, the case kinda fell apart. It seemed that a lot of people on the road that day did some stupid things that led to that crash.
Now I don't think Mr. Landauer is downplaying the loss of life in the accident and I don't think he's condoning his friend's behavior. He is correct, however, in pointing out that just because one motorist was, or might have been intoxicated, it doesn't mean that he or she was responsible for the accident.

Mr. Landauer's solution isn't to do away with the DWI laws in Texas, but he does advocate that we rethink how DWI's are handled.
I think there are countless ways we can be reckless on the road, but I am leery of backing off the DWI laws. For one thing, many aspects of the current law have had a great social impact. It is so taboo now to drink and drive, and that would not be the case if it were not for the fact that a DWI can follow you around for years. If allowing deferred adjudication would make that more possible, I'm OK with that. But I also think we need to mandate more use of breathalyzer technology for those on probation. And more counseling options, too. Not everyone is an alcoholic who gets caught DWI, but certainly they need to step back and consider the recklessness of their behavior. There are several ways to get at this issue that don't involve throwing people in jail.
I may not agree with everything Mr. Landauer proposes, but I do agree with him that we don't need to loosen up the DWI laws in Texas. I support drunk driving laws. I have a wife and two little girls and I worry about them being out on the road. I think the police should be more judicious in how they apply the law and I believe prosecutors need to realize that a "one size fits all" solution is no solution at all.

I think it's time for the legislature to sit down and discuss the DWI laws in Texas in a rational manner without the election year bombast. For the most part, motorists who are arrested for suspicion of DWI, regardless of how their case is resolved, don't pick up another DWI. The law needs to put the seriousness of the crime into proper perspective and take away the scarlet D that is now pinned on the lapels of motorists who have been convicted.

We need DWI laws. We need sensible DWI laws.

What are they hiding?

Last month I filed a request under both Chapter 552 of the Texas Government Code (Open Records Request) as well as Rule 12 of the Texas Rules of Judicial Administration for copies of all incoming and outgoing communications from judges and employees of the Office of County Court Management regarding judges volunteering to "review" warrant applications on "No Refusal Weekends."

In response to my requests, I received two letters from Judge Jean Hughes, the presiding judge of County Criminal Court at Law No. 15 telling me that the material I requested was exempt from disclosure under Rule 12.5(f).

Texas Rules of Judicial Administration, Rule 12.5:
The following records are exempt from disclosure under this rule: 
(f) Internal Deliberations on Court or Judicial Administration Matters. Any record relating to internal deliberations of a court or judicial agency, or among judicial officers or members of a judicial agency, on matters of court or judicial administration.
Now Rule 12.2(d) defines a judicial record for purposes of this statute:
Judicial record means a record made or maintained by or for a court or judicial agency in its regular course of business but not pertaining to its adjudicative function, regardless of whether that function relates to a specific case. A record of any nature created, produced, or filed in connection with any matter that is or has been before a court is not a judicial record. A record is a document, paper, letter, map, book, tape, photograph, film, recording, or other material, regardless of electronic or physical form, characteristics, or means of transmission.
The electronic and written communications were "made" by the court during its regular course of business. The e-mails were sent and received via the judges' county-provided e-mail accounts and did not relate to any specific case.


Black's Law Dictionary defines "deliberation" as:
The act of carefully considering issues and options before making a decision or taking some action.
Might a judge "deliberate" when asked to volunteer to "review" warrant applications on a "No Refusal Weekend?" Maybe. But, if the e-mail is addressed to the judge and he or she sends back a reply agreeing to volunteer have their been an internal deliberations? And with whom would the judge deliberate?

While a judge is a "judicial officer" per Rule 12.2(c), e-mails between the judge and the DA's Office are not records of internal deliberations nor are they communications between judicial officers or members of a judicial agency. 

They may be embarrassing, they may shine a little light on the relationship between judges in Harris County and the Harris County District Attorney's Office and they may make the public a little skeptical about the independence of the county judiciary.

The one record that was released is an e-mail dated July 19, 2010 from Ms. Nancy Hennessy of the Harris County Sheriff's Office to Ms. Blanca Villagomez, the chief hearing officer in Harris County.
We are conducting a DWI/no refusal initiative this weekend on Saturday, july 24 from 8p-4a in the northwest part of the county. It will be a multi-agency initiative with approximately 80 units participating. I have confirmed a blood draw location at jersey village pd. I also asked if one of their municipal judges could be made available for blood warrants but at 125/hr, I was told no. I asked around and was told that you were the person I needed to speak to to see if the county could provide a judge at the JV location for blood warrants or if arrangements could be made to have 2 judges on duty at IPC so a judge would be available without getting caught up in dockets. Could you provide me any information or direction as to who I would need to contact.
Thanks in advance.
I'm not sure if Jersey Village said they wouldn't provide judges for $125 an hour or if Harris County decided they wouldn't pay $125 an hour for a judge to "review" warrant applications. Whichever it is, the fact that the Sheriff's Office is communicating directly with a judge who determines whether there is probable cause to arrest is disturbing.


Friday, August 13, 2010

Oh, look what I found in my notes!

According to this report from KPRC-TV, seven officers with the Houston Police Department were expelled from an accident investigation class for cheating. It turns out the seven officers (three of whom were sergeants) had copies of quizzes and the final exam from last year's class. Captain William Staney, head of HPD's vehicular crimes division claimed (with a straight face) that it was a "mutual decision" for the officers to "leave" the class.

And I suppose it was a "mutual decision" when the University of Houston and basketball coach Tom Penders chose to go their separate ways.

Apparently HPD didn't want to cough up the funds to provide textbooks for their officers so the department gave them copies of notes from last year's class. Why copies of quizzes and the final exam were in their notes is a mystery.

So we have seven members of the HPD who had no compunction about cheating in an accident investigation class -- what does that say about the manner in which they conduct themselves in uniform? If lying and cheating is condoned in the classroom, what about out on the street? Or in the courtroom?

Thursday, August 12, 2010

Vampires on the bench

"Thank you again for agreeing to help out with the Holiday No Refusal program. I know that you've been very generous with your time in the past, and I'm trying to "share the opportunity" with as many people as possible so that we don't abuse those Judges who haven't needed the arm-twisting to help! I'm also working to find a long-term solution that doesn't impose on the county court judges.
"At any rate, the short-term dictates that I stick with looking for volunteers...
"Is there any chance that tomorrow night the 12th is convenient? If not, how about next Thurs, Fri or Sat?"
E-mail from Assistant District Attorney Catherine Evans to County Criminal Court at Law No. 14 Judge Mike Fields, dated 12/11/2009.
That's right, the Harris County DA's Office is looking for "volunteers" to sign pro forma search warrant applications so that the vampires patrolling the streets can strap you down and draw your blood. What's going on here?

The excerpts in this article were obtained via an open records request to the Harris County District Attorney's Office for all incoming and outgoing communications between employees of the Harris County DA's Office regarding judges volunteering to review warrants on No Refusal Weekends.

Is a neutral and detached magistrate as much a figment of our imaginations as the Tooth Fairy? Why is the DA's office put in charge of assigning judges to "review" warrant applications on No Refusal Weekends? Apparently there's no need to bother keeping up the charade of an independent judiciary in Harris County.

The No Refusal Weekend is a joint law enforcement effort to emasculate the Bill of Rights; the judiciary should not be playing a role in this mockery of our Constitution. They certainly shouldn't be exchanging e-mails with prosecutors on what nights work best for them. Somehow I'm not thinking any judge who might dare to question the legality of this fiasco is going to be on Ms. Evans' e-mail list.
"I am the new Chief of the Vehicular Crimes Section and will be coordinating the No Refusal Weekends. I understand that you are looking for information about future dates. HPD requested to run No Refusal on a number of high volume nights, and Judge Lykos has agreed to pay for ADA's and a nurse to staff those nights. We will be running No Refusal on the following days:
Thursday, Dec. 10
Friday, Dec. 11
Saturday, Dec. 12
Thursday, Dec. 17
Friday, Dec. 18
Saturday, Dec. 19
Friday, Dec. 25
Saturday, Dec. 26
Thursday, Dec. 31
Friday, Jan. 1
Saturday, Jan 2
"As you can see, this upcoming weekend is NOT part of the program. On the involved dates, from 10pm to 12am, we will be presenting the search warrants to the City of Houston Municipal Judges. I intend to approach the misdemeanor Judges about volunteering to be available by fax between the hours of 2 and 5am. If I can get volunteers, that should offer some relief to the Magistrate Judges during the high volume hours. Obviously, if I can't get volunteers, we'll have no choice but to approach the magistrate on-duty when they are not in docket during the hours of 2-5am.
"For this past weekend, we filed more intoxication charges than on Thanksgiving weekend last year but sought far fewer search warrants. My hope is that we will continue to procure good evidence by consent without having to resort to a search warrant. I am certainly looking for ways to make No Refusal Weekends as efficient and effective as possible, so please let me know if you have any requests or recommendations."
E-mail from Assistant District Attorney Catherine Evans to County Criminal Court at Law No. 15 Judge Jean Hughes, dated 12/3/2009.
Harris County prosecutors want to make forcing motorists to volunteer evidence as "efficient and effective as possible" and they are going to the judges for ideas on how to do so. Since when do the judges of Harris County work for the Harris County DA's Office? Since when do the judges of Harris County work for local law enforcement? The role of a judge is to be a neutral arbiter in a dispute and to insure that the rules of evidence and procedure are followed. Their role is not to be a partner with law enforcement and prosecutors to make it easier to prosecute and coerce pleas from their fellow citizens.

And, just as disturbing, some local criminal defense attorneys have participated in these charades -- some while working for the Harris County DA's Office and others while (supposedly) practicing criminal defense.

Wednesday, August 11, 2010

Four whom the bell tolls

The scene fades in... A lawyer walks into an unnamed courtroom on the 5th floor of the Civil Courthouse. He places his briefcase down on the table and looks down at his watch. It's a couple of minutes before 1pm.

Bailiff: What are you doing here?

Lawyer (looking puzzled): I have a hearing on an occupational license at 1pm.

Bailiff: There are no hearings today. The judge is gone.

Lawyer: At our last hearing she told us to be hear today -- and my client's license expires today.

Bailiff: You might want to go and talk to the clerk. She just left here a couple of minutes ago.

Scene fades out as lawyer leaves courtroom and heads toward the stairs.

The scene fades in...The lawyer is in the County Clerk's Office walking toward the unnamed courtroom's clerks' desks.

Lawyer (as soon as one of the clerks hangs up the phone): We've got a problem. The judge issued my client an occupational license and told us to appear in court at 1pm today. Now I'm being told she isn't here and my client's license expires today. What can we do?

Clerk No. 1 (with "deer in the headlights" look on her face looking toward the other clerk who is getting off the phone): This gentleman has a question for you.

Clerk No. 2: Can I help you?

Lawyer: Yes. The judge told my client and I to be here today so she could update his occupational license that expires today. But there is no judge.

Clerk No. 2: Sorry about that. You can come back next Monday.

Lawyer: Can we come in and see the judge one day this week?

Clerk No. 2: Nope. She only hears occupational licenses on Mondays. You want to come in next Monday?

Lawyer: Why didn't anyone notify me that the afternoon docket was being cancelled? We could have made other arrangements?

Clerk No. 2: You want to come in next Monday?

Scene fades out with lawyer banging his head against the top of the clerk's desk with Supertramp's "The Logical Song" playing as the screen blackens.

Tuesday, August 10, 2010

Expunction order? What expunction order?

In Texas, as in most states, if a person is found not guilty at trial, he is entitled to expunge all records relating to his arrest and prosecution. Chapter 55 of the Texas Code of Criminal Procedure outlines the requirements to expunge one's criminal history background. The absurdity is that the acquitted party must bear the cost of drafting and filing the petition for expunction.

The expunction order requires all govenmental parties with records related to the arrest and subsequent prosecution of the petitioner to destroy all records in their possession or subject to their control. It is as if a magic eraser has wiped the record clean.

Well, except for the private companies who purchase criminal records from the various local and state agencies and post the information on their online databases. As they update their information records that have been expunged will disappear from their database as update lists are acquired. Private entities who were not a party to the expunction litigation are required to remove the information upon receipt of a certified copy of the court's order.

At least that's how it's supposed to work. Someone might want to send the memo up the the 184th Judicial District Court in Harris County to let them know that it's a Class B misdemeanor for an individual who acquired knowledge of the arrest and is aware of the expunction order to release that information since the judge's website (hosted on the County's website) lists the names and cases numbers of persons who were acquitted at trial and who had their criminal histories expunged.

Art. 55.04. VIOLATION OF EXPUNCTION ORDER.
Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.
Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.
Sec. 3. An offense under this article is a Class B misdemeanor.

Some nightmares just live on and on.

Monday, August 9, 2010

That big white envelope

I recently received a large plain envelope from the State Bar of Texas that said personal and confidential on the front. I held it in my hand and looked at it. Did I want to open it up? It was the same feeling when you were told the principal wanted to see you.

I opened it up and there was a letter from the Office of the Chief Disciplinary Counsel informing me that a client in a civil matter had filed a grievance but that the office dismissed it. I looked up at the name of the complaining party and thought "that figures."

As I read through the grievance form my blood boiled as I read lie after lie -- and then I had to remind myself of what I tell countless clients -- "I know it's a lie and you know it's a lie; but there's nothing I can do to get that person to recant." She said that I had an odor of alcohol, seemed hungover and that I acted like I didn't know what I was doing.

Of course I guess we all need an excuse to fall back on when things don't go our way. In this particular case I was told from day one that my client had documents in their possession that would prove up everything that was claimed. And, believe it or not, those documents never materialized.

People come to a lawyer because they want something and they feel entitled to whatever that something is and some of them have a hard time understanding that if you don't have a legal basis for your claim, the best lawyer in the world isn't getting it for you.

Sunday, August 8, 2010

Be careful what you write, the feds may be watching

We all know that whatever we post out there in the aether of cyberspace will be around forever. But now we have an even bigger reason to be careful when we hit the "send" button. The Obama administration is looking to make it that much easier for the FBI to force ISP's to hand over records of your internet activity - all without the requirement of that pesky little warrant.

As it is, the FBI can force an ISP to turn over records of an individual's internet use through the use of a national security letter. An ISP receiving a NSL must provide the FBI with name and address of the account holder, length of service and toll billing records. The letter also requires the ISP to keep the government's request secret. Now los federales are seeking to add electronic communication transactional records to the list of items covered by the NSL.

Proponents of the bill claim that the addition only clarifies the information the FBI is entitled to through use of a national security letter. Only one problem, there is no definition for what an electronic communication transactional record is.

Los federales portray this as akin to the government obtaining the phone records of an individual; but without a definition for what these records are, it seems to me closer to wiretapping. Of course we hear the standard line that the government must have this power because the world is a dangerous place and law enforcement must be able to act quickly to quash terrorist plots on American soil. The only problem is sacrificing liberty in the name of security is a one-way street. Once you've given up your freedom -- you never get it back.

See also:

"The giving ISP: White House wants to ensure quick and easy warrantless FBI snooping" Citizen Media Law Project (Aug. 2, 2010)

Thursday, August 5, 2010

A little blue lie

I recently received a phone call from a former client who found out there was a warrant for his arrest. He said the officer had called his house and wanted to talk to him about some alleged crime. He asked me what he should do.

After telling him to keep his mouth shut I told him to call a bondsman and get a non-arrest bond and that once he had posted the bond to turn himself in at the jail so they could walk him through. About an hour later he called me to say that the police officer told him that he couldn't post a non-arrest bond and that he would have to turn himself in and wait to see the judge.

I told him the officer was full of shit and was lying to him. He seemed stunned to think such a thing.

To make a long story short, he posted the non-arrest bond, turned himself in and walked out of the jail about two hours later.

My colleague out in Fresno, Rick Horowitz, laments in his latest opus that our legal system is broken and wonders why we even bother to get out of bed some days. Yes, Rick, the system is broken - and it's been broken for quite some time. Everyone knows when a police officer is lying on the stand -- that's what they're trained to do; anything to get the arrest or the conviction.

Why else would our friendly neighborhood officer lie through his teeth to my client about the non-arrest bond?

Wednesday, August 4, 2010

Walking a mile in another man's shoes

Disgraced former federal judge and convicted felon Samuel Kent wants out of prison because of the humiliation, torture and horrors of the place. I don't blame him. I don't wish that existence on anyone. I do find it ironic, however, that as a judge he had no problem sentencing folks to spend years in prison and that now, as an inmate, he realizes how horrid the experience is.

Prosecutors and judges tend to throw out years in prison as if it were a gift; how many of them have spent any time in those hell holes? How many of them have been forced to spend time isolated from friends and family? How many of them have suffered the abject humiliation that prisoners go through on a daily basis?

Click here to read the motion filed by Mr. Kent.

Tuesday, August 3, 2010

Collapsing under its own weight

The City of Houston Municipal Courts handled 1.2 million cases in 2009. Of those 1.2 million cases, defendants requested jury trials in 415,297 of them. The Houston Chronicle reported that there were 415,297 jury trials at 1400 Lubbock Street last year; Houston's "leading information source" was wrong. There are seven municipal courts that handle jury trials. In those seven courts, one case, at most, will go to trial each afternoon. Not taking holidays into account, there are approximately 260 working days in a year. If we are to believe the number reported, that means each of those seven courts conducted an average of 228 jury trials a day, every weekday, for the entire year.

The number reported by the Houston Chronicle is not the number of jury trials conducted, but, instead, the number of cases set on the courts' jury trial dockets. That means each court averaged approximately 228 cases on its docket each day.

And with our city attorney doing his best to make Governor Perry look like a genius and declaring that police officers needn't bother with showing up at 8:00 a.m. and making folks sit around the courthouse all day long, the Municipal Courthouse will soon collapse under its own weight.

Now just imagine what would happen if none of those 228 cases plead out during the morning session and that every defendant in that courtroom demanded a jury trial. Imagine 227 cases having to be reset in every court every day. Sure, the new policy is ridiculous and it attempts to coerce pleas by making people sit in a courtroom all day long but to watch the entire system come crashing down is priceless.

Now if you are offended by David Feldman's latest dumb idea and think that it's just plain wrong that you are expected to be in court at the time shown on your summons but that the police can show up whenever they damn well please, then give your mayor and city councilmembers a piece of your mind:

Mayor Annise Parker
(832) 393-0800 or (832) 393-1013

Brenda Stardig
(832) 393-3010

Jarvis Jordan
(832) 393-3009

Anne Clutterbuck
(832) 393-3004

Wanda Adams
(832) 393-3001

Mike Sullivan
(832) 393-3008

Al Hoang
(832) 393-3002

Oliver Pennington
(832) 393-3007

Ed Gonzalez
(832) 393-3003

James Rodriguez
(832) 393-3011

Stephen Costello
(832) 393-3014

Sue Lovell
(832) 393-3013

Melissa Noriega
(832) 393-3005

Clarence Bradford
(832) 393-3012

Jolanda Jones
(832) 393-3006

You might even want to drop Mr. Feldman a line at david.feldman@houstontx.gov.

Monday, August 2, 2010

Can't stop the flow

Authoritarian leaders have tried for years to block the flow of information to their citizens -- Dubai is but the latest example with the announcement that web service, e-mail and messaging on Blackberry devices will be cut off starting in October. To make matters worse for those doing business in the emirates, the ban will affect tourists as well as those who receive their service through the government's cell provider.

In the old days it was fairly easy to cut off the flow of information -- erect a wall around the town and restrict access to the inner city. Since news traveled by word of mouth, the residents of the walled city had no access to the outside world.

The East German government tried to emulate the ancients by constructing a wall around East Berlin. That kept news from the outside inaccessible for a while, but walls can't block radio waves. Eventually the people behind the wall found out what was going on on the western side and decided they had had enough. When the wall came crashing down it was a reminder that barriers to information were doomed to fail.

The North Korean and Chinese governments have also put forth their best efforts to prevent their citizens from finding out what's happening outside their walls. The Chinese government realized the error of their ways when citizens were accessing the internet through Google's portal in Hong Kong (which was not censored) and threatened to cut off Google's access to the country if it didn't kowtow. Google, putting profit before right, then bowed and kissed the emperor's feet.

And now the government of Dubai has decided that not having access to the encrypted messages sent and received on Blackberry devices makes it harder for them to limit the flow of information in and out of the country. The solution? Cut it off.

When will the dictators learn that the flow of information is something that can't be stopped. Radio waves, television signals and satellite reception don't stop at artificial borders drawn on maps? Not only has technology made it easier to communicate (remember mailing letters), the barriers that limited the number of information-providers have crumbled, increasing the supply of information. Cable news networks, the internet, blogs, cell phones with internet access have made it easier both to receive and to supply information.

The same problem presents itself in the courtroom when a judge admonishes a jury not to do any research on their own -- the panelists have cell phones, internet access and television.Telling them not to use those resources to find out more about any given case is the modern-day equivalent of the Maginot Line.