Thursday, March 31, 2011

Play ball!

There are some things in life that don't need to be changed because they're perfect just the way they are. Change is fine - if by changing it, you're making it better or more efficient. Change for the sake of change, on the other hand, is not so good (see the State Bar of Texas' attempt to ram changes in the ethics rules down our throats).

Today should be a holiday. Today should be a day that is held in reverence. Today is a day of rebirth and of dreams waiting to happen. Today is Opening Day!

The only problem is, today is not the first Monday in April. In fact, it's neither a Monday nor April.

And that's just plain wrong.

It's bad enough that the Astros are opening on the road because of this March Madness foolishness (by the time the final rolls around Monday night it won't be March anymore). But now the entire world is out of whack because Bud Selig - the moron who brought us interleague play and the wildcard - decided that the World Series shouldn't be played in November.

Well no shit, sir. But it was your idea of allowing teams that couldn't even win their own division to earn berths in the playoffs. Haven't you ever heard of doubleheaders? Schedule them a couple of times a year -- that'll kill off a couple of days of the season.

I want the flyover. I want folks parachuting into the ballpark. I want to see the entire rosters of both teams (plus coaches) lined up along the foul lines. I want to hear "Play ball!" for the first time this spring. But now I have a wait more than a week for the home opener (and, please, that's nowhere near as cool as the season opener). I want to sit outside the ballpark in the sun and crush peanuts and drink a Dr Pepper with my daughter as we celebrate the beginning of a new season.

But not on a Thursday.

Reasonable doubt?

Harris County (Texas) Commissioner Jerry Eversole (we might need to start calling him Teflon) walked out of the federal courthouse in Houston, Texas on Wednesday after a judge declared a hung jury.

Mr. Eversole was charged with accepting a bribe, conspiracy and filing false tax returns.

The feds alleged that Mr. Eversole had accepted bribes from real estate developer and personal friend Michael Surface. Mr. Eversole argued that any gifts that exchanged hands had nothing to do with county business and were private transactions between he and Mr. Surface.

After four days of deliberations, the jurors (once again) informed US District Court Judge David Hittner that they were deadlocked and that there were no expectations that they could come to a unanimous verdict. After receiving the note, Judge Hittner informed the jurors that if they could not reach a unanimous verdict another jury would have to be picked and all of the evidence would have to be presented again.

In other words, he asked the jurors to do their civil duty and save the feds some money.

His exhortation was to no avail as the jurors came back after some more deliberations without a unanimous verdict on any of the counts.

As to be expected, US Attorney John Pearson announced that los federales were prepared to tee it up again in their quest to convict Mr. Eversole.

In recent weeks both Scott Greenfield and Gideon have written about what beyond a reasonable doubt actually means. The jurors in Mr. Eversole's case heard the evidence. They went back in their little room, sat around a conference table and argued for some 18 hours about whether los federales had proven each and every element of their case beyond all reasonable doubt.

They were even castigated by a judge (and, in essence, were told they were wasting taxpayers' money if they couldn't come to a unanimous verdict) and went back and argued some more. Still they couldn't reach a unanimous decision on any of the four charges.

What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn't prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn't prove beyond all reasonable doubt?

Wednesday, March 30, 2011

I'm a (true) believer

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.
Texas Code of Judicial Conduct, Canon 3(b)(6)

Oh, Murray, Murray, Murray.

Don't speak so quickly. Have you forgotten that there was a Thirteenth Apostle (the Christian equivalent of George Best, I suppose)? I'm sure if we look long and hard enough that somewhere we'll find a testament written by some guy named Murray claiming to be that long lost apostle. Maybe that's who wrote the alleged Christian texts found in a Jordanian cave between 2005 and 2007.

(By the way, Murray, I liked the old layout better. I'm getting older and it hurts my eyes. There's always Google Reader, though.)

Another Houston colleague, Eric Davis, chimed in with a defense of Judge Clinton's using the bench as a pulpit. I understand what the judge gave as his motivation to offer "Jesus time" in lieu of community service. There are too many judges out there who just line up defendants and bring out on the chain for a mass plea (about how you'd expect the Rev. Sun Myung Moon to do it if he were a judge and not a huckster whatever he is). The problem though is that Judge Clinton was imposing a religious test in determining a person's sentence. And that, no matter how "divine" the intention, is just plain wrong.

Wiping out eight hours of community service in exchange for a person writing an essay about what it means to be on probation? Excellent idea. Discussing Jesus over coffee in exchange for wiping out the rest? Not so good.

This idea that having someone read a Christian self-help book will help them turn their lives around is fairly laughable when you stop to consider that some of history's greatest mass murderers were "God-fearing" men and that the Catholic Church conspired to cover up the world's largest child molestation ring. Just because you accept Jesus Christ as your savior or because you've completed a bunch of workbooks in Sunday school doesn't mean you're a saint. And, conversely, just because you're not a Christian (which I guess would be the majority of our fellow denizens of the earth), doesn't mean you're bad.

And just what is the message in Judge Clinton's book?

The origin of all problems–family, finances, career, relationships – can all be traced back to a single source: life-dominating sin. No human remedy can cure it. But everyone can find victory over sin in the Word of God.

Yes, you can also have victory over life-dominating sin, based on two biblical principles remarkable in their simplicity:
  1. There is no human remedy for sin.
  2. The only cure for sin is in Christ.
So, unless you subscribe to these principles, you can never achieve "victory over life-dominating sin." In other words, "I'm right and you're wrong."

Mark Bennett got it right when he looked at it from the perspective of the folks who didn't get offered the "I'm a Believer" discount. I don't think either of us is being alarmist when we ask whether the 4th, 5th or 6th Amendments are safe in Judge Clinton's courtroom.

This isn't a religious debate. I'm all for whatever people need to get through each day. I happen to prefer to lace up my running shoes and run around the neighborhood before the sun rises - but that ain't for everyone.

During the course of a meeting of the board of the Harris County Criminal Lawyers Association yesterday (called for the purpose of deciding what action, if any, to take regarding this incident), a member (who had spoken to Judge Clinton at the behest of the president) decided it would be a good idea to bring his new buddy, the judge, to the meeting.

And there he was, wearing a suit with a huge cross lapel pin. A true believer. The judge said he asked selected probationers if they were men of faith. He then asked if they were Christians. If he got the answers he was looking for, he offered them some "Jesus time" instead of community service. How could he not know that wasn't right?

In the end the leadership of HCCLA tucked its collective tail between its legs and decided not to do anything. Something about massaging the judge instead of stepping on him.

Said Stanley Schneider, past president of the Texas Criminal Defense Lawyers Association:
“I think this is a man that we really need to get behind. Anyone who wants to take the innovative, and trying to do something to help people in his courtroom to succeed in life, he’s someone we need to applaud.”
Dottie Griffith of the American Civil Liberties Union of Texas (who filed a complaint against Judge Clinton) had a slightly different take:
“The idea that a judge would use the power of the bench to coerce individuals appearing before him into accepting his religious beliefs offends the Constitution and should offend all Houstonians. If true, Judge Clinton’s actions are patently illegal.”
See also:

"Judge's sentence involving Christian book causes controversy," KHOU-TV (3/28/2011)
"Reading lesson for cons was Christian book," Houston Chronicle (3/29/2011)

Tuesday, March 29, 2011

Is this thing on?

Would you try a DWI case without a court reporter? What about an assault case? A dope case? A burglary case?

Would you even consider trying a case without a court reporter present?

That's what two legislators from Houston have in mind for the municipal courts in Houston. State Senator Joan Huffman and State Representative Beverly Woolley have filed bills (SB1879 and HB3807) that would allow the Houston Municipal Courts to conduct trials with a tape recorder taking the place of a court reporter.

What's the big deal, you might ask.

A court reporter can ask an attorney, the judge or a witness to repeat a question, an answer or a ruling from the bench. A tape recorder can't. (Take a look at an ALR hearing transcript and count the number of times the transcript says "unintelligible" for an answer.)

A court reporter can ask an attorney or a witness to speak slower or to speak louder. A tape recorder can't.

A court reporter can ask the attorneys, the judge or a witness not to talk over one another. A tape recorder can't.

A court reporter takes down everything that is said while "on the record." A tape recorder only records if it's turned on.

An attorney can obtain a transcript of a hearing by contacting the court reporter. If it's a recording -- you've got to go through the court.

An attorney or the judge can ask the court reporter to pull up specific testimony for review on a motion or for cross examination. No can do with the tape recorder. (Do you really think a municipal judge is going to play back an entire tape to get the answer to one or two questions on a motion for directed verdict?)

In the justice of the peace courts if you don't get a favorable decision your client can post an appeal bond and you get a fresh bite at the apple in county court. No such luck in municipal courts of record.

The purpose of these bills is to reduce the expense of running the municipal courthouse in Houston. It was the same rationale used to tell officers they could wait until 1pm to come to court even though the citizen accused of speeding had to appear at 8am.

Revenues are down because officers are writing fewer tickets and fewer cases are being cleared because it doesn't make sense to plead out a case if you don't know if the officer will appear after lunch. Now the city's taking aim at the due process rights of the accused by axing the court reporters.

I agree that it's only a Class C misdemeanor. But it was important enough for that motorist to hire an attorney to handle the case. In Texas, that motorist has the same rights to a trial by jury as does the man accused of capital murder.

Sacrificing due process to balance a budget is inexcusable.

Monday, March 28, 2011

Paper training for judges?

What is the proper response when you have evidence that a judge has violated the Constitution in the course of suspending someone's sentence?

How do you react when a judge asks a defendant entering a guilty plea whether or not he believes in Jesus?

Do you (a) send someone to have a private heart-to-heart with the judge, or (b) file an ethics complaint? Do you accept an explanation that the judge didn't realize he was doing anything wrong, or do you call bullshit based on the politics of the folks he keeps company with?

Is it even that big a deal? We are, after all, supposedly a Judeo-Christian nation. The Founding Fathers, however, were Deists who brought a whole different perspective to the dinner table than evangelical Christians.

If you launch a head-on assault on the judge, do you risk turning the Bible-thumping Teabaggers out in greater numbers to vote for judicial candidates with R's after their names? Or is it politics be damned, it's time to take a stand?

If we make a big stink about it, do we make it harder for any clients we may have who find themselves in that court? Or, do we stand for principle?

I will say this, I find it hard to believe in this day and age that a man could practice family law and then run for a criminal court bench without having a clue that religion has no place in the courtroom. The path to the Republican nomination in Harris County is to pander to the Christian right - and that means putting God "back" in government. That dynamic isn't going to change -- the nature of our political process means that candidates on the extreme fair better in party primaries than candidates in the mainstream; in the general election, however, both candidates move toward the middle and hope that no one was paying attention to the primary season.

If a judge knows that if he crosses the line all he'll get is a chat over coffee with a defense attorney, where's the harm? On the other hand, if a judge realizes he might get slapped with an ethics complaint, he, and his colleagues, will think twice.

Maybe this situation is touchy because no one wants to be seen as being opposed to religion. I think there are some folks out there who are afraid to confront a judge because they don't want the judge to take it out on their clients. Well, if that's the case, the judge will have future complaints on his plate for acting vindictively.

Futhermore, our very presence in the courtroom pisses off judges. Just think of how efficiently the docket would move if there weren't defense attorneys pushing for better deals and challenging the legality of police conduct. Without us mucking up the works, just imagine how many cases would plead out on the first setting in plenty of time to get a round in that afternoon.

It's a matter of principle, not expediency. If a judge is going to be so cavalier as to ignore the First Amendment's prohibition of state-sponsored religion, how's he going to treat the Fourth, Fifth and Sixth Amendments?

Just like that cute little puppy that left you a present in the living room; sometimes you have to stick his nose in it.

Friday, March 25, 2011


It is our realization that we are mortal that sets us apart from the rest of the animal kingdom. As we grow up we see those around us die. The older we get, the more we are faced with our inevitable demise.

My grandmother is dying. I've know for years that we would reach this day at some point. It doesn't make it any easier, though.

She's had a series of health issues over the last few years - some more serious than others. She had to undergo surgery this past week. The after effects of invasive surgery are not kind to 93-year-olds. She's in the hospital, in pain and fighting off an infection.

I think of the things my grandmother saw throughout the course of her life and it never ceases to amaze me. Today we take the internet, satellite television, cell phones, air conditioning, indoor plumbing and air travel for granted. We sometimes forget that there once was a day when these things didn't exist. My grandmother witnessed World War II. She was around when the Soviets launched Sputnik and when Neil Armstrong landed on the moon.

My grandmother also got to see all four of her grandchildren grow up. She's had the pleasure of seeing her four great-grandchildren on a regular basis. She's lived a good life.

I received a call from my dad the other day. He wasn't optimistic and suggested I come up to Conroe because he wasn't sure how much longer she'd be around. I cleared my schedule, called my wife and we loaded the girls into the car and drove to the hospital. My grandmother was in pain from the surgery. She was being fed with a tube. Will that be the last time I see her alive? I don't know. Maybe she'll pull herself out of it and maybe she won't.

I love you, Grandmother.


A few hours after I wrote this I got a call from my mother telling me that my grandmother had been transferred from the hospital to a rehab center. Apparently she is, as she likes to say, as mean and ornery as ever.

Thursday, March 24, 2011

Washington's latest assault on the Fourth Amendment

The existence of sobriety checkpoints on our roadways is an affront to the Fourth Amendment. The very notion that it's okay for the police to stop folks without cause simply because they are driving on the road should have all of us up in arms.

Of course it doesn't because most folks are lemmings who are more than happy to hand over their liberty in exchange for the "protection" of the state.

The Fourth Amendment says that the police can't arrest you without a warrant absent probable cause. Our courts managed to screw that up by proclaiming that the police can stop a person if the officer has reasonable suspicion to believe that criminal activity might be afoot. This lowering of the standard had led to police arresting motorists for driving while intoxicated even though they can't point to a single traffic violation as the basis for the stop.

Now the Constitution has never gotten in the way of our beloved senators and representatives in Washington. Quite a few senators are up in arms over a couple of apps available for your smartphone that will tip you off to the location of sobriety checkpoints. The senators called on Apple, Google and Research in Motion to remove the apps from the online stores.

As a result, if you own a BlackBerry, RIM sold you down the river. (But you can still get a game the glorifies Al Capone.)

PhantomALERT and Trapster will provide motorists with notices of nearby checkpoints as well as speedtraps and red light cameras.

"These applications are nothing more than a how-to guide in avoiding law enforcement and they provide drunk drivers with the tools they need to go undetected, putting innocent families and children at risk." Sen. Charles Schumer (D-NY) 

Hey, Chuck, since you took that oath to uphold the Constitution, you might want to revisit the presumption of innocence and the Fourth Amendment. It's not against the law to have a drink and then get behind the wheel of a car. It's against the law to do so if you've lost the normal use of your mental or physical faculties.

Sure, there will be drivers who are intoxicated that avoid a checkpoint thanks to their smartphone -- but there will be many more drivers who are able to avoid the assault on their civil liberties and privacy. Contrary to what Mr. Schumer and his ilk believe, we shouldn't be subjected to mandatory encounters with the police just because there are some folks out there breaking the law.

Preaching from the bench

"Do I ever have a deal for you. I know you don't have time to do all that community service you will be assigned as part of your probation -- so what would you say if I were to waive it in exchange for you reading something instead? Sounds pretty good, so far, doesn't it?

I'll tell you what. If you'll read this bible study book that I've written, I'll waive all of your community service hours. Sound like something you'd like to do? It's a whole lot more convenient than having to get up and go somewhere for some forced "volunteer" work, isn't it?

Hey, while we're at it, here, before you enter that plea, do you believe in Jesus?"

I'm sure that's not exactly how the talk goes when entering a plea in Harris County Criminal Court at Law No. 4,  but it is apparent that Judge John Clinton hasn't spent much time reviewing the Establishment Clause. It is also apparent that the judge either doesn't know, or doesn't care, that there are many religions around the world that don't exalt Jesus as the earthly embodiment of God. A trifling detail, I know.

I wrote about Judge Clinton when he was still candidate Clinton prior to last November's election. Judge Clinton is a retired police officer who was allowed to attend law school while working so long as he promised not to practice criminal law. He and his wife opened up a family law practice. That's his experience. At least the black-robed prosecutors judges who went directly from the DA's Office to the bench have experience in criminal law.

When asked why he was running for the bench, Judge Clinton replied:
This race is important because I see these as gateway courts. Often, young criminals make their first stop here. We have to make a firm impression on them. We must also protect the rights of both the accused and the victims. I think that often we look beyond the victims and what they are going through when crime enters their lives. These courts play a vital role in keeping our community safe and secure.
Excuse me, your Honor, the last time I checked, the Constitution laid out the rules that protect the citizen accused. The duty of the judge is to ensure that the accused's constitutional rights are protected from the time he is approached by the police until the time the case is resolved. It is the defendant who has the right to a fair trial and due process -- not the state and not the alleged victim.

That's right, until the state has proven beyond all reasonable doubt that a criminal act has taken place, there is no victim. There is a complaining witness or an alleged victim - but that's it. Using the word victim implies that one has already decided that a criminal act took place.

He then went on to say
I am the candidate with the practical experience and the perspective we need in this court. I will always look out for victims and protect the Constitution. These courts play a vital role in protecting our community. That's something I've been doing my entire adult life.
Judge, the role of the courts is not to protect the community. The role of the courts is to ensure that a person accused of a crime is afforded a fair trial and due process of law. Protecting the community is a task assigned to law enforcement agencies, not the men and women wearing black robes sitting behind an ornate raised desk.

While Judge Clinton is forcing his religious beliefs on the people in front of him, he might want to take a look at Matthew 7:1 --
Judge not, lest ye be judged.
Let's face it, when the only qualification for a judge is whether or not there's an R or a D after their name, we get exactly what we deserve.

Wednesday, March 23, 2011

A job well done

One of my Facebook friends posted the following comment on her wall the other day:
Okay, so in court today someone said, "the only person I've seen in court that is nasty as you are is Paul Kennedy." Now I wonder...was that a compliment or a slam?!
It's not our role as criminal defense attorneys to be liked in the courtroom. Respected? Yes. Liked? Nope. Our very presence is annoying to those who wish to take away our clients' liberty. How dare we stand up and challenge the state to prove each and every element of their case. How dare we stand up and challenge the legality of a stop, a seizure or a search. How dare we stand and challenge the rulings of the court. How dare we stand in the face of all the evidence pointing to our client's guilt and enter a plea of not guilty.

So, to the unnamed person who referred to me as nasty in court -- thank you. I take that as a compliment. It's means I'm doing everything I can to defend my clients.

Tuesday, March 22, 2011

The death machine keeps a-rollin' along

So Travis James Mullis will die. Mr. Mullis will be murdered by the State of Texas as the result of his conviction for stomping his 3-month-old to death along the Galveston seawall back in 2008.

But that won't bring back his 3-month-old son. It will satisfy our bloodlust and our need for revenge. It won't fill the holes in the lives of those involved. It will satisfy our desire to be seen as tough on crime. It won't change what happened that night. It will be notch on the belt of Jack Roady, the Galveston County District Attorney.

A jury found Mr. Mullis guilty of capital murder. There was no dispute that Mr. Mullis killed his son. The only issue was intent. Well, Mr. Mullis' videotaped confession to Philadelphia police made that a moot point as far as the jury was concerned.

Mr. Mullis was born into an unhealthy life. He was hospitalized for 71 days as an infant suffering from a disease that destroys the bowel. His mother was morbidly obese with a host of other medical conditions at the time of his birth. She died when he was 10 months old. Mr. Mullis was then adopted by his mother's half-brother.

As a child, Mr. Mullis was molested by his adoptive father until he reached the age of six. Mr. Mullis then turned to molesting young children while he was teenager. He was sent to the Jefferson School in Maryland (where he lived) until the age of 15 when he was discharged right about the same time the insurance benefits ran out.

None of this excuses what Mr. Mullis did on that January night over three years ago. It does make you wonder what was going on in his head that night, though.

In the end the State of Texas will murder a man -- but it won't change a thing.

Monday, March 21, 2011

Game theory, poker and trial strategy

When playing poker, is it better to bluff when you think your hand has a chance of winning or is it best to bluff when you think your hand stands no chance of winning?

In other words, do you shove your chips into the middle of the table with a pair of jacks or with nothing better than a ace-high?

According to game theory, the optimum bluffing strategy is to bluff when you have the weakest hand.

Chris "Jesus" Ferguson has a Ph.D. in computer science and relied on game 
theory in winning the 2000 World Series of Poker Main Event.

To see why, let's pretend we are playing one-card poker with a deck of an ace, a deuce and a trey (with the ace being the lowest card). When it's your turn to act you have the choice of betting or checking. Your opponent then has the choice of calling the bet, checking behind you or folding.

Logic dictates that you will alway bet when you have the trey. You know your opponent can't beat you because you have the highest card. If you don't bet and your opponent checks behind you, you win nothing. If you bet and your opponent folds then you win nothing. But, if you bet and your opponent calls the bet, you win his bet. The only way to make any money when holding a trey, then, is to bet first.

If you have the deuce there is an equal chance your opponent has a trey or an ace. If you bet with the deuce, you will win half the time and you will lose half the time. If you check with the deuce you are forced to fold your hand if your opponent bets. If your opponent holds the trey, he will bet. If he holds the ace, he will fold. The best play, then, if you hold the deuce is to check.

On the other hand, if you have an ace, you know you have the worst hand. If you don't bet, but your opponent bets you are forced to fold and lose nothing. If you bet and your opponent bets then you  lose the bet. But, if you bet and your opponent folds, then you win his bet.

Let's say, for instance, you hold the ace. Your opponent therefore holds either the trey or the deuce. If you bet and he holds the trey, your opponent will call your bet and win the hand. If you bet and he holds the deuce he will be forced to fold his hand because he can only beat a bluff. The best play, then, is to bet whenever you hold the ace - since the only way you can win the hand is if your opponent folds in the face of your bet.

By following this strategy you will win every time you hold the trey and half the time you hold either the deuce or the ace. Your opponent will be forced to fold whenever he holds the ace or deuce meaning you have a 2-to-1 chance of winning every hand when it's your turn to act first.

Whenever your opponent acts first and bets out you will call if you hold a trey or a deuce - since you can never win calling a bet with an ace. If your opponent checks you will bet if you hold an ace or a trey, since he can only call your bet if he has a trey.

Now that's all well and good, you say, but what on earth does that have to do with defending folks accused of committing crimes? Just imagine all of your cases could be sorted like cards. Some cases are strong, others are weak and the rest fall somewhere in the middle. What is the optimum strategy for defending these cases?

According to game theory you push the prosecutor to trial on your best cases. That forces the prosecutor to evaluate the case and should, in most instances, result in dismissals (or at the very least, reductions). But you already knew that.

What do you do with the bad cases and the cases that fall somewhere in the middle (the aces and deuces)? Based on our poker game example, you push the bad cases to trial as well and try to work out the rest. Why you might ask would you do such a thing?

You do it because it's the only way you're going to get a dismissal on the worst cases. If you push a case to trial then the prosecutors have to deal with witnesses, some of whom are reluctant or live out of town, and evidentiary issues. You never know what's going to happen. Maybe the prosecutor thinks twice about whether her case is a whale (a trey) or a dog (an ace).

You should win (or get dismissals) on your best cases. The only chance you have of winning your weak cases is to go to trial. If the case falls in the middle, however, you have to weigh the benefit or winning with the risk of losing. These are the "coin flip" cases that could go either way. These cases have to be "played for value."

If you think about it, you should already be doing this intuitively. We tell some clients their cases are slam dunks. We tell others that they have nothing to lose by going to trial. It's the ones in the middle that are the most difficult to handle.


For more information on Chris Ferguson, game theory and the World Series of Poker I recommend you check out Positively Fifth Street by James McManus.

Saturday, March 19, 2011

Issue spotting

Here's your criminal law final for the semester. Who could you charge and what would you charge them with?

Friday, March 18, 2011

Artificial reality

Artificial turf in front of the Harris County Civil Courthouse. What a perfect metaphor for what happens in trial.

In trial an action is deconstructed before our very eyes and ears. That same action, or a reasonable facsimile, is then rebuilt through testimony and physical evidence. But few, if any, of the actors really know what happened. Memories fade. We speculate. We look for patterns that we can plug what we see and hear into to try and make sense of it.

If you ever speak to artificial intelligence gurus they will tell you that the key to building a more intelligent machine is to develop pattern recognition algorithms so that the machine can make assumptions based upon the context of the information fed to it. That's how our brains work. We see part of a picture or part of a word and we fill in the blanks based on the context. Most of the time we're right -- but sometimes we're wrong.

Witnesses "refresh" their memories by reviewing documents prepared by someone else sometime after the events occurred. They testify in absolutes. Let's face it, most of us don't remember what we had for dinner two or three nights ago -- but witnesses will testify as to exactly what happened one night over a year ago based upon a casual glance.

The attorneys have an agenda. We ask questions that we know will give us the answers we need to fit into our theory of the case. We don't want a witness rambling on about what they saw, heard or thought they saw or heard.

We take the raw earth and we construct our own structure atop it. A structure that may or may not bear any semblance to reality. We then expect six or twelve folks plucked off the street to make sense of what happened and render a judgment as to who's at fault or who acted badly.

What happened on the night may be fact. But what we see and hear in the courtroom is anything but.

Thursday, March 17, 2011

Still a bad idea -- even with a fancy name

Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?

Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:
Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.
Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.

In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.

The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.

Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.

Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.

That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.

We should never do anything to lessen that burden. That could be you on the other side of the v. one day.

Wednesday, March 16, 2011

At what point does a budget crisis morph into a constitutional crisis?

According to an article in this week's Texas Lawyer, the bickering between Demopublicans and Republicrats over funding the federal government has put a stop to the payment of vouchers for attorneys taking appointments in federal court.
"Notices prominently displayed on the websites for the Northern District of Texas and the Western District of Texas let lawyers know that the two-week continuing resolution President Barack Obama signed into law extends federal funding until March 18, 2011, but it only provides enough funding to pay for vouchers that were processed but not paid during a recent suspension. 
The government will be unable to pay vouchers received after March 7, 2011. the notices on the Northern and Western Districts state that 'all vouchers that are submitted will be paid when funding is available.'"
At what point does this funding crisis infringe upon an indigent defendant's right to appointed counsel? At what point to private attorneys decide not to take on new federal appointments because of the uncertainty of getting paid?
"There is no doubt in my mind that this development will discourage criminal defense attorneys from accepting criminal appointments in the federal justice system going forward. We have overhead, we have staff, we have rent, we have families, we have health insurance, and to ask a private practitioner to forgo payments for services rendered for an indefinite period of time is untenable." -- David Finn, Dallas criminal defense attorney
The federal courts rely on private attorneys to take on cases so that the federal public defenders aren't swamped with too many cases. Without private attorneys willing to take on federal appointments, los federales would have to increase the number of public defenders -- something that is more costly than doling out cases to private attorneys.

Of course it doesn't help that there is no effective lobby for indigent defendants across this country. My guess is that, give a choice, most Americans would cut back on funding for indigent defense before cutting back on any programs near and dear to their hearts.

But this isn't just politics as usual. We're talking about our Sixth Amendment right to counsel - a right that belongs to all of us, regardless of our economic or social status.

Go big, or go to the big house

While 16 employees of the City of Houston's public works department face criminal prosecution for allegedly stealing copper, brass and other scrap metal from city work sites, a handful of state legislators have profited handsomely from windstorm insurance fees and commissions.

The city workers allegedly took scrap metal from work sites, in city-owned trucks, and sold it at area scrap yards. If the allegations are true, those workers defrauded the citizens and taxpayers of Houston by siphoning away revenue that could have been used to fund city services.

The state legislators, who oversaw the insurance industry in the state, made their money either by selling windstorm insurance to homeowners or through litigation over damage due to Hurricane Ike. The vice-chair of the House Insurance Committee, Craig Eiland (D-Galveston) picked up $627,000 in legal fees as the result of a class-action suit filed by homeowners who lost everything. The head of the joint committee overseeing windstorm insurance, Larry Taylor (R-Friendswood) made $390,000 in commissions for selling windstorm policies between 2006 and 2010. Todd Hunder (R-Corpus Christi) who used to be a lobbyist for the windstorm insurance industry made $65,000 mediating windstorm cases and another $8,750 for other cases.

The city workers will be prosecuted. The legislators will be wined and dined by lobbyists. The city workers face jail time. The legislators will attend fundraisers. The city workers thought they could game the "system" - they were wrong. The legislators thought they could game the system - they were right.

Tuesday, March 15, 2011

The NFL's spring of discontent

While I do some legal work for a local teacher organization, I would never pretend to be a labor lawyer. I have a basic understanding of the process by which the local school district goes about screwing its employees dismissing teachers, but that's about as far as my knowledge extends in that field.

Having made that disclaimer I am quite intrigued by the machinations of the NFL owners and the players in their ongoing negotiations - or whatever you choose to call it at this time. The owners, most of whom have never seen a local government they wouldn't attempt to fleece, claim the players were negotiating in bad faith and that they intended to decertify the players' union all along. The players, many of whom seem to have forgotten how us reg'lar folk live, point to the television contract in which the owners agreed to less overall money in exchange for a guaranteed payment in 2011 whether or not there was any football.

With the NFLPA decertifying itself and the players filing suit in federal court arguing that the NFL is violating anti-trust laws, how on earth can the parties come to a new agreement?

If the players' union isn't a union anymore then how can their be a new collective bargaining agreement? If the NFLPA is now a trade association, how does that give it the right to bargain on behalf of the players? Wouldn't that mean the NFLPA is a union? And, if it's a union, the lawsuit filed by the players is a nullity.

And what kind of a union signs off on agreements that benefit the few at the expense of the many? I don't know of too many "union shops" in which each employee negotiates his or her own deal with the employer. I don't know of too many "union shops" in which the union agrees to a wage scale that pays new workers an obscene amount of money before they've ever worked but doesn't protect older workers from being laid off for no other reason than they're older.

On the other hand, the owners were beyond stupid not doing themselves any good by giving money back to the networks and DirecTV in exchange for guaranteed income in 2011. How could anyone think that was anything more than a blatant showing of bad faith on the part of the league?

As to the division of the booty, the league and the owners are telling us constantly that building new stadiums benefits local economies by creating new jobs and the like. Once again I must ask, if that's true, why can't the owners find private investors who are willing to plop down the bucks for the owners' new playpens? Why are these owners, who profess an undying love of capitalism, so insistent that state and local governments fund their stadiums?

Take a look at the area surrounding Reliant Stadium in Houston. Anyone who's been here for the past 20-30 years will tell you that South Main looks as rundown and seedy now as it did back in the 1980's. The new stadium did nothing for the economy. There were no benefits. It just means that we financed a fancy new (antiseptic) building so that a (very) rich man could stuff his pockets with more cash.

Now I'm not going with the "a pox on both your houses" attitude in this matter. My sympathies are more with the players - they're the ones everyone's paying to see and they're the ones risking permanent injury and disability every time they step out onto that field.

Monday, March 14, 2011

Reading, writing and citing

Add Texas State Senator John Whitmire (D-Houston) to the growing chorus of voices calling for school districts to stop issuing Class C misdemeanor citations to students for disrupting class and truancy.

According to Sen. Whitmire's op/ed in Friday morning's Houston Chronicle:

Despite evidence that Class C misdemeanor ticketing does little to change student behavior, the practice is widespread in our public schools. According to a recent report released by the public interest law center Texas Appleseed, more than 275,000 non-traffic tickets are issued annually to juveniles in Texas - many for low-level misbehavior commonly ticketed at school. 
Appleseed's research shows that minority and special education students, who are at greatest risk for school dropout, are being ticketed at higher rates for low-level, non-violent offenses. 
In a recent legislative address, Texas Supreme Court Chief Justice Wallace Jefferson made an important point: 
"More than 80 percent of adult prison inmates are school dropouts. Charging kids with criminal offenses for low-level behavioral issues exacerbates the problem." This is a warning worth heeding.

The problem is out of control in the Houston area. According to Sen. Whitmire, over a five-year period, Dallas ISD issued citations to 1,200 students while during the 2008-2009 school year alone, Houston ISD issued over 5,700 citations.

There is absolutely no need to drag young children into the criminal (in)justice center. If we stay on this path we are only socializing our children that their place is in the courtroom. It's time that school districts take back responsibility for disciplinary matters in schools. Schools should look at their behavior modification techniques and fine tune or change them if necessary. School district police should be trained to de-escalate situations instead of pulling out the ticket book. School districts should look to youth courts allowing peer-based solutions to behavioral problems.

Friday, March 11, 2011

Man v. Nature? I'm putting my money on nature

Make no mistake about it, as this video indicates, we are just passengers on this ride called earth. We will not destroy the earth through our wanton wastefulness and pollution - we will destroy our habitat and be the tools of our own demise. Mother Earth was here long before us and will be here long after our time is up.

Humiliation for the sake of what?

I had to take a detour this morning to the Family Law Center to wrap up a divorce case. As I approached the courthouse I saw a man walking down the sidewalk carrying a sandwich board. On the back of the board was the message "Dead Beat Dad."

My curiousity was piqued. I approached the man and asked him whether a judge had ordered him to wear the sign. He said yes.

The front of his sign stated that Judge James Lombardino was behind it.

I didn't know anything about Judge Lombardino. Seeing as how I didn't recognize the name I figured he must have been one of the Republicans swept into office this past November. So I decided to look him up on the internet.

Wouldn't you know it -- he promoted himself as being the "Conservative" in the race. (As an aside, if anyone can tell me why being conservative has anything to do with sitting on the bench, please let me know.) He aligned himself with such nut jobs as Dan Patrick and Ted Poe. And then the bell went off. When he sat on the bench, Ted Poe was known for shaming those who came before him.

In his blog Res Ipsa Loquitor, Jonathan Turley wrote about Ted Poe all the way back in 2005:
As elected officials, state judges know that few things please the public as much as hoisting a wretch in public. One Texas state judge, Ted Poe, was known as “The King of Shame” for his signature use of punishments like shoveling manure. Poe said that he liked to humiliate people because “[t]he people I see have too good a self-esteem.” Poe was so popular for what he called “Poe-tic Justice” that he literally shamed himself right into Congress and is now serving as a member of the House of Representatives.
And just what purpose is served by shaming someone? Does it stoke the ego of the judge? Does it allow a judge to feel better about himself because he's embarrassed someone else? Does it change what happened?

I much prefer Harris County Criminal Judge Larry Standley's approach. Instead of trying to humiliate someone who comes before his bench pleading guilty, Judge Standley treats the person with respect. He will tell someone they might be guilty of something but they shouldn't be ashamed. He will tell them to walk out of the courtroom with their head held high.

I don't know the name of the man ordered to walk up and down the block in front of the Family Law Center for four Fridays. I don't know the details of his case other than he was behind in his child support payments. I do know that Judge Lombardino's idea of "justice" doesn't change the fact that the man was behind in his payments.

It shows that Judge Lombardino is a very petty man who is more concerned about stoking his ego and drumming up support for the next election than he is about doing what's fair and equitable. Judge Lombardino and other judges who dole out humiliation from the bench are nothing more than black-robed bullies.

Thursday, March 10, 2011

Emotion and the presumption of innocence

So the Harris County DA's Office has egg on its face because a woman charged with six counts of reckless injury to a child and three counts of child abandonment up and flew back to Nigeria before she could be arrested. Jessica Tata is accused of leaving a household of children in her "day care" center unattended while she ran errands. During her absence a fire broke out and four of the children died.

It's a tragedy. There's no other way to describe it. And, if the allegations are true, Ms. Tata's conduct was beyond inexcusable.

But, she's only been charged. She's not been convicted.

That means that Ms. Tata is innocent unless the state proves her guilty beyond all reasonable doubt. She wasn't charged with anything at the time she boarded that plane back to Nigeria. She had every right to leave.

You see, sometimes the presumption of innocence can be hard to swallow.

Unless the police could muster probable cause to believe she committed a crime, they couldn't place her under arrest. Everyone seems to want to blame Pat Lykos or the fire marshall or someone for allowing Ms. Tata to leave the country. I don't think anyone's to "blame" for it because I don't think there's anything that you can blame on anyone in this case.

What should we do? Lower the standard of proof needed to arrest someone? Lower the standard just for suspects who aren't citizens of these United States? What about if a child is injured? Just what bad law do you propose we enact because something distasteful happened?

Maybe, just maybe, the "system" worked in this case. Maybe, just maybe, law enforcement dotted their i's and crossed their t's before trying to make an arrest. Maybe, just maybe, someone did not allow the emotion of children dying cloud their judgment when it came time to decide how to proceed.

Maybe this case is the perfect test of how deeply ingrained our belief in the presumption of innocence is. Is it better than one guilty person go free than that one innocent person is punished? How about ten guilty people going free? One hundred?

Jessica Tata is not guilty of anything. In fact, right now, she's innocent.

Wednesday, March 9, 2011

Jack's back?

My brain is mush. I'm completely unmotivated. I'd rather be lounging in the backyard with a book a glass of iced tea.

Four days in trial will do that. For four days (plus the weekend) I was focused on one thing. I was listening, writing, consulting, counseling and doing a lot of arguing. I got up at 3:30 Tuesday morning to prep for the final day of trial. I didn't have anything to eat for twelve hours.

Phone messages stacked up. Emails backed up.

On the way home from the island last night I decided to get back in touch with my Irish roots. I needed sustenance of the type found in my ancestral homeland. So I stopped off at that bastion of Gaelic gastronomy -- McDonalds -- and this is what I saw.

Monday, March 7, 2011

There are no balancing tests in criminal defense

This past Thursday I began a trial in a DWI case that I expected to take two days. I was a little bit off. We're not even close to being done. The state has yet to rest its case. We have new evidentiary matters to litigate. I spent most of the weekend holed up at my office researching case law, drafting briefs and reworking my cross examinations of the officers involved.

A friend of mine thought I was spending too much time working and not enough time playing and he posted the following comment on my Facebook page:
Work/Life = balance?
It made me think. Now I know that both Brian Tannebaum and Scott Greenfield have written about this on numerous occasions but I figured I'd add my two cents to the conversation.

In a perfect world there would be much to gain by balancing work and fun. But we don't live in a perfect world. If you've got a 9-to-5 job working for someone else then you can probably leave your work at the office and get to it the next day you show up to work. Hell, if you're a transactional lawyer you can get away with it.

I know it's a strain at home when I'm spending my weekends and nights at the office. It's not an easy task to raise two girls by yourself because your husband is working 60+ hours a week. Today would've been a great day to fire up the smoker and do a rack of ribs or a couple of chickens. It was a beautiful morning to cut the grass - or to till up the soil for this spring's garden.

But, if you found yourself before a jury facing criminal charges, would you want a lawyer defending you who is working with his life coach on how to balance the demands of work and home or would you want the lawyer who will spend every waking minute looking for the best way to handle every situation that might arise during trial?

I can be a real bear while I'm in trial. I'm short with people, I'm distant and I don't have any patience. Don't try to get between my client and me during trial. There's no room there and it's going to end badly.

No, I don't even attempt to balance work and home when I'm in trial. Does that make me a lousy husband and a bad father for a few days here and there? Probably.

Defending your constitutional rights and civil rights is not a 9-to-5 job. It's a commitment that takes a lot of time, a lot of energy and, in the end, doesn't always pay all that well. It's what I do and I'm damn proud of it.

Next weekend I can fire up the smoker and work in the yard. Right now I've got more important things to do.

Saturday, March 5, 2011

Holy piece of junk, Batman!

There were some folks who thought I was a bit off the mark when I dared to criticize HPD's BATmobiles. Turns out I was right.

We've got vans with wiring problems that renders the breath test machines inoperable. The air conditioning doesn't work in one van and that's not good for a machine that's temperature sensitive. Yep, that's how we take care of our "instruments" here in Space City.

The police won't even acknowledge the problems to the Harris County District Attorney's Office -- of course that cat's out the bag by now. Heaven forbid folks find out that the money used to purchase and maintain (sort of) the BATmobiles might as well have been used to light the charcoal in the grill.
The lieutenant was worried about having to, quote, "explain what these problems can do to pending court cases."

"The lieutenant may think there's a problem, but I don't see that there's a problem," Driskell said.

And the DA's office has never been told of any of the maintenance problems we've uncovered.
"It's not that we're trying to hide it, but I don't see a need in telling them that. If they wanna know that, we'd be glad to share that information," Driskell said.
It's not about getting drunks off the streets. It's about raking in that grant money. We're churning and burning, baby, just send the check. The DPS is in on the scam, too, charging motorists $3,000 for a DWI conviction. Budget shortfalls -- let's just increase the user fees on our roadways. Just think of all that fine money and surcharge payments.

But it's all right because it's all in the name of public safety. Isn't it?

Friday, March 4, 2011

Taking a stroll down by the stream of consciousness

So here I sit at my wife's computer in her study because I'm tired of going back to the office every night. I'm working on my opening statement for tomorrow morning. After being gone for over 12 hours today, the last thing I wanted to do was drive back to the office after I put my girls to sleep. So I did my research on my phone while sitting at the dinner table after cleaning the dishes.

It's amazing to me that my little smartphone has more computing power than the first Apple IIe my dad bought 26 years ago -- and for a fraction of the price. My phone doubles as my calendar and scanner. I can look up any provision in the Texas Penal Code, the Transportation Code or the Code of Criminal Procedure in an instant. Need some quick legal research? There's always Google Scholar in my bookmarks.

It hurts my brain to think about how attorneys practiced law before computers. I can't imagine having to have type every motion or pleading -- even those you used in most cases (the "throwdowns" as we say). Of course, as Brian Tannebaum and Scott Greenfield are wont to point out -- it's not the technology that makes the lawyer. A good lawyer still has to know what the hell he's doing in the first place. If you don't understand the 4th Amendment then it doesn't matter how many toys you have...

It's all in how you use it. Why did that guy buy a Porsche and then proceed to drive the speed limit down Memorial Drive? If you're going to drive it like that, you should've saved your money and bought a Malibu or a Focus.

At the end of voir dire this afternoon I had a lady in the panel ask me why I kept referring to the prosecutor as the "gummint lawyer." It was all I could do to keep a straight face. I mean, I can't reveal all my secrets, can I? I eventually explained to the lady that it was because she was a lawyer for the government.

I love what I do. The challenge of finding any escape from a hopeless case appeals to me. But it carries a heavy burden. We like to sit down and tell war stories over a few cold ones - the more outrageous, the better. It seems like a game at times. But then you suddenly realize that the client sitting next to you at the defense table is a real person and the consequences of a conviction are very real. It's sobering to look into your client's eyes and see the fear of what might happen.

And no little gadget can make that feeling go away.

Now it's time to get back to work. My client's depending on me.

Wednesday, March 2, 2011

The return of the boys of summer

The crack of the bat. The smell of the grass. The sights and sounds of summer have returned. The one sport that faithfully follows the ebb and flow of our lives is back. Sure, the young kids are ignoring it and fewer people are watching it - but baseball is still America's game.

Just as we have black letter law and the common law; baseball has its rulebook and its "unwritten rules" governing everything from stealing signs to celebrating a home run to lighting your teammate's shoes on fire. Just remember that it's okay to steal signs if you're standing on second base, but never, ever turn around and look at the catcher if you're standing in the batter's box. If you do, the next one is coming at your head.

This spring is a little sadder than the past because the great Duke Snider passed away this past weekend. For those of y'all unfamiliar with Mr. Snider - he was the centerfielder for the Brooklyn Dodgers in the 1940's and 50's. As great a ball player as he was, he was never better than the third best centerfielder in the Big Apple behind Willie Mays of the Giants and Mickey Mantle of the Mets.

Pull up a chair and lend an ear to "Talking Baseball" and get yourself ready for the Boys of Summer.

Lone Star State turns 175

In a sleepy little town on the banks of the Brazos River, while Santa Ana's forces laid siege to the Alamo, 59 men met and declared Texas independent. On March 2, 1836, the Republic of Texas was born.

The Texas Declaration of Independence was modeled after Thomas Jefferson's declaration - spelling out the role of government and listing the grievances the Texans had with Mexico. George Childress is generally credited as being the author of the document.

Mr. Childress was born in Tennessee in 1804 and crossed the Red River into God's country in December of 1835. In 1841, after several unsuccessful attempts to establish a law practice, Mr. Childress killed himself by slashing his abdomen with a bowie knife.

So, raise a glass of iced tea and wish Texas a happy birthday.