Friday, April 29, 2011

Feel free to ignore the alarms

If you're putting up a notice telling everyone it's a fire drill -- just how effective do you think it's going to be?

No word on whether the folks standing by the stairs will practice suffocating from smoke inhalation since they won't be able to reach the ground floor by the stairwells.

On measuring cups, crack and jail overcrowding

The boys over at Freakonomics have posited an interesting question -- did the sale of Pyrex hurt the crack cocaine industry?

It sounds quite far-fetched, I'm certain, but it makes some sense if you look into the issue a bit more deeply. The theory goes something like this...

Pyrex is (or at least, was) a great material for handling extreme changes in temperature. You could fill a bowl with a cold substance, throw it in the microwave and boil it, all without the glass shattering. At least you could before Corning sold Pyrex in 1998. The new owners, World Kitchen, changed the manufacturing process around and now Pyrex isn't quite so good at handling extreme temperature changes.

Crack cocaine is made by melting powder cocaine in water at high temperatures then letting it cool. It wasn't a problem for the old Pyrex measuring cups -- but the new ones, not so good. Crack manufacturers had to find new vessels to cook up their brew - namely, test tubes stolen from labs.

Now we all know it's far easier to buy a Pyrex measuring cup than it is to steal test tubes. Hence, the cost of producing crack has gone up and the supply has gone down.

Pyrex is valued by cooks for its sturdiness in the kitchen, particularly its ability to withstand rapid, dramatic temperature changes that typically shatter normal glassware. It turns out that people making crack cocaine valued this quality too. The process of cooking powder cocaine into hardened crack is intense, and involves a container of water undergoing a rapid temperature change. For years, Pyrex measuring cups, manufactured by Corning, were a key component of the underground crack industry. 
But Corning sold Pyrex in 1998 to World Kitchen, which altered the makeup of the Pyrex material, making it less resistant to temperature changes and more prone to shattering. 

If you're a fan of Mythbusters you'll get a kick out of this video in which the boys at Popular Science show the different ways you can cause a Pyrex cup to explode.

The lesson is that you can never be certain of the consequences of any particular decision until somewhere down the road.

This principle plays out on a daily basis in the criminal courthouse. By not granting personal bonds for people charged with nonviolent Class B misdemeanors, the courts "force" defendants to plead guilty in order to get out of jail. These folks now have criminal records that can make it harder for them to find housing or jobs. As a result of overcrowding in the county jail we've had to spend money to build new jails and even more money to pay other counties to hold Harris County inmates awaiting trial.

Harris County could institute a "catch and release" program for minor possession cases. Instead of arresting the person and hauling them off to jail, the police could issue a citation with a promise to appear in court. Such a policy would reduce the number of people held in the county jail and would take away the pressure to plead guilty in order to get out of jail. That conviction for a possession of marijuana could prevent a student from receiving financial aid in college - putting a degree beyond their reach.

Our state legislators rarely (if ever) consider the long-term consequences of anything they do -- they are focused on the next election, to the detriment of everything else. There are days I thank my lucky stars that they are only in session for 140 every other year.

Thursday, April 28, 2011

Burn those draft cards!

Prior to the decertification of the National Football League Players' Association, the players and owners bargained collectively on the rules by which the NFL operated.

Unlike most industries, the NFL was allowed to operate in such a way that violated the Sherman Anti-trust Act. The league created high barriers to the formation of any competing league so as to guarantee itself a monopoly over the professional football industry. Everyone turned a blind eye to what the league was doing because it was small potatoes -- until the cable industry matured.

Suddenly the NFL was a hot property and the rights fees have escalated to the point that the NFL brings in roughly $9 billion a year. That money is divided among the owners and players per their collectively bargained agreement.

But with the decertification of the NFLPA, and with the amount of cash that flows in NFL coffers, folks are starting to take a harder look at how the NFL operates. After the NFL instituted a lockout this spring, the players were successful in having a federal judge in Minnesota sign an injunction preventing the NFL from continuing the lockout. The players alleged that the NFL was in violation of anti-trust laws.

Now that the lockout has been lifted there is uncertainty regarding the rules under which the league will operate in 2011. Any rules the league tries to impose to limit the right of free agents to sign with the teams of their choice may be challenged as being in restraint of trade. But what about tonight's draft?

By instituting a draft, the league is preventing new players from exercising their right to choose where they work. The league is also preventing teams from exercising their right to hire the players they choose. The draft hurts incoming players chosen late in the round because they are unable to effectively bargain with their employer over the terms of their employment. The draft also hurts those players who aren't chosen by driving their wages down to the league minimum.

The draft gives the teams all of the leverage in their negotiations with the players. If a player doesn't like the offer made by the team he has two choices - he can sign or he can sit at home; but if he chooses to sit at home, he still can't choose where he plays because the team that drafted him retains their "rights" to his services.

The only question is whether anyone will have the nerve to stand up and challenge it.

Protecting their own

As I was looking through my Google Reader on Wednesday, I happened upon a post on Grits for Breakfast in which Scott Henson questioned why prosecutors enjoy absolute immunity for their misdeeds while peace officers  are only granted "qualified" immunity.

Mr. Henson linked to an article by Erwin Chemerinsky, the dean of the UC-Irvine Law School and a constitutional law scholar, in which Mr. Chemerinsky looked at two recent US Supreme Court cases in which the high court ruled against exonerated citizens seeking recompense for the time they spent locked up on wrongful convictions.
Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct. 
There is a serious problem in this country. Our criminal (in)justice system, through the erosion of defendant's constitutional rights and admission of junk science, has locked away hundreds of people whose convictions were later overturned -- not through the appeals process but through the filing of writs. The vast majority of these convictions were overturned when DNA tests (not available, or performed, at the time of trial) revealed that the person convicted for the crime was not the person who committed the crime.

In many of these cases prosecutors withheld evidence that may have led to a different result. In many cases these constitutional violations were intentional. And, in most of those cases, the prosecution had multiple opportunities to correct the error but chose not to.

To answer Mr. Henson's question "why" prosecutors enjoy absolute immunity from lawsuits alleging misconduct, we have to look at who's making the rules. Now I can only speak about Harris County but the vast majority of criminal judges at 1201 Franklin came from the Harris County District Attorney's Office. I am quite certain this is not a phenomenon unique to southeast Texas.

Judges already have a hard enough time believing that police officers beat suspects without reason and lie in their reports and on the stand. These judges have a hard enough time believing that eyewitness testimony is inherently unreliable and that forensic evidence is often of dubious provenance. Many of these judges have a hard time believing that a defendant is innocent unless proven guilty beyond all reasonable doubt (if you have any questions, just look at the bond conditions imposed on some defendants). Why on earth would one of these judges believe that prosecutors behave badly?

Why would a judge believe that the prosecutor who walks into her courtroom everyday was capable of withholding exculpatory evidence? Why would a judge believe that her former colleagues intentionally violated the constitutional rights of criminal defendants? Why would a judge who campaigned as being "tough on crime" believe that "her" prosecutors breached their ethical duty to see that justice was done?

And why would anyone on the bench care about the person freed from prison years later for a crime he didn't commit? Why would they care about the years he lost? Who cares whether he can pick up the pieces of his shattered life and start over again? That's not the judge's problem. He had a trial. So what if the jury got it wrong due to prosecutorial misconduct? So what if the jury got it wrong because of junk science?

If he wasn't guilty of that one, he was probably guilty of something else, right?

Wednesday, April 27, 2011

Seeking link exchanges

I recently received the following e-mail (no link love, though)...
I recently emailed you about exchanging links on your blogroll. I have the following three blogs that support my law practice.
Can we exchange links?
Lewis Gainor
No, Mr. Gainor, we cannot exchange links at this time. You see, the blawgs I link to my blawgroll are blawgs that I read on a regular (okay, in some cases, semi-regular) basis. There was no quid pro quo in my linking to them. If the authors responsible for them found my blawg interesting then they were free to link to my blawg. I never emailed anyone asking them for a link exchange. I've also never taken down a link because someone didn't "return the favor."

The blawgosphere is a fairly liquid place. New blawgs come and go on a regular basis. Some folks start a blawg because they have something to say. Others start a blawg because some SEO person told them it was a great way to move their website to the front page of Google or Yahoo! or Bing.

The ones who did it for SEO are pretty easy to spot. Their posts are "keyword rich" and recite the law regarding the classifications of crimes and field sobriety tests. Those blawgs are rarely updated and soon fall into a state of disrepair when the author realizes he has nothing else to say.

On the other hand, the blawgs written by folks who have something to say are interesting and diverse. They are serious and funny. They make you laugh and they make you think. They tell stories. They make analogies. They don't have every possible keyword crammed awkwardly into their posts. They aren't forced.

Lewis, you are more than welcome to link to my blawg. If you want me to link to your blawg, on the other hand, you need to give me a reason why. Stop writing the SEO-style posts. Stop cramming the articles with keywords. Stop trying to sell someone something in every post. Tell a story. Put up a funny picture. Find your point of view and express it.

Don't blawg because you want more "link juice." Blawg because you enjoy sitting down and writing. I'll drop back by your blawg in a while. If I find it more interesting, then I may link to it.

Good luck. In the meantime, check out the following blawgs:

Tuesday, April 26, 2011

A tale of two sermons

On Friday night the church my wife and girls attend put on a play about the crucifixion. My oldest daughter was in the play and she recruited my wife and youngest daughter to participate. The little drama was good and left everyone feeling a bit better I think.

Then the preacher sat down on the steps to the stage with the lights dimmed and started talking in a matter-of-fact voice. He was telling everyone what a downer Good Friday was. He never stood up while he spoke. He just kept hammering at what a bummer it was that it was Good Friday. Everyone left the building in a down mood.

Sunday, though, was a different story. He was walking around all jumpy (like he'd had five or six cups of coffee). His gestures were exaggerated. He sounded almost out of breath from excitement while talking. It was a wonderful day. Everything is born anew. Be happy. Today is the first day of the rest of your life. The room was happy and the people walked out into the sunlight in a much more festive mood.

Two different messages on two different days effecting two different moods - all by the same person.

He accomplished it through his voice, his gestures, his mannerisms and his clothes. On Friday night he spoke slowly and thoughtfully -- on Sunday it felt like he was winging it. On Friday every gesture spoke of weariness and depression -- on Sunday he gestured like a kid running toward the Christmas tree. On Friday he sat down while he spoke -- on Sunday he was all over the place. On Friday he wore a dark suit -- on Sunday he wore a white robe.

Both days, however, he held the attention of the audience in the palm of his hand.

Friday night's message was like the typical state's voir dire -- absolutely uninspiring. A prosecutor sets the tone when she says to the panel, "I know y'all are bummed out at having to be here today..." What kind of message does that send out to the jury? How enthused do you think the folks who sit on the jury are going to be?

I much prefer to thank the jurors for coming in and taking part in the most democratic of our democratic traditions.  I want a jury made up of folks who want to be there and who are eager to hear the evidence.

I'd much rather be delivering the Easter Sunday sermon than the Good Friday one. Wouldn't you?

Monday, April 25, 2011

Little black boxes

Scott Greenfield at Simple Justice wrote recently of a gentleman who proved that the cameras used to catch speeders in Prince Georges County (MD) aren't quite as accurate as portrayed by the manufacturer and the local constabulary.
Given a half-decent presentation by some "expert" getting a biweekly check by a manufacturer, police and municipalities are sold on the irrefutability of  machines to ascertain violations of law.  That same "expert" then trots into court, sells a judge on the conclusiveness of the toy purchased in bulk by law enforcement and, like magic, it convicts.  There's no arguing with magic boxes and pictures with stamps on them.  When the box says you did it, what judge can disagree? 
We have become blindly reliant on the accuracy and irrefutability of technology.  While some, perhaps even most, are indeed accurate when properly used, calibrated, cared for, when the optimal conditions exist and nothing interferes or impairs the sterile laboratory settings under which their viability is determined, they don't necessarily remain accurate when on the road. 
Mr. Greenfield then goes on to talk about the problem with judges (and jurors) relying on the mystical information provided by little black boxes. We don't require the police who operate the various black boxes (radar, laser and breath test machines) to have any idea how the blasted things work. We listen to these officers describe the length and rigor or their training -- which apparently teaches them nothing more than how to turn on the machines and input some information.
What about those sweet black boxes into which one blows, awaiting a digital readout that will let you know whether you will be sleeping in your own bed that night or find your face on some registry of people who will be permanently unemployable?  There have been a multitude of efforts to find out exactly what happens inside those boxes, and maybe some day somebody will figure it out.  In the meantime, does it occur to any judge who has ever admitted evidence from a mysterious black box that he will convict a person based on conclusory evidence by some outside equipment vendor, the accuracy of which may be completely assumed? 
Seriously, judge, if have no clue how something works, generically or under the specific circumstances presented, how can you blindly assume that magic boxes, cameras, whatever, provide a sufficient basis to sustain a conviction?
We are convicting people daily on the basis of information provided by some magical algorithm that no one is ever forced to disclose. We are asked to accept as fact that someone was traveling at a certain speed or had a certain alcohol concentration in their blood. Yet the courts don't require that the folks who use these black boxes prove up their knowledge of how they actually work.

Let's think about that for a second. The Intoxilyzer measures the changes in a wavelength of light to determine the alcohol concentration of the person blowing into it. The alcohol concentration is expressed in terms of volume. Just try getting an explanation from a cop or from the state's "expert" witness as to how we translate length into volume.

I'm still trying to figure it out. In the meantime, I've got a magical yardstick I'll sell you. It'll tell me how much you weigh just by measuring how tall you are.

Sunday, April 24, 2011

Death of a revolutionary

The other day Norm Pattis wrote a blawg post asking who Jesus and Socrates were. I would answer that Jesus was a revolutionary who was killed because he represented a threat to the state.

If you read the Gospel of John you will find that the Roman governor, Pilate, had no desire to execute Jesus. That demand came from the Jewish high priests. But why?
The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.
“You are a king, then!” said Pilate.
Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”“What is truth?” retorted Pilate. With this he went out again to the Jews gathered there and said, “I find no basis for a charge against him. -- John 18:37-38
The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.
Once more Pilate came out and said to the Jews gathered there, “Look, I am bringing him out to you to let you know that I find no basis for a charge against him.” When Jesus came out wearing the crown of thorns and the purple robe, Pilate said to them, “Here is the man!”
As soon as the chief priests and their officials saw him, they shouted, “Crucify! Crucify!”
But Pilate answered, “You take him and crucify him. As for me, I find no basis for a charge against him.” -- John 19:4-6
And that's just what Jesus did. He stirred up the masses with his parables of the ways in which the people were being oppressed by the Romans. He inflamed passions with his parable of the ways in which the high priests collaborated with the Romans. He taught the masses the importance of being self-sufficient.
Blessed are the meek, for they shall inherit the earth. -- Matthew 5:5
Those are the words of a revolutionary. Years after the fact the Roman Catholic Church deified Jesus and began to propagate the myth that he preached of an afterlife. The truth is, Jesus preached of a new kingdom on Earth - a kingdom of equality, a kingdom of justice, a kingdom of peacemakers.

These ideas were a threat to the status quo and to those who benefited from the way things were. Jesus had to die - his mere presence was a threat to the high priests.

Was his body in that tomb three days later? I have no idea. The accounts in the gospels were written years after the events portrayed and may have been authored to obscure the reality of who and what Jesus was. Could Jesus' body have been a metaphor for his revolutionary theories? Could the resurrection be a metaphor for the reigniting of the revolutionary spirit of the people?

Karl Marx wrote that religion was the opiate of the masses. Might religion have co-opted one the world's greatest revolutionaries?

Friday, April 22, 2011

Earth Day 2011

Today is Earth Day.

This past Wednesday, on the other hand, marked the one year anniversary of BP/Deepwater Horizon blowout in the Gulf - one of the worst environmental disasters in history.

Thursday, April 21, 2011

Did the Chicago Cubs throw the 1918 World Series?

The feud in the Windy City between Cubs and White Sox fans may be heating up once again as a 1920 deposition given by "Black Sox" pitcher Eddie Cicotte has surfaced in the Chicago Museum of History alleging that the Cubbies threw the 1918 World Series.

According to Mr. Cicotte, he heard the rumors while the Sox were heading east on a road trip in 1919.
"The ball players were talking about somebody trying to fix the National League ball players or something like that in the World's Series of 1918. Well anyway there was some talk about them offering $10,000 or something to throw the Cubs in the Boston Series. There was talk that somebody offered this player $10,000 or anyway the bunch of players were offered $10,000 to throw this series... Somebody made a crack about getting money, if we got into the series, to throw the series."
Mr. Cicotte went on to say:
"We never held any secret meeting but we would meet one or two at a time and we all agreed that for a piece of money we would throw the World Series. I was supposed to get $10,000."
The Cubs lost the 1918 World Series to the Boston Red Sox 4 games to 2. None of the games were decided by more than one run but there were some very interesting plays in each game that led to Red Sox victories. The following year the White Sox were heavily favored to beat the Cincinnati Reds in the World Series but came up short. It later surfaced that eight players for the Sox accepted money to throw the series. All eight were banned from baseball for life.

White Sox third baseman, Buck Weaver, was the only member of the Black Sox who did not accept any money to lay down. He, too, was suspended for life for not reporting his knowledge of the fix to team officials.

So maybe that supposed curse of the goat Cubs' fans blame for their team's post-season woes isn't the reason the team hasn't won the World Series in over 100 years.

Bill would allow convictions based upon prior bad acts

Texas State Senator Joan Huffman (R-Southside Place) is at it again. This time she's introduced a bill (that passed out of the Senate Criminal Justice Committee) that would allow the state to introduce evidence of prior criminal acts during the so-called "guilt/innocence" phase of trial to show that the defendant was a bad dude.

According to SB 152, anytime a defendant is charged with a sexual offense involving a minor, the state could introduce evidence of similar prior offenses committed by the defendant to show "the character of the defendant."

Current law allows the state to introduce evidence of prior sexual offenses involving the defendant and the complaining witness to show the parties' state of mind and any previous or subsequent relationship between the two.

Ms. Huffman's proposed bill would allow the state to obtain a conviction based not upon the evidence presented of the alleged offense, but based upon evidence of prior convictions or bad acts. In other words, a person could be found guilty because they did something bad before.

According to Ms. Huffman, the proposed legislation would bring Texas rules more in line with the Federal rules. Now that seems like a pretty strange argument for a conservative Texas Republican to be making. The Tea-baggers and their fellow travelers rail against the federal government and argue in favor of states' rights. Apparently that only applies when los federales haven't bowed to the social conservative agenda. If the State of Texas broadens rights defined under the US Constitution then I suppose we need less state sovereignty.

The proposed legislation is bad. A person on trial should only be judged on the evidence of the offense alleged - not on the basis of what he or she may have done in the past.

Let's make a deal

I ran across this tasty morsel on a listserv to which I subscribe...
A fellow lawyer advised me today a district attorney offered to dismiss his client's case if the lawyer would waive his court appointed attorney fees. Lawyer has put in a lot of time and energy on the case. Lawyer feels like he has been put in a bad spot by the district attorney and doesn't know what to handle this. 
Any suggestions?
Here's a suggestion. File an ethics complaint against both the prosecutor who made the "offer" and the district attorney. By making such an "offer," the prosecutor is violating his ethical duty to see that justice is done. If the case deserves to be dismissed, the case should be dismissed. End of story.

Would this prosecutor have made the same "offer" to the attorney if it were a retained case? If, as I suppose, the answer would be no, then you have an argument that the prosecutor and, by extension, the district attorney are violating the Equal Protection clause of the 14th Amendment as the indigent client is being discriminated against because of his economic status.

Such actions also violate a persons's 5th and 6th Amendment right to counsel. By placing such an "offer" on the table, the prosecutor is creating a disincentive for attorneys to accept appointed cases in that county. If the competent and experienced attorneys refuse to accept court appointments, the right to counsel becomes a hollow promise.

Maybe the district attorney should take a closer look at the cases the office chooses to prosecute. Maybe the weak cases need to be cast aside. Trying to balance the county's budget on the backs of indigent defendants is just plain wrong.

Keeping the prosecutor who made the offer on the county payroll is just as wrong. Hell, allowing him to continue practicing law is wrong.

Wednesday, April 20, 2011

The long march

This is the 1,000th post for The Defense Rests.

I would like to thank everyone who has dropped by and visited my little blawg over the past two-and-a-half years. Along the way I've made some mistakes that more experienced bloggers such as Mark Bennett have pointed out. I think that criticism has worked to improve the content on this site.

I would like to thank everyone who has taken the time to post comments to various posts. The comments are moderated for a couple of reasons. First, I was having to deal with too many spammers trying to cram links into their "comments." This blawg was never meant to be a forum for the SEO whores out there. Now anyone who reads the comments knows that I will publish comments that are critical of my views - I believe a healthy debate is good for the soul.What I got tired of, though, were comments attacking me coming from anonymous sources. I  put my name behind everything I write - the least you can do is put a name behind your comments.

For those who don't wish to (or can't) register to post comments, I inserted the instant feedback options at the end of every post. While that option doesn't allow for comments to be made, it does allow me to "check the temperature" on various topics. If that's your chief source of "commenting" on my posts, thank you for taking the time to do it.

There is an ancient Chinese saying that goes "A journey of a thousand miles begins with a single step." In much the same way, this blawg began with a single post. Here's to another thousand.

Tuesday, April 19, 2011

Getting paid

According to an article in the current issue of Texas Lawyer, a law firm in Dallas, Winstead, is suing a former client for unpaid attorney fees in the amount of almost $100,000. It appears that the client ran up a legal bill that he couldn't afford to pay - so, at the firm's request, the client signed a promissory note for $160,000. At the time Winstead filed suit, the former client still owed $99,626.
[Don] Campbell [shareholder and general counsel for Winstead] says Winstead rarely sues over unpaid fees or structures a fee bill as a loan, but it was reasonable in this case. "We had three different matters for the client, and he requested essentially a schedule for payout of the fees, and we agreed to just convert the debt into a promissory note," he says.

Legal ethics expert Charles Herring, a partner in Herring & Irwin in Austin, says it's unusual for a firm to enter in a promissory note with a client or former client who owes fees, but he has heard of it. He says a firm that structures a fee payment as a note is giving a client an extensino of time to pay.
Now you may ask yourself what on earth this fee dispute has to do with criminal law. It's quite simple. Disputes of this nature are the very reason that criminal defense attorneys bill clients a flat fee upfront. Whenever a criminal defense attorney takes a partial payment of a fee he is taking a risk that there won't be any more money after that. Our clients aren't the best at managing their money. Not to mention the fact that there's always a crisis demanding money just around the corner.

When we take installment payments on a fee we end up burning both ends of the candle - working for our client as his defense attorney but also working for the law firm as a collection agent. The arrangement can cause friction between attorney and client and work to the detriment of the representation.

By filing suit, Winstead is walking into risky ground. Do you really want a judge or jury second-guessing your litigation strategy or your billing practices? Do you really want someone looking into how much you billed for that form letter you sent your client as a case status update? How about the time you billed for leaving a voice mail message for opposing counsel? What about the generic discovery requests you "customized" by using the Find and Replace feature?

But what I want to know is how a client ran up a tab of over $100,000 without someone telling him to put some more cash in the kitty.

The article doesn't go into the purpose of the representation nor does it tell us how the cases were disposed. Over at the criminal courthouse, any money you collect after a case has been disposed of is considered found money. If the client was acquitted or the case dismissed, they were innocent all along and didn't really need you. If the client was convicted then you suck and the client and his family won't have any desire to pay the balance of the fee.

Monday, April 18, 2011

Blawg Review #307

On the afternoon of April 21, 1836, General Sam Houston led his band of Texians against the forces of Mexican General Santa Anna on the banks of the San Jacinto River (just east of present day Houston). Gen. Houston ordered "Deaf" Smith to destroy the Vince's Bridge - cutting off the Mexican army from further reinforcement. Then came the assault. The Mexicans, having their only means of egress eliminated, were left with the choice of standing and fighting or trying to cross the bayous or river by foot. Eighteen minutes after the assault began, it was over.

The following day Texian forces captured a man wearing the uniform of an enlisted man attempting to escape through the woods into Vince's Bayou. The Mexican soldier was taken to the Texian's camp where he was recognized by the Mexican prisoners. Shouts of "El Presidente!" blew Santa Anna's cover. In exchange for his life being spared, Santa Anna signed an order commanding the Mexican army to leave Texas. The war for independence was over. The Republic of Texas was born. The Raven, Sam Houston, accepted Santa Anna's surrender leaning up against a tree suffering from a broken ankle.

General Houston's victory at San Jacinto ended a campaign that began on October 2, 1835 when a band of Texians held off a Mexican assault on Gonzales. The assault on Gonzales and the fight over a cannon were the basis of the famous "Come and Take It" flag. Along the way hundreds of Texians were slaughtered at the Alamo and in the town of Goliad.

Texas remained an independent republic until it was annexed in 1845 under U.S. President John Tyler. As part of the annexation, Texas retained all of its public lands (some parks have since been ceded to the federal government). And now for a celebration of all things Texan...

I know it's not a current post, but my colleague, Murray Newman, found himself involved in a situation in which no one wins. What do you do when you've exhausted all your remedies trying to help someone who's mentally ill?

Now I prefer my crawfish cooked in a big pot with potatoes and corn and lots and lots of crab boil (and a little ham or andouille never hurt anyone). Over at Defending People, Mark Bennett found some prosecutors "crawfishing" at the Criminal (In)justice Center. When it comes to "total refusal" DWI cases, the Harris County DA's Office attitude is "ethics be damned."

While Congress debates how to create the illusion they are responsible adults, Dallas attorney Robert Guest has a new pen pal - U.S. Senator Kay Bailey Hutchison. Are illegal drugs to blame for the national debt spiraling out of control?

Jeff Gamso, a Texan living in Ohio, compares the degree of attention given to a death row inmate on his final day versus the degree of attention for an inmate in the general prison population. Some balance might have saved the lives of two men.

Lordy, lordy, Marcus Schantz, another transplanted Texan, is turning forty. Welcome to the club, Marcus. As I've told my wife every year when my birthday rolls around -- age is just a number.

Scott Henson over at Grits for Breakfast has an idea that probably makes too much sense for the folks in charge of public education in Texas to heed. Why don't we focus our dollars on educating the kids, not introducing them to the joys of the criminal (in)justice system? Schools as places of education? Now that's a novel concept.

Barry Green, a criminal defense attorney from Wise County, is upset that los federales are just releasing this memo regarding aliens and flying saucers. If the tinfoil hat wearing conspiracy crowd was a substantial voting bloc, maybe this would have come out much sooner.

What do Fort Worth and Dallas have in common? Outside of I-20, not a whole helluva lot. Political blogger Charles Kuffner provides the answer - Hispanic voters. All's fair in love, war and political redistricting - especially when you have a chance to draw your opponents' districts out of existence.

In his blawg, Liberty and Justice for Y'all, B.W. Barnett explains the art of pleading a tautology. It's the legal equivalent to your mom saying "Because I said so." Of course now that I'm a parent I take particular joy in using that to justify the rules of the house. That doesn't mean it should be used in the courthouse, though.

Houston defense attorney John Floyd takes a look at exploring jurors' biases during voir dire. He uses a new opinion from the Texas Supreme Court as his jumping-off point. Although the parties to a suit have the right to question jurors about their biases, defense attorneys must push the fight to ensure their client's rights are protected.

Kendall Gray, who works for one of them white shoe firms in Houston and wears a bow tie, asks a question that will be asked more frequently as e-filing goes mainstream - what font should I use in an e-filing? Luckily for all of us, he asked the Typography Guru himself, Matthew Butterick, what to do.

Anytime I walk out of the civil courthouse I also check my back pocket to make sure my wallet's still there and my back to see if there's a knife in it. After a recent experience on the "civil" side of the docket, Houston's Jacquelyn Carpenter probably feels the same way.

Houston's "Clear Thinker" Tom Kirkendall answers the question of why there have been so few criminal prosecutions related to the meltdown on Wall Street in 2008. Was Gordon Gekko right?

As reluctant to admit it as I am at times, there is a world outside Texas. So, here we go...

Much as the Mexican troops overran the walls of the Alamo back in 1836, prosecutors and police have inundated our courts with junk science over the years. So much, in fact, that most judges are afraid to be the one to stand up and question this pseudo-science that has been accepted in our courts for decades. Scott Greenfield has a message for you -- maybe it's our fault the courts don't question junk science.

Over at Military Underdog, Eric Meyer has had it with "standard operating procedure." That's the only excuse the TSA can offer up after a video surfaced on YouTube showing a TSA employee groping a 6-year-old in New Orleans. As a nation we are slowly but surely allowing our civil rights and liberties to be eroded under our very eyes.

Mike at Crime and Federalism wants to know why it isn't a crime for prosecutors to hide evidence and send an innocent man to prison. As he points out, if a man chained someone to his basement (whatever that is) wall, he'd be arrested and thrown in jail - unless it's a prosecutor who let an innocent man sit in prison for 18 years.

John Thompson is a death row exoneree. He sat in prison for eighteen years, fourteen of them on death row. The prosecutor withheld blood evidence that would have demonstrated his innocence. As it turns out, the convictions of five of the six men one of the prosecutors saw sentenced to death were overturned due to prosecutorial misconduct. Brian Tannebaum is upset. We all should be upset.

If Brian's not happy, then nobody's happy. Add Rick Horowitz to the list of upset attorneys. Rick wants to know why we spend so much money incarcerating people and less money on educating them. C'mon, it's common sense. It costs a whole lot less money to take care of something on the front end than cleaning up the mess on the back end. The criminal (in)justice system is broke.

And, speaking of broken systems, here's the Volokh Conspiracy with the tale of a judge who couldn't even bother to write his own opinion in a case. It's not that he relied on his clerk -- nope. Justice Joel Groves lifted most of his opinion verbatim from the plaintiff's pleadings.

Who is Mark Robins and what business does he have rating lawyers? The Trial Warrior did some digging (with a backhoe) and has the answers you're looking for.

Here are a handful of quick hits for your perusal...

Charon QC asks if the era of "the high-rolling criminal barrister" has come to an end. Damn! No one told me it had even started.

From Blonde Justice, the big city jail presents "Love Connection."

Here's a little advice for you - before approaching the judge, make sure he's eaten.

Is it ethical for drug companies to keep their prices high while spending millions on marketing, solicitations and attorney fees? Erin Gilmer wants to know.

So, Charles Fincher, how do you really feel about mediation?

Keven Underhill over at Lowering the Bar has what might be the worst brief ever written.

Norm Pattis takes a look at the deaths of Socrates and Jesus and asks "Who were these men?"

Eric Turkewitz documents the race to the bottom.

Palmetto State criminal lawyer Bobby Frederick thinks someone might be protesting just a little bit too much.

Now for a word from the other side of the aisle... Virginia prosecutor Ken Lammers thinks that work performance bonuses for prosecutors might not be the best thing in the world. He points out that rewarding prosecutors for convictions isn't the best way to ensure that justice is done.

Before I sign off, let's take a little tour through this wild and crazy place we call the Lone Star State. Texas is the home of a varied food culture as food maven Robb Walsh will gladly tell you. Now if it's barbecue that sustains you, the folks at Full Custom Gospel BBQ have you covered. To wash down that brisket, Ronnie Crocker's got the scoop on beer in Texas. If you need a little twangy music to go with your smoked meat, here's the place to go. And, if you're just looking for something to do, click here.

I'll leave you with this montage to Gary P. Nunn's "What I Like About Texas."

Blawg Review has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

Saturday, April 16, 2011

This table is now closed!

We can all breathe a deep sigh of relief as our government is hard at work keeping us safe from the scourge of online poker.

On Friday, los federales effectively shut down three online poker sites after unsealing indictments alleging bank fraud and money laundering on the part of the executives at PokerStarts, Full Tilt Poker and Absolute Poker.

The indictments allege that the sites circumvented a 2006 law forbidding US financial institutions from handling transactions for online gambling sites -- most of which are owned and operated outside the United States. The US government is seeking more that $3 billion in money laundering penalties and

Now let's be clear on this, no US-based financial institution lost any money as a result of the alleged fraud. Money passed through the banks on its way to customers and owners of the online poker sites. The only folks who lost money were the players themselves.

Our military forces are stuck in a quagmire in the Middle East (didn't see that coming, did you?). TSA employees are groping 6-year-olds (and parents just stand there and watch). The government's heading for a shutdown because lawmakers are realizing there just isn't enough money that can be whacked from the budget (unless someone looks under the mattress at the Pentagon). Unemployment remains high and the rising cost of fuel is threatening to put a damper on the economic recovery. Schools are laying off teachers and the Fourth and Sixth Amendments are under assault daily.

But at least we don't have to worry about people playing poker on their computers.

In the meantime you can still play government-sponsored lotteries that transfer money from the poor to state treasuries. You can still bet on the ponies and the dogs at your local horse or greyhound track. You can even go to legal casinos across the country and burn your money at the slot machines. But no online poker.

That online gambling is bad and the government never could figure out a way to get its hands on the money.

And ultimately, that's what this was all about. It was a giant cash grab by los federales. Meanwhile, the people who cooked the books with the mortgage lenders and banks are still out enjoying cocktails after work with nary a fear of getting pinched by the feds. But going after those crooks would require the government to admit that their regulators were either incompetent or in on the swindle from the get-go.

Almost like watching somone backdoor a flush to top the set you made on the flop.

Friday, April 15, 2011

Eviscerating the rule

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:
(1) a party who is a natural person or in civil cases the spouse of such natural person;
(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.

-- Texas Rule of Evidence 614

The purpose of Rule 614 is to ensure that witnesses in a criminal trial testify only to those things of which they have actual knowledge. It prevents a witness from changing his or her testimony to fit that of a previous witness. It means that once an attorney "invokes the rule," all witnesses must leave the courtroom and may not discuss their testimony with any other witness until the trial is concluded.

Of course it means that jurors will sometimes hear contradictory testimony from the state's witnesses. Officers and eyewitnesses may have different memories of what they saw, or thought they saw. The result can be an acquittal or a hung jury on occasion.

But here comes the state legislature to the rescue of the hapless prosecutor. HB96 proposes that this language be added to Rule 614:

        (f)The prosecuting attorney may designate one person who is
an officer or employee of a party that is not a natural person to
 serve as the state's courtroom representative during a criminal
 proceeding. Notwithstanding Rule 614, Texas Rules of Evidence, a
 court may not exclude under this article or that rule a person who
 has been designated as a courtroom representative under this

The proposed legislation would allow a prosecutor to designate the lead investigator as the state's courtroom representative during the trial. That person would be allowed to listen to all of the testimony and would allow him to tailor his testimony to that of the other witnesses. It would also allow him to talk to the state's other witnesses since he wouldn't be bound by "the rule." The bill passed out of the House Criminal Jurisprudence Committee on a 9 to 0 vote. The author of the House bill is Rep. Cindy Burkett (R-Mesquite). Ms. Burkett experience running several Subway sandwich shops apparently qualifies her to propose changes to the rules of evidence.

State Sen. Joan Huffman (R-Southside Place) authored the Senate's version of the proposal (SB1011). It was referred to the Senate Jurisprudence Committee on March 16, 2011. Coincidentally enough, Ms. Huffman is a former prosecutor and state district judge. According to her biography, Ms. Huffman "earned a reputation as a fair and tough enforcer of the law." I guess we can overlook the fact that a judge's role is to sit as a neutral arbiter; it's the job of the police and prosecutors to enforce the law.

These proposed bills are a solution for a problem that doesn't exist. The only purpose is to make it easier for the state to obtain convictions. Allowing the state's witness to corroborate (openly) their testimony means that jurors won't hear what a witness remembers -- they will hear what a witness is told they remember.

There is a reason the burden on the state is so high in a criminal proceeding. The state is attempting to take away someone's freedom and liberty. That attempt should never be taken lightly. Apparently the members of the House Criminal Jurisprudence Committee find it amusing.

Thursday, April 14, 2011

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

Wednesday, April 13, 2011

And the lemmings keep falling off the cliff

Here's your tax dollars at work. If a stranger did this to your child, you'd be calling the police. But, because it's our government making a mockery of the Bill of Rights keeping us safe from 6 year-olds terrorists, it's okay.

From the Houston Chronicle:
In a statement, the Transportation Security Administration says the officer followed proper procedure but that the agency is reviewing its screening policies for “low-risk populations, such as young passengers.” The statement says the agency is exploring ways to “move beyond a one-size fits all system.”
Enough said.

Office policy

Last week, my colleague Mark Bennett wrote about his experience with a "total refusal" case. His client declined to perform the officer's agility tests at the scene or at the station and declined his request to blow in the state's breath test machine.

Her reward, of course, was being arrested for driving while intoxicated. In the courtroom, Mark told one of the prosecutors that the case was a "try it or dismiss it" case and that he thought it should be dismissed. The prosecutor then informed him that it was "office policy" to try all total refusal cases.

My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime. 
But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant's time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA's Office tries, it has to lower its plea offers on a host of other cases. 
Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.

I don't know how to break it to Ms. Lykos' minions -- "office policy" doesn't trump a prosecutor's ethical duty to see that justice is done. If you have no evidence other than an admission of drinking and an alleged traffic violation - you don't have sufficient evidence to force a citizen to defend themselves in front of a jury.

That's not enough to expose a motorist to a $3,000 surcharge as well as probation fees and community service - not to mention the stigma of being a convicted criminal. Law clerks follow "office policy." Attorneys are professionals who are trained to think for themselves. Presumably a prosecutor in the courtroom is competent enough to evaluate a case to determine whether or not it should be dismissed or prosecuted. A prosecutor who decides to dismiss a dog shouldn't have to justify that decision to his boss. Such a policy only discourages prosecutors from acting like attorneys.

Of course prosecutors aren't the only folks over at the Criminal (In)justice Center who blindly apply "office policy" to cases.

Recently I was retained on a DWI case in which my client declined to blow in the state's breath test machine. At his arraignment setting the judge ordered him to install an ignition interlock device in his car. I asked the judge why he would require an interlock in a case in which there was no accident and no breath test.

The judge responded that he always requires an interlock if there was an accident, a breath test over .15 or a breath test refusal. He doesn't, however, require an interlock if the breath test is under .15. It's a policy that makes no sense.

The judge hasn't read the offense report. The judge hasn't seen the video. All the judge knows is whether there was an accident or a breath test. Might my client have had an alcohol concentration of .15 or higher? Sure. Might he had had an alcohol concentration of more than .08 but less than .15? Yes. Might it have been less than .08? Certainly.

Regardless of what his alcohol concentration may or may not have been, my client is innocent unless the state can prove each and every element of its case beyond all reasonable doubt. By ordering an interlock device as a condition of bond for a motorist who declined to blow, the judge is casting the presumption of innocence aside.

All in the name of "office policy."

Tuesday, April 12, 2011

A change in perspective

My grandmother died last week. We buried her on Saturday. It was a lovely spring day - a day she would have enjoyed, I think.

September 25, 1982 was the worst day of my life. That was the day we laid my grandfather to rest. He was the first family member that I was close to who had died. It was the first funeral I attended. I was devastated by the entire thing.

My grandfather suffered from Alzheimer's Disease. In the last year of his life he didn't recognize anyone except for my grandmother and my mom. I was at their house the day they took him to the hospital because he was beyond my grandmother's ability to control. I never saw him again until the day of the funeral. I never had the chance to say goodbye.

My grandmother had a good life. Over the last couple of weeks she was in the hospital after have an operation. Her body was old and tired. In the end she wasn't strong enough to overcome the trauma of the operation. When I saw her in the ICU at the hospital she was hooked up to wires and tubes going every which way. She was in pain, she had lost weight and her skin color. It was only a matter of time.

I got a call from my dad last Wednesday. I knew they were looking to put her in hospice by the end of the week. He told me she wasn't doing well and suggested I drive up to Conroe to see her. I left my office that afternoon and made the drive. My grandmother was asleep - she never did wake up. But, although her breathing was labored, she didn't appear to be in any pain. I spent an hour in the room with my mom and dad talking. It was peaceful. She had put some weight back on and had regained the color in her skin.

I left Conroe and headed back home so my wife could go to work. After I put the girls down I was sitting in bed reading a book when my phone rang. It was my dad. I knew what he was calling about.

I was glad I had driven up that afternoon instead of waiting until the next afternoon. I was happy that my last image of my grandmother was of her sleeping in bed. It reminded me of walking into our girls' room and watching my daughters sleeping.

I always dreaded the thought of my grandmother dying. We were close. After she moved out of her townhouse, my wife and I would take our oldest daughter (she was a baby at the time) to her apartment at the retirement complex to have lunch or dinner once a week. She and I would talk about football or baseball. I knew she would die one day - but I hoped it would never come.

But I wasn't depressed on Saturday. My mom asked me to say a few words at the funeral. I didn't know if I could keep it together. But I did. The years have changed my perspective on life. As I've gotten older I realize that life is about making memories. As I've gotten older I've learned to appreciate life more and not to take people and things for granted.  As I stood in front of a room of family and friends, I told everyone that it wasn't a day to be sad - that day had already come. I told them it was a day to be enjoy the memories they had of my grandmother. The years have cha

And I guess that's how I made it through it. My grandmother led a long life and I cherish each memory I have of her.

Monday, April 11, 2011

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.

Friday, April 8, 2011

Bill to ban texting while driving on cusp of passage

State Representative Tom Craddick (R-Midland) has proposed legislation (HB243) that would ban drivers in Texas from sending or reading text-based messages while driving. The measure passed 124-16 in a preliminary vote and will go before the House for formal approval today. Should it pass, the companion bill in the Senate will take up the matter.

Supporters of the bill argue that banning texting while driving will make roads safer as there will be one less distraction for drivers to deal with. Opponents cited privacy concerns as a reason for voting against the proposed legislation. In response to critics who raised questions about privacy rights, Rep. Craddick answered:

"Driving is not a right. Driving is a responsibility and a privilege."

While that is what the courts have ruled, motorists are still afforded their Fourth Amendment rights to be free of unreasonable search and seizure while driving a car. Calling something a privilege does not give the government carte blanche to do as it wishes.

But more interesting that Rep. Craddick's parsing of rights and privileges is another statement attributed to him by the Houston Chronicle:
Citing research, Craddick said texting while driving is 20 times more dangerous than drunk driving.
I don't know to what research Mr. Craddick is citing but I think he's right that texting while driving is more dangerous than drunk driving. Let's think about it for a second. Most drunk driving incidents occur after dark when there are fewer people on the roads. During the day roads are jammed and if you take a look around you'll see plenty of drivers on their cell phones.

According to the House Research Organization:

CSHB 243 would promote driver safety by prohibiting drivers from texting, instant messaging, or e-mailing. Texting may not be the only distraction while driving, but it is one of the most dangerous. The bill would introduce a commonsense safety law that would help deter this dangerous behavior.  
Accumulating research resoundingly concludes that texting while driving distracts drivers and increases response times to sudden traffic incidents. Like drunk driving, driving while texting has injured and killed drivers, passengers, and innocent bystanders. 

And what punishment will the state mete out for violators who endanger their fellow Texans by reading and sending text messages while driving? What will these motorists who are more dangerous than drunk drivers get when they step in front of a judge?

Jail time? No. Probation? No.

It'll be a Class C misdemeanor with a $200 fine.

That's right. For committing a crime that, according to the bill's author, is twenty times more dangerous than driving while intoxicated, you'll get a traffic ticket with a maximum fine of $200. Go to the window, ask for a deferred, pay a fine and it'll be dismissed in 90 days.

It's time to stand up again

Once again it's time for the criminal defense bar to work together to give the State Bar of Texas a message. Votes for the next president-elect of the State Bar can be cast online until 5pm on May 2, 2011. This time around we actually have a choice.

Buck Files is a criminal defense attorney from Tyler, Texas. If his name sounds familiar it's because of his monthly column "Federal Corner" in The Voice of the Defense, the magazine of the Texas Criminal Defense Lawyers Association.

Unlike the lawyers from the "white shoe firms," Buck Files knows and understands what we go through on a daily basis. He knows and understands the way things work in the criminal defense bar. He knows there is a disconnect between the Texas Supreme Court, the bar leadership and Texas attorneys.

Like my colleague, Mark Bennett, I have concerns about Mr. Files' position regarding the recent referendum on the ethics rules. I don't know what Mr. Files' position is on Justice William Jefferson's declaration that the Court isn't satisfied with the results of that referendum. I feel confident that Mr. Files will at least listen to the members of the bar before trying to ram something down our throats again with our dues money.

We made our voices heard earlier this year. Now it's time to do it again. Send (another) message to the State Bar. Vote for Buck Files for State Bar President-Elect.

Thursday, April 7, 2011

Will the bad ideas ever cease?

Alcohol Monitoring Systems, Inc. must be paying their lobbyists in Austin a pretty penny as legislation is pending before the Senate Criminal Justice Committee that would require motorists placed on probation for DWI to wear a SCRAM bracelet. The legislation was authored by Sen. Jane Nelson (R-Grapevine).

For those of y'all not familiar with SCRAM, it's an ankle bracelet that supposedly monitors a person's sweat for the presence of alcohol. The device is supposed to be super-sensitive to alcohol and is, therefore, known for giving false readings due to cologne, perfume, body spray and lotions (just to name a few). The device is also prohibitively expensive for most folks who find their way into the criminal (in)justice system.

The device requires a deposit and a monthly fee approaching $500.

Interestingly enough, AMS markets its ankle monitor for the "hard-core" drunk driver -- not the first-time offender.

All such a requirement will do is force more motorists to accept jail time instead of probation due to the prohibitive cost and will increase the number of motions to revoke filed by probation officers due to faulty equipment.

Sen. Nelson and her ilk don't seem to realize that a DWI probation is the more severe sentence a first-time offender can receive. This person, who likely has no prior contact with the criminal (in)justice system, must now report to a probation officer once a month, be subject to random piss tests, and drive around for at least a year with an ignition interlock device in their car. There is a reason that most criminal defense attorneys advise their clients to take time served and a fine (if offered).

I noticed there is no fiscal note attached to the proposed legislation. It would appear that Sen. Nelson hasn't thought about the increase in the number of people who may have no choice but to opt for jail time instead of probation. It also appears that Sen. Nelson has no idea of the true cost to a motorist of a DWI conviction as things stand currently.

Enough of the piling on. What's next? A registry for motorists convicted of driving while intoxicated? Oh, that's already been proposed.

Wednesday, April 6, 2011

A registry for DWI offenders?

Another day, yet another brain dead idea of how to place yet another stigma on motorists convicted of driving while intoxicated. Scott Greenfield, over at Simple Justice, pointed out that at least one state legislator in the state of Maine is contemplating a registry of DWI offenders.

Rich Sebra, a Republican state representative from Naples, Maine, said he's had enough of drunk drivers and he wants their neighbors and everyone else to know what bad people they are. He wants to hit those convicted of driving while intoxicated with an additional $25 surcharge to pay the cost of constructing the site. He wants photos and addresses posted on the website so people can check their neighborhoods to see which neighbors should be avoided like the plague and made to place scarlet D's on their chests.

What is it with politicians and their registries? If Mr. Sebra is so upset that motorists are being jailed or having their licenses suspended upon a DWI conviction, propose legislation to make the penalties harsher. If he thinks that DWI is a more heinous crime that murder, then propose legislation to classify it as a more serious crime.

At least one state legislator doesn't care for Mr. Sebra's idea:

Rep. Gary Plummer, R-Windham, the co-chairman of the panel, said he has a problem with any proposed websites to publicize a person’s conviction of any offense except the sex offender registry. 
“We have looked at several other requests, whether it is animal abusers or arsonists,” he said. “Every site that we create like that is very expensive. We don’t have the money.” 
Plummer also doubted whether such a website would have a deterrent effect. He said those that drink and drive really don’t think about what will happen to them when they get caught even though fines and long license suspensions have been added to the penalties for drunken driving over the years.

Once a person has entered their plea, or been convicted, and served their sentence, that person has paid their debt to society. Michael Vick pled guilty and went to federal prison. He served his time and was released. He carries the stigma of being a felon - but that's no reason he shouldn't be permitted to earn a living.

When you put up a registry or a list or whatever Mr. Sebra wants to call it, you are making it that much harder for someone who's already paid his debt to get a job or an apartment or whatever.

Sebra's List is just another example of politicians looking to the next election cycle and proposing bad legislation without a care in the world as to how it might affect someone.

Highway fatality rates drop to lowest level since 1949

With state after state ramping up DWI enforcement and dreaming up new ways to violate motorists' rights comes news that the rate of traffic fatalities per 100 million miles has fallen to its lowest rate since 1949. In 2009 there were 33,808 traffic fatalities in the United States, last year that number dropped to 32,788 - despite an increase in the number of miles driven.

But those numbers are doubly interesting because of another NHTSA report I wrote about last December. That report stated that 45,230 motorists were involved in fatality accidents in 2009. It seems like NHTSA's playing around with its numbers. The prior report counted everyone involved in a traffic fatality accident -- regardless of whether or not they were responsible for the accident or injured or killed in the accident.

Some may point to the drop in fatalities as proof that stricter DWI enforcement (and gutting of the 4th Amendment) is working. Any such conclusion is not supported by the evidence, however. Safer cars and the increased use of seatbelts have played a large role in reducing the number of highways deaths. According to the report:

NHTSA has also taken action to improve vehicle safety. The agency has urged automakers to swiftly and voluntarily report safety defects to keep the driving public safe. NHTSA has also encouraged the development and use of technologies to prevent crashes, such as electronic stability control, forward collision warning and lane departure warning systems. The agency also unveiled an updated 5-star rating system in 2010, which established more rigorous crash-test standards and began providing consumers with improved information about which cars perform best in collisions. 
The U.S. Department of Transportation's Federal Highway Administration (FHWA) has also been encouraging the use of Safety Edge technology -- which reduces drivers' risk of running off the road by shaping pavement edge -- on new road and highway projects. FHWA has also promoted the use of rumble strips and cable median barriers to separate opposing directions of traffic to reduce the incidence of crossover head-on collisions.

The rate of highway fatalities decreased the most in the Pacific Northwest and in California/Arizona. Areas in the South where the assault on the Fourth Amendment has been more pronounced saw a much smaller drop in highway deaths.

The fact remains that most DWI stops involve driving behavior that an officer wouldn't think twice about during daylight hours. How many people do you see on the roads everyday that don't signal each and every turn and lane change? How many of y'all do? How many folks get pulled over for malfunctioning lights or turn signals during the day?

The roads are safer today than they've ever been. Too bad we can't say the same about the Bill of Rights.