Wednesday, August 31, 2011

Man v. nature: Galveston edition


Forget hurricanes, floods and other natural disasters that have stricken the island over the years. Ants have invaded the second floor of the Galveston County Courthouse. First floor I might understand -- but moving at will upstairs?!

Just another reminder that it's Gaia's world and we're just guests.

Tuesday, August 30, 2011

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:
"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."
In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:
However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.
The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

Monday, August 29, 2011

Interlock bill would make a mockery of the 10th Amendment

According to my latest issue of Interlock Focus, published by Consumer Safety Technology, Inc. (the folks who make the Intoxa-Lock), los federales are looking to make (yet) another end run around the 10th Amendment.

Senators Tom Udall (D-NM) and Frank Lautenberg (D-NJ) are sponsoring the "Drunk Driver Repeat Offender Prevention Ace of 2011." Unfortunately for the two senators, it doesn't look like they could come up with a fancy little acronym to make it sound more palatable. Better luck next time, guys.

The bill would require states to pass a mandatory interlock requirement on drivers accused of DWI with a prior conviction. The states would have until 2014 before los federales would start taking away highway funds. Sound familiar?

It should. This is the same formula Congress used to force states to raise their legal drinking ages to 21 and to lower the per se alcohol concentration to .08. The bill would dock any state who didn't go along 2% of its road construction funding. That rate would increase to 4% in year two up to a maximum of 8%.

Now here's a challenge for Sens. Udall and Lautenberg -- please point out to me where in the Constitution driving while intoxicated is listed as a federal crime. And you tea-drinking, limited government loving Republicans, do explain to me how this bill advances the agenda of limiting government intrusion in our lives.

Somehow I don't think I'll be getting any responses.

Friday, August 26, 2011

It's all about that filthy lucre

If you ever had any questions about how much of a moneymaker DWI is, this article should put them to bed. A lawsuit has been filed in federal court in North Carolina over the bidding process for supplying ignition interlock devices to the state. 

In its suit, Monitech Inc. says DMV Commissioner Mike Robertson broke state bidding rules by withholding the renewal of its state contract.
Since 1989 the company has been the state's sole provider of ignition interlocks, which test the breath of convicted drunken drivers for alcohol before they can start their vehicles. The devices are often mandated for people convicted of a DWI to keep their driving privileges.

First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.  

Mobley has previously alleged he faced retaliation from DMV officials after he refused in 2004 to sell his business to Law Enforcement Associates, a firm whose investors included then-Senate Majority Leader Tony Rand. The Fayetteville Democrat was co-chairman of the Governor's Highway Safety Program, which oversaw DWI prevention programs.
A close political ally of Rand's, then-DMV commissioner George Tatum, also owned LEA stock with his wife. Tatum was the state official with the ultimate authority to renew Monitech's contract with the state.
More than a dozen elected officials and their family members have owned LEA stock, including former Gov. Mike Easley, current Gov. Bev Perdue and her husband. Records also show that state agencies purchased at least $192,683 in surveillance equipment from the small company, much of it bought without seeking competitive bids.

Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.

DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.

Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.

The judge has ceased to be neutral and detached. The judge has become part of "the team."

Damn the Bill of Rights, keep those greenbacks coming.

Thursday, August 25, 2011

Add earthquakes to the terrorism watch list


The response to the earthquake near Richmond, Virginia was swift and severe.
The search is underway for those who are behind these evil acts. I've directed the full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.

Wednesday, August 24, 2011

In case of emergency...

Following the untimely death of Marguerite Hudig a couple of weeks ago, my colleagues and fellow HCCLA members, Mark Bennett and Murray Newman decided to create a special "In Case of Emergency" listing for all attorneys who practice in Harris County.

If you practice in Harris County, whether or not you're a member of HCCLA, you can enter your emergency contact information so that, if something were to happen, someone would know how to contact you to check up on your welfare.

The information will not be shared with anyone and can only be accessed by a member of the HCCLA Board of Directors.

Here is the link for more information:

Excellent work, Mark and Murray.

Tuesday, August 23, 2011

A little in-trial humor

Text message exchange between my wife and I on Monday afternoon after we busted a panel in a DWI trial down in Galveston.

Me: "Heading home. Busted the panel." 
Wife: "Where r u? Panel on your car?

Monday, August 22, 2011

Book Review: Popular Crime

Those of y'all who have more than a passing interest in baseball know who Bill James is. Mr. James practically created the algebra we use to analyze hitters and pitchers.

But Bill James has a hobby outside baseball - he's addicted to true crime stories. So addicted, in fact, that he decided to write a book about our fascination with them. The result is Popular Crime. The book takes us on a whirlwind tour of every "crime of the century" over the last 150 or so years.

His theory is you can really learn something about the history of a people by studying the crime stories they wrote. Crime stories are popular when you have beautiful people, tension and a vicious murder. Put in a "damsel in distress" or a child victim and the popularity of the story will go through the roof.

At their heart, true crime stories are an expose of a society's culture, customs and mores. Adultery, jealousy and greed provide the narrative for a sordid little murder.Want to know who the bogeyman is? Just take a look who the villain is in the books. We've gone from black men to Germans to communists to Latin American immigrants.

Not being a lawyer, Mr. James has little use for the rules of evidence and the concept of due process. In fairness, his interest is determining who did it -- not whether the prosecutor can prove who did it beyond all reasonable doubt. In his utopian court system, the only requirement of evidence would be relevance to the matter at hand. To determine relevance, Mr. James created a seven-step process.

  1. State the fact itself in a way that is unambiguously true.
  2. State that which tends to be proven by the fact, as if this was known to be true.
  3. Put the statement of fact proven by (2) in a "standard evidence" form.
  4. Establish the value of the statement of evidence with reference to a standard set of values for such evidence.
  5. Make an estimate of the extent to which the statement is unproven.
  6. Make an estimate of the extent to which the statement is irrelevant.
  7. Discount the value of the statement by the extent to which the statement is unproven or irrelevant.

The hardest thing for Mr. James to wrap his head around is the notion that a jury should not hear evidence that is unduly prejudicial to the defendant. The concepts of hearsay and confrontation are also both out of his grasp.

An interesting point that Mr. James makes is that after the expansion under the Warren Court of protections for the accused, far more defendants are convicted than before. He offers up an explanation that rings true. According to Mr. James, it's harder to beat the rap due to the professionalism of the police and pretrial discovery.

Juries are much more likely today to believe a police officer on the stand than they were in the 20's and 30's. Officers are perceived as more educated and disciplined today. As Gordon Gekko told Bud Fox, "the perception is reality."

It's the other idea that I'm interested in. Back in the early part of the century there was no pretrial discovery. Every trial was trial by ambush. The defendant didn't know what the prosecutor had up his sleeve and the prosecutor had no idea what tricks the defense attorney had in the works. That made it more attractive for defendants to roll the dice and go to trial.

Nowadays we see the offense reports. We see videos of traffic stops or interrogations. We see photographs. We read witness statements. There is very little the prosecutor has that the defense doesn't know about (but, of course, Brady is one case that is honored more in the breach than in the observance). Over at the civil courthouse there is little or no mystery at trial anymore. Thanks to liberal discovery rules, everyone knows what everyone else knows and what everyone's going to say. There's a reason most civil cases settle long before trial.

Is something similar playing out in the criminal courthouse? Does knowing the strengths of the prosecution's case make defendants more likely to enter into pleas rather than taking a chance at trial? As both sides operate with more information we're seeing prosecutors drop more and more of their weak cases and defendants pleading when confronted with a strong case against them. The cases going to trial tend either to be the coin flips or the cases in which a defendant is hoping to "beat the rec."

Popular Crime is an interesting book that will make you think -- it's just that sometimes that's after you've thrown your book (or your Kindle) halfway across the room.

Sunday, August 21, 2011

A more efficient way to ration water use

To combat the lack of rainfall in Houston, Mayor Annise Parker has decided that it's the right time to ration water use. As of last week half the city can water their yards on Sunday and Thursday and the other half can water on Wednesday and Saturday.

But is that the best way to handle the situation? Rationing forces people to do things at times when they wouldn't ordinarily do them. It is an inefficient use of resources and will cost more money to try to enforce. After all, someone has to drive around and cite people.

It also treats all yards the same. Some yards are big, some are small. Some have elaborate landscaping and some have none. Some have automatic irrigation systems and some have hoses and sprinklers. Some have lots of grass and some have decks and pools. Some yards are shaded better than others.

A more efficient mode of rationing the use of water would be to raise the marginal cost of each additional gallon used. Determine what the average water usage for a house in Houston is during a typical (that is, when it actually rains) month and raise the price of each additional unit of water above that figure.

That way those who need additional water can get it and those who don't need it aren't affected. A homeowner could look at the cost of watering his yard and determine whether or not the benefit of watering is worth the extra cost.

Such a scheme wouldn't require sending folks around in city-owned cars to write citations to citizens trying to keep their yards from turning brown. Such a scheme would allow for the more efficient use of water during drought conditions.

Of course, since it makes sense, it'll never happen.

Saturday, August 20, 2011

This old courthouse - Jackson County edition


This was the Jackson County Courthouse that was built in the Beaux-Arts style back in 1906. This elegant building burned down in the early 1950's and was replaced by this...


The current Courthouse looks like just about every other high school built in the 1950's across the Lone Star State. Terry Jeanson wasn't quite so kind when he compared it to an abandoned nursing home.


The clock on the north side by the main entrance is a nice touch.


Then there's the gazebo on the east side.


And what's not to love about a building with a tree growing inside?

The courthouse isn't much to look at - but the courthouse staff are friendly and at least it doesn't have a metal detector.

Friday, August 19, 2011

Virginia uses epilepsy drug to kill inmate

Lundbeck, a Danish pharmaceutical manufacturer, makes an epilepsy drug that has become the go-to drug for states looking to kill inmates. Pentobarbital is used to treat severe cases of epilepsy. Lately it has become the sedative of choice in the lethal cocktail used to kill.

Lundbeck has placed strict controls on the distribution of pentobarbital to prevent states from using it as part of their lethal injection protocols. Despite Lundbeck's objections to the misuse of its drug, Virginia officials (using pentobarbital acquired before the stricter controls were placed on it) gladly pumped it into the bloodstream of Jerry Jackson on Thursday night.
"We're in the business to improve people's lives, so the use of pentobarbital to end people's lives contradicts everything that we're in business to do," Matt Flesch, a US spokesman for Lundbeck, told the BBC
While proponents of state-sanctioned murder claim that pentobarbital works just as well as sodium thiopental which was discontinued by its manufacturer, there have been no studies to determine whether or not pentobarbital induces unconsciousness. Theoretically, the first drug causes the inmate to lose consciousness while the second drug paralyzes him. The third drug then stops the inmate's heart.

But if the first drug doesn't induce unconsciousness, the inmate remains alert throughout the entire procedure, enduring great pain as his muscles are paralyzed and his heart is stopped. Since the second drug causes paralysis, there is no way of knowing whether the inmate feels any pain as he cannot move his body nor cry out.

It's bad enough that doctors and nurses volunteer to violate the oaths they took to do no harm in the name of state-sanctioned murder -- but to turn around and use a drug that is manufactured to improve the lives of people suffering from epilepsy makes it so much worse.

If Lundbeck is successful in preventing state prisons from obtaining supplies of pentobarbital, the death machine in this country may (finally) be shut down for good. And how wonderfully ironic would it be that is was the free market that dictated the end of the death penalty?

I want it now!

Fresh on the heels of the redefining of addiction comes this study of how cocaine addicts value money and drugs.

Researchers conducted an experiment with 47 cocaine addicts to test their preferences when it comes to money or drugs. The expectation was that the addicts would choose cocaine, even a lesser amount, over money. That's not quite what happened.
Forty-seven cocaine addicts (who were all seeking treatment) were asked to guess the number of grams of cocaine worth $1,000. They were each then given a series of choices: cocaine now versus more cocaine later; money now versus more money later; cocaine now versus money later; or money now versus cocaine later. The initial amount offered for the immediate choice has half of the full value, and the delayed amount was always the full value. Preference was almost exclusively given to the money now option, according to the study’s lead researcher, Warren K. Bickel, a psychology professor at Virginia Tech, and director of the Advanced Recovery Research Center there.
It turns out that addicts prefer cash in hand over a stash of drugs - even if that cash is less than half the value of the cocaine offered in the future.

The addicts wanted their prize - and they wanted it now. It didn't matter to them whether they were paying a steep price for the privilege of having the cash or coke in their hands now. It would seem that this finding dovetails nicely with the new definition of addiction offered by the American Society for Addiction Medicine.

When we think rationally, we look at both the present value and future value of any given choice. If the future value is greater than the present value plus opportunity cost, we're more than happy to bide our time. If the equation works out the other way, carpe diem, baby.

With the addict, however, there is no consideration of the future. It's now! now! now! The addict has lost the ability to reason and to calculate which option offers the biggest reward. He is living in the present without the slightest conception of the future.

Does that give us a clue on how to fight addiction? With our jails and prisons being filled with more and more addicts, maybe it's about time we reconsider how we deal with addiction.

H/T Freakonomics

Another day...


... another fucked up mess outside the Harris County Criminal (In)justice Center. 

This was the scene yesterday at 9:03 am  outside the criminal courthouse. The line for the entrance on San Jacinto was just as long. And, once inside, it was time to deal with the long lines trying to get in the elevators.

Hey, McFly, we've got a problem.

Thursday, August 18, 2011

Excuses, excuses

When an officer has a hunch someone might be just a bit tipsy behind the wheel and he can't find a legal basis for the stop he tends to fall back on his "community caretaking" function.

Oh, but not so fast.

Back in 2009, two Wiley (Texas) police officers on bike patrol observed a car park on a dead end street behind a fast food restaurant. They watched as the passenger side door opened up. The officers claimed they could hear the passenger and driver talking - but they couldn't make out what they were saying.

The officers decided they had seen enough. It was time to go in for the kill. As they approached, the passenger, Ms. Alford, and the driver switched places. When the officers arrived they saw that the engine was running and the car was in gear. Ms. Alford began to pull away when one of the officers asked her if she would mind answering a couple of questions.

You can guess the rest. The officer smelled a strong odor of an alcoholic beverage and Ms. Alford admitted to drinking "four big beers." Needless to say, the officers testified that Ms. Alford failed their coordination exercises. When asked the basis of the stop, the officers said they believed Ms. Alford was in need of help.

The trial court denied Ms. Alford's motion to suppress on the grounds there was no legal basis for the stop. Oh, that nebulous community caretaking function.

On appeal, in Alford v. State, No. 05-10-00922-CR (Tex.App.--Dallas 2011), the Dallas appeals court found that there was, indeed, no legal basis for the stop. The court pointed out that in order to determine whether the officer's belief that a person needed help, it would weigh four factors:

  1. the nature and level of the person's distress;
  2. the location of the person;
  3. whether the person was alone or had access to help; and
  4. to what extent the person was a danger to himself or herself.

In Alford, the court found that none of the factors indicated Ms. Alford needed any help from the officers. Ms. Alford did not appear to be in any distress. The car was parked behind a restaurant that was open. Ms. Alford was in the car with her sister. There was no indication that Ms. Alford was a danger to anyone at the time the officers decided to approach the car.

As a result, the court reversed Ms. Alford's conviction and sent the case back to Collin County to be disposed in a manner consistent with the court's rulings.

What happened to Ms. Alford was not an isolated incident. More and more motorists find themselves being detained without probable cause - and whenever the emperor finds himself naked before the mirror his fallback position is that he thought the motorist was in some sort of danger.

This time, it didn't work.

More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:
Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 
Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment
My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

Wednesday, August 17, 2011

Flipping-flopping the night away



Houston Mayor Annise Parker flipping and flopping about what to do with the red light cameras. 

First she cut them off. Then, faced with breach of contract, she turned them back on. Now, with an election approaching she's asking City Council to turn them off.

Classic politics, that is. If the city shuts them down and ends up writing a check to ATS, Mayor Parker can blame City Council. If the city leaves the cameras up and running, she can tell the voters that she wanted to turn them off but City Council wouldn't listen.

Come on, Mayor Parker, go down to the Medical Center and get a spine replacement. Try being a leader for once.

Smoke stop in Wharton

In my comings and goings along the lower Texas coast I realized there was at least one prominent barbecue joint I had missed up until now. I have since rectified that error by stopping in Wharton at Hinze's.

Although there are signs from miles away advertising Hinze's, unless you're paying attention it's very easy to blow right on past the low slung building just outside Wharton, Texas. If you do, shame on you.

As is my custom I had a two meat plate -- brisket and sausage. I had pinto beans, mac and cheese and mashed potatoes on the side. The mashed potatoes were made with onions and bacon and were heavenly. The mac and cheese was a bowlful of velveeta-y goodness. The only thing missing was the banana pudding.

The brisket was firm and moist and had a very clean smoky flavor. I knew right away it had been smoked over oak. The sausage was cut on the diagonal and while it was good and smoky, the texture left a little something to be desired.

There was nothing special about the atmosphere - linoleum floors, old wooden tables, styrofoam plates and stuffed heads on the wall - but the food was worth the stop.

Tuesday, August 16, 2011

A new way to look at addiction

One of the first tenets of the criminal (in)justice system we are taught in law school is that for there to be a crime there must be both an act and intent. We aren't supposed to punish people who have a bad thought without a corresponding bad act, nor are we to punish those who might commit a bad act without the intent to do so.

Malus actus + Mens rea = Crime

Most crimes listed in the penal codes in these United States require that the actor act with the intent to commit the bad act. He may act intentionally, knowingly or recklessly. In some cases the level of intent determines the severity of the crime, while in others, as long as their is intent, there's a crime.

Driving while intoxicated, however, has always had a special place in the penal code, for there is no criminal intent required. DWI is, for all intents and purposes, a strict liability crime. In other words, if you're driving and you're intoxicated, you've committed the crime, regardless of whether you intended to drive drunk or not.

Now comes word that addiction is a brain disorder and not a case in which someone behaves badly. The American Society for Addiction Medicine (which, in and of itself, may not be such a grand idea) has redefined  the term addiction.
Addiction is a primary, chronic disease of brain reward, motivation, memory and related circuitry. Addiction affects neurotransmission and interactions within reward structures of the brain, including the nucleus accumbens, anterior cingulate cortex, basal forebrain and amygdala, such that motivational hierarchies are altered and addictive behaviors, which may or may not include alcohol and other drug use, supplant healthy, self-care related behaviors. Addiction also affects neurotransmission and interactions between cortical and hippocampal circuits and brain reward structures, such that the memory of previous exposures to rewards (such as food, sex, alcohol and other drugs) leads to a biological and behavioral response to external cues, in turn triggering craving and/or engagement in addictive behaviors.
Addiction is more than a behavioral disorder. Features of addiction include aspects of a person’s behaviors, cognitions, emotions, and interactions with others, including a person’s ability to relate to members of their family, to members of their community, to their own psychological state, and to things that transcend their daily experience.
 And no, since I'm not a neurologist, I don't know what all of that means. What the ASAM seems to be saying is that addictive behavior is the result of chemical reactions in the brain. If this is indeed the case, should we re-evaluate the manner in which we handle drug and alcohol crimes? Punishing an addict does nothing to "cure" the problem. If a person has a brain disorder before entering prison or court-ordered supervision, that person will still have a brain disorder when they leave prison or are discharged from probation. We wouldn't be punishing folks for their bad acts, we'd be punishing them for something beyond their control.

"The behavioral problem is a result of brain dysfunction," agrees Dr. Nora Volkow, director of the National Institute on Drug Abuse.

Alcoholism is one of this country's worst addictions. It destroys bodies, lives and families. Yet try explaining to a gung ho young prosecutor that your client is an addict, not a criminal. See how far that gets you.

Now if the point of the criminal (in)justice system is to punish those who break the law and provide a disincentive for others to commit criminal acts, how does it serve a purpose to punish a person who has an addiction? If the person is acting due to a brain disorder, does the application of the criminal law benefit either that person or society? Is it just to punish a person who has a disease or a disorder?
Even if you're not biologically vulnerable to begin with, perhaps you try alcohol or drugs to cope with a stressful or painful environment, Volkow says. Whatever the reason, the brain's reward system can change as a chemical named dopamine conditions it to rituals and routines that are linked to getting something you've found pleasurable, whether it's a pack of cigarettes or a few drinks or even overeating. When someone's truly addicted, that warped system keeps them going back even after the brain gets so used to the high that it's no longer pleasurable.
As I've said on numerous occasions, our criminal (in)justice system is not designed to heal the sick. It's designed to punish and rehabilitate. As long as we treat medical conditions as legal problems, we are never going to give folks the help they really need. The system isn't working. We're forcing too many people into the criminal (in)justice system who don't need to be there. Branding an addict as a criminal for life does nothing to help him or her get over their addiction.

But it sure does help you get elected judge.

Taxpayers subsidizing Perry's White House bid

So Rick Perry is running for president.

How long had he been contemplating his navel running for the White House? How many of those out of state trips he's taken this year were to build up support for his campaign? How much money have we spent so that Gov. Goodhair can travel around the country looking for suckers voters who will support him? How many bodyguards are we paying for to accompany him? (And just keep in mind that they are from the same agency that couldn't even prevent the governor's mansion from getting torched.)

Rick Perry already has a job. He's the governor. He's paid by us to be the governor. He's not being paid to fly around the country pimping himself out for votes. With the number of teachers that Mr. Perry threw out of work this year by cutting the amount of money the state spends on education, the last thing we need is for our tax dollars to kickstart his presidential campaign.

Now that Mr. Perry has tossed his hat in the ring for the GOP nomination, it's time for him to do the honorable thing (there is, after all, a first time for everything). It's time for Perry to resign as governor and turn the keys over to someone who is going to look out for the best interests of Texas, not the best interests of a presidential candidate.

Of course, I'm not holding my breath on this. Despite his claim of supporting limited government, Mr. Perry doesn't seem to have any problem with the taxpayers of Texas subsidizing his flights of fancy. He'd much rather steal from the taxpayers and abdicate his responsibilities in this state so he can hoodwink try to convince voters across the country to support his campaign.

Monday, August 15, 2011

Police look to change uniforms

According to this article in the Houston Chronicle, the Houston Police Department is looking to retire its light blue over dark blue uniform and to replace it with a more militaristic style "body dress uniform" assembly in navy blue.

Apparently there is a need for the force to use more rugged military-style uniforms when "working" the streets.
"The younger officers wanted a little more tactical, user-friendly uniform for running and tackling people. You don't go to a fight in a suit. If you're going to have to engage someone, chase someone, why not wear clothing more appropriate for the situation?" -- Gary Blankinship, President, Houston Police Officers' Union
That's just what we need in Houston, a bunch of armed men dressed like paramilitary members running and tackling people on the street. Ladies and gentlemen, the illusion is over. The police aren't out there to protect the citizenry, they're out there to assault the citizenry.

Court nixes no video policy

Lance Baxter, the presiding judge in of Court Court No. 3 in Collin County, Texas, has had an interesting, to say the least, policy regarding the playing of DWI videos at trial. They weren't.

Judge Baxter did not allow the prosecution or the defense to show the video during trial. They could talk about it. They could ask the officers involved, or other witnesses, about it. They could refer to it during their closing argument. But they could not pop it into the VCR or DVD player and hit play.

You see, Judge Baxter, believed that the only proper time for the jury to see the video was during their deliberations. The six folks in the box weren't allowed to view the video within the context of the trial. They were expected to remember the points the defense made while cross-examining the officers involved.
In his first point of error, appellant contends the trial court's ruling forbidding the playing of exhibits during trial, and more broadly its policy on video evidence, constitutes an abuse of discretion, deprived him of the right to effective assistance of counsel under the Sixth Amendment and Article I, section 10 of the Texas Constitution, and deprived him of his right to present a defense and confront the witnesses against him in violation of the Sixth and Fourteenth Amendments. Appellant concedes the trial court has the discretion to set reasonable restrictions on how video evidence is published to the jury, but he contends a blanket policy prohibiting the use of such evidence during direct and cross-examination without regard to the individual facts and circumstances of a case is an abuse of discretion. Appellant contends the ruling excluding videotape evidence harmed him by eliminating his counsel's ability to present evidence in a manner that allows the jury to assimilate it as the trial progresses. He contends it is unreasonable to expect jurors to remember details developed during examination and cross-examination about recordings they have not seen or heard, and diminishes his ability to effectively cross-examine witnesses by removing the jurors' ability to actually see the impeachment evidence. In the event the jury does choose to examine the videotape during its deliberations, appellant contends the failure to present it contemporaneously with the testimony discussing it makes it more difficult for the jury to match up the video with the questions asked because the lawyers are unable to show the jury what is being referenced. Appellant contends his constitutional rights are violated by a ruling that deprives his counsel of the ability to show properly admitted evidence to the jury, explain its significance, use it to support opinions that appellant was not intoxicated, and to confront and impeach the State's witnesses to expose inconsistencies in the witnesses's testimony. 
But no longer.

In  v. Packer v. State, No. 05-10-00552-CR (Tex.App.--Dallas, 2011), the Dallas Court of Appeals said that Judge Baxter's policies violated Mr. Packer's Sixth and Fourteenth Amendment rights to present a defense and to confront the witnesses against him.
 We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretion
That such a policy was allowed to be carried out is a travesty. So much so that the state submitted a letter brief acknowledging that the policy violated Mr. Packer's right to an open trial.

Of course, so as not to lean too far in guaranteeing a defendant's right to a fair trial, the court decided not to publish the opinion - meaning it is not to be cited to as authority in subsequent cases.

Sunday, August 14, 2011

Just because you sit in a garage, it doesn't mean you're a car

Rigid adherence to protocol should never be mistaken for intellectual rigor.

Of course not only do we tend to equate the two, we actually hold it up as model behavior in our courts. We call it precedent. It's what allows appellate jurists to ignore the facts, and the constitution, when they don't want to make a difficult decision. Now the law should be predictable so that we don't find ourselves committing felonies  because one judge somewhere woke up on the wrong side of the bed or had a bad night.

But the law is also organic. It was written by man. Our laws were passed in response to things that were happening at a given point in time. The circumstances surrounding the birth of many of our laws have completely changed over the years. There are things we have now that could never have been contemplated by the Founding Fathers.

DNA, breath testing, drug-sniffing dogs, cell phones, the internet, cars...

None of that was around back in the late 18th century. Hell, none of that was around in the 19th century or most of the 20th century for that matter.

Sitting on the bench requires more than just the ability to look up the local rules or the rules of civil or criminal procedure. Sitting on the bench requires one to "rise above the fray" and engage one's mind in just what it means for a search to be "unreasonable." It requires one to contemplate just what it means to "invoke" one's right to remain silent.

It requires one to be able to take into account the "big picture." When a judge makes a ruling from the bench that judge needs to be aware of what the consequences of that decision are. Judges who dispense "one size fits all" remedies are doing a disservice not only to the legal system but to our communities as well.

Judges are not part of any "team" and should never allow themselves to act in such a manner nor allow others to perceive they are acting in such a manner. Candidates for criminal benches should never sound like candidates for sheriff.

The job of sitting on that bench and making rulings that will affect peoples' lives is an awesome responsibility and that fact should never be forgotten. And to make those decisions based upon a rigid adherence to protocol is a sign that the person sitting on the bench has no business sitting there.

Friday, August 12, 2011

Where was I?

The folks sitting in the pews rose to their feet as the man in the black vestments walked into the room.When he reached his seat he looked out at the crowd and asked them to bow their heads. Then he led the people in prayer - finishing it up with "in Jesus' name we pray."

Sunday morning in church?

Nope.

Weekday morning in a rural court somewhere in south Texas.

Who needs that damn First Amendment anyway?

Next thing you're going to tell me is that courts are allowing witnesses to testify with dogs in their laps or something else equally absurd.

There is no statute of limitations for murder

Texas Penal Code § 19.02. MURDER. (a) In this section: (1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. (2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation. (b) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. (c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree. (d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
James Jones is the senior warden at the "Walls" Unit in Huntsville (TX)  that houses the Texas execution chamber. He is the man in charge when the State of Texas decides to murder an individual. He is the one who decides when it's time to pump the lethal drug cocktail into the arm of a prisoner strapped down to a gurney.

Mr. Jones knowingly and intentionally caused the death of Mr. Martin Robles on Wednesday night. Mr. Jones committed a first degree felony.
Texas Penal Code § 9.21. PUBLIC DUTY. (a) Except as qualified by Subsections (b) and (c), conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process. (b) The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F). (c) The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it. (d) The justification afforded by this section is available if the actor reasonably believes: (1) the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or (2) his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.
Mr. Jones could argue that his conduct in causing the death of Mr. Robles was justified through the public duty defense to criminal conduct. However, look closely at section (c) - the conduct is only excused if the actor has a reasonable belief that deadly force is "specifically required" by statute.

There is no criminal offense in the State of Texas that specifically requires the state to cause the death of the actor. In the case of Mr. Robles, there was another man who was convicted of the murders -- and he wasn't put to death. Therefore, one cannot have a reasonable belief that deadly force is "specifically required" when two men can be convicted of the same murders and given different sentences.

I find it interesting that section (d)(2) would seem to allow Mr. Jones to claim he was only carrying out orders. Funny, that defense didn't cut it at the Nuremburg Trials. Of course, since Mr. Jones can't justify his use of deadly force, he can't rely on the "just following orders" defense.
Texas Penal Code § 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
And this is where things get interesting. The medical personnel who assisted in the execution (and turned a blind eye to the oath they took upon finishing medical school) are just as responsible as Mr. Jones for the death of Mr. Robles. I just wonder if they will inform future patients of the role they played in state-sanctioned murder.

And let's not forget the black-robed prosecutors who gladly signed the paperwork ordering the death of another person. Each and every judge who sentenced a defendant to death, or affirmed a death sentence, is culpable as well. They all had the opportunity to prevent a murder, and they all sat there and let it happen.

There is another person who bears responsibility for this murder. That would be the fair-haired one, Governor Rick Perry. His signature is on the death warrant. Gov. Perry knew what he was doing when he signed the death warrant. His intention was for the state to cause the death of Mr. Robles. Gov. Goodhair caused Mr. Jones to engage in conduct that caused the death of another - Mr. Jones would never have presided over the killing of an inmate without being ordered to do so by the governor.

Rick Perry is a murderer, and there's no way to sanitize or sugar coat it.

Thursday, August 11, 2011

Update: Chalk up another one for the Texas death machine

Last night the State of Texas murdered Martin Robles. There were no members of Mr. Robles' family to bid him farewell. There were no members of the victims' families to witness an act of cold-blooded murder.

Mr. Robles was convicted of murdering two young men who were members of a rival gang in Corpus Christi. He didn't act alone. Joe David Padron was also convicted of murder. The only difference is that Mr. Padron received a life sentence while Mr. Robles was given the needle.

So, two men walk into a house with guns. They shoot two men multiple times and kill them both. Yet one is sent to prison for life and the other is strapped to a gurney and killed. That's the capricious nature of the death penalty. Two men convicted of the same heinous crime yet the punishments couldn't be more different.

As I've written in other cases in which a man is killed for his crimes, Mr. Robles' death did nothing to bring back the two young men who died. His death did nothing to ease the ongoing pain of the families of the victims. The only thing his death does is confirm the reality that the State of Texas can exact revenge upon a man who did wrong.

Let's not kid ourselves that it means anything else.

State to compile DWI prosecution data

On September 1, 2011, the Texas Department of Public Safety will begin compiling statistics on the disposition of DWI offenses across the state.

Under SB 364, every law enforcement agency, prosecutor's office and court throughout the state will be required to provide the following information to the DPS regarding drunk driving arrests:

  1. The number of DWI arrests;
  2. The number of arrests in which no charges are filed;
  3. The number of DWI arrests in which the defendant pleads not guilty and requests a jury trial;
  4. The number of DWI arrests in which the defendant pleads guilty or no contest; 
  5. The number of cases resulting in DWI convictions;
  6. The number of cases resulting in convictions for other offenses; and
  7. The number of cases resulting in dismissals.

The data will be compiled and presented to the legislature by February 15 of each calendar year. According to the bill's author, Sen. Steve Ogden (R-Bryan), the information will be used to determine the "effectiveness and appropriateness" of the state's DWI statute.

Two witnesses spoke in favor of the bill back on March 22, 2011 - Bill Lewis, the public policy liaison for MADD and John McCluskey, the president of the Professional Bondsmen of Texas. I understand why Mr. Lewis would speak in favor of the bill -- he believes the requirement that prosecutors and courts report the disposition of DWI cases will pressure them not to offer plea deals to other offenses.

But why would a bondsman be in favor of the bill? Could it be that Mr. McCluskey's organization believes that these reporting requirements will increase the number of DWI arrests which would increase the number of  folks needing to post bonds?

I also wonder if member of the legislature are looking for an excuse to introduce the offense of driving while ability impaired to the books. As I've written before, DWAI would be the most illogical addition to Chapter 49 of the Texas Penal Code yet.

If Sen. Ogden is concerned about the number of DWI arrests that result in dismissals or convictions of other charges, maybe he should take a look at the manner in which the DWI statute is enforced in Texas. Too many officer are arresting too many people for DWI simply because they smell alcohol on their breath. Cases are being dismissed because drivers shouldn't have been arrested in the first place. First time offenders in some counties are offered pleas to other offenses to avoid paying surcharges to the DPS.

Of course that might just be too complex a matter for legislators in Texas to grasp.

Wednesday, August 10, 2011

Numbers, numbers, numbers

ESPN has decided that fantasy football geeks need a new stat to drool all over. According to "The Worldwide Leader," the NFL's passer rating system is passe and in need of an update. I'm not going to bore you with the details - but I will agree that that current rating system yields a number that means next to nothing.

But here's the problem with statistical analysis in football - unlike baseball in which you can boil every confrontation down to pitcher v. batter, football is a team sport and the result of a pass play is far more dependent on the other 20 players on the field.

Besides, numbers have never been nearly as important in football as they are in baseball. The rules in football change every so often because the offense, or the defense, has "too much" of an advantage. The season has expanded from 10 to 12 to 14 to 16 games. There's also the realization that every yard gained on the football field is the result of an entire team working together. In baseball, if you hang a slider, it's more than likely going to find its way into the bleachers.

Before "Big Head" Barry Bonds stole took the title of Homerun King away from Hank Aaron, everyone knew what the numbers 755 and 714 meant. Before the juicers wiped Roger Maris' single-season homerun mark off the books, everyone knew what the numbers 61 and 60 meant. Nolan Ryan is baseball's strikeout king and has thrown more no-hitters than anyone else. "The Splendid Splinter" Ted Williams is the last big-leaguer to hit over .400 for the season. Pete Rose is the all-time hits leader. Quick -- what's the significance of the number 56?

If you're a baseball fan you know that's the number of consecutive games the "Yankee Clipper" Joe DiMaggio got a hit in. And it is also one of the few records that is not likely to ever be broken.

Thanks to Bill James we can argue over a beer until the end of time who the best baseball player was. We've got batting average, on-base percentage, slugging percentage and OPS (slugging + on-base percentage) in our debate kit. On the pitching side we've got ERA and WHIP (walks/hits per inning). In the world of baseball, these numbers mean something - they always have and they always will.

But who has the record in the NFL for most passing yards in a season? Most rushing yards? Most receptions? Most touchdowns? Most career passing yards? Most career rushing yards? And, even if you know who, what are the numbers?

We don't know because it isn't important in football.

So, thank you, ESPN, for another meaningless stat that no one outside fantasy football will concern themselves with. Just like the esteemed members of our legislature, ESPN has created a solution for a problem that didn't exist.

Tuesday, August 9, 2011

Execution Watch 8/10/11

Texas plans to put to death Martin Robles Wednesday for a double homicide in Corpus Christi. Execution Watch will be there.


TEXAS PLANS TO EXECUTE:


MARTIN ROBLES, 33, One of two men convicted in a 2002 slaying at a home in  Corpus Christi., where two men were found shot to death. Joe David Padron, Robles's fall partner, was also convicted of capital murder but received life in prison. More background at executionwatch.org.


RADIO PROGRAM PREVIEW


EXECUTION WATCH
Unless a stay is issued, we'll broadcast on ...
Aug. 10, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: www.executionwatch.org > Listen
Join the Execution Watch discussion on
Facebook




For more analysis on the death penalty, please see:

Hear the one about the guy who thought he was innocent unless proven guilty?

Innocent unless proven guilty? Really?

Try telling that to Jose Torres. Mr. Torres was charged with aggravated sexual assault. It was alleged that he visited a house as a sales rep for a cable company and then went back two days later and raped a 14-year-old. The only problem was, he didn't do it.

The results of a DNA test confirmed that Mr. Torres was innocent.

But not until he had served two months in jail. No before he lost two jobs and his apartment.

Mr. Torres had never been arrested. He had a clean record. Like most folks, he just assumed that "the system" worked fairly well and he never worried about being falsely accused of a crime. No one does. That just doesn't happen to good people.

But it does happen. Our criminal (in)justice system sits logic on its head. Once you're arrested you ain't innocent unless proven guilty. No, you're guilty unless you can prove otherwise. Let's slap a high bond on you so that you can't fight your case from the outside. Let's put pressure on you to accept a deal for a crime you never committed. After all, how could the state and its allies, the black-robed prosecutors, possibly be wrong?

Mr. Torres is very fortunate. He is fortunate he is free and his case was dismissed. He is fortunate to have had  my colleague, Juan Guerra, as his attorney. He is fortunate that DNA tests were run. He is fortunate he didn't have to live the nightmare of so many other exonerees who stood and listened to juries pronounce them guilty and who sat in prison for years until someone took up their fight.

Once upon a time the grand jury system was devised as a way of protecting the reputations of those accused of crime unless there was sufficient evidence to warrant a trial. Nowadays the grand jury is nothing more than a de facto division of the DA's Office who takes its marching orders from the prosecutor presenting the case.

You could argue that in this case "the system" worked as it should. Just don't try telling that to Mr. Torres.

Defendants, cages and due process

In the United States we take it for granted that the accused sits at counsel table with his or her attorney during trial free from any visual restraint. In many countries, however, the defendant sits apart from his attorney in the courtroom.

In Egypt, Hosni Mubarak, the iron-fisted former President, was brought into the courtroom in a hospital bed and promptly wheeled into a cage on the opposite side of the room from his attorney. As bizarre a scene it makes, countries in the Middle East, Latin America and Eastern Europe place criminal defendants in cages at trial.

How on earth can a defendant be assured of competent assistance if he is unable to consult with his attorney during the course of trial? How can an attorney provide competent representation if he can't speak with his client during cross examination? What message does it send to a jury that the accused is sitting isolated either "in the dock" or in a cage?

According to NPR, the cage dates back to ancient times:

It is difficult to pin down precisely when the practice began, but it seems to have originated from a time "when captives were put in cages in ancient Rome and Mesopotamia," says M. Cherif Bassiouni, a professor at DePaul University's College of Law who has worked for the United Nations on human-rights issues. 
By the Middle Ages, he says, defendant's cages were a regular feature of many European courts. "The original rationale for doing it was the fear that criminal defendants would attack or intimidate witnesses or judges," Bassiouni says.

The form of the cage varies from country to country and situation to situation. Still, the cage serves as a barrier. A barrier between both the defendant and his counsel and the defendant and the trier of fact. The cage projects the not so subtle message that the defendant is a bad person from whom the people must be protected. Jenia Iontcheva Turner from the SMU Dedman School of Law views the cages as a threat to the presumption of innocence.

Turner says cages are more likely to impact the presumption of innocence in a jury trial than one before a judge or magistrate. She also notes that the construction of the cages, themselves, can be a factor.
"Mubarak was in something like a mesh cage, but if you look at the pictures of Saddam Hussein, he's in something open and less obtrusive," Turner says, referring to the former Iraqi dictator's 2006 trial. "In Europe, glass compartments have been used more often."

While we don't place criminal defendants in a cage at trial, some courts have used a "reverse cage" in cases involving sexual assault of children, in which the alleged victim testifies from another room via closed circuit television. Allowing such testimony to take place deprives the accused of his right to confront the witnesses against him and projects to the jury the message that the defendant is a dangerous person from whom we must protect the witness.

When we allow defendants to be placed into cages, what we are really caging up is the Constitution's promise of due process of law.

Monday, August 8, 2011

I think there's a special ring in Hell for folks who steal a/c units


This is what we were greeted with at the office this morning. When I left Saturday there were two a/c compressors back there. But not this morning. Talk about low-down and dirty.

Galveston looks to eliminate pretrial services

Galveston County is in a mood to cut their operating budget and one of the biggest targets is the Pretrial Release Agency. The PRA serves two primary functions: they monitor defendants who have interlock devices installed on their cars and they acts as a low cost bonding agency for jailed defendants who qualify for their services.

Members of Commissioner's Court view the agency solely in terms of the latter - a subsidized competitor to the private bonding companies doing business in Galveston. Due to the severe poverty in the county (which county officials would rather ignore), there are plenty of people being held in the Galveston County Jail because they cannot afford to post a bond.

These folks turn up on the daily afternoon misdemeanor jail docket. The county has already reduced the number of jail docket attorneys from three to two in an effort to save $57,000 a year in attorney fees. If the PRA is eliminated, the number of inmates appearing on the jail docket will increase which will create a need to put a third attorney back on the docket - or putting added pressure on the jail docket attorneys to plead their clients out.

All of us who work within the criminal (in)justice system know that it's a whole lot easier to fight a case when your client is able to work and sleep in his or her own bed. As long as a defendant is locked up, the pressure to plead out increases. When you're sleeping behind bars, the siren song of "time served and a fine" sounds a whole lot nicer than litigating a suppression motion.

According to Ms. Bonita Quiroga, the director of the Office of Justice Administration, eliminating the agency will result in all of two people being laid off -- hardly a savings bonanza. Elimination of the agency would also put the Galveston County Sheriff's Office in charge of issuing personal bonds for defendants who qualify for them.

Of course the private bonding companies want to see PRA go away. They look at the number of folks who walk out of the county jail through pretrial release and see dollar signs. The problem is, if these folks could have afforded to post a bond, they would have.

Quiroga.ltr.Pretrial.release

Saturday, August 6, 2011

The benefits of jury duty

Experiencing true grass roots democracy.

Seeing firsthand just how our court system works (or doesn't).

Being charged with contempt of court, taken to the holdover and shackled to a bench.

Betcha didn't see that third one coming. But that's exactly what 19-year old Christian Daniels experienced in Harris County the other day. It seems that Mr. Daniels reported to the new Jury Assembly Room as requested. He was then selected for a panel to hear a misdemeanor case in County Criminal Court at Law No. 14, the Hon. Michael Fields presiding.


                             




He was taken, along with the other 19 panelists, from the Jury Assembly Room to the 11th Floor of the Criminal (In)justice Center. Somewhere along the way the group was separated and Mr. Daniels got lost or confused, or both. He went back to the Jury Assembly Room - and was sent back to Judge Fields' court. When he finally found his way back the defense attorney was already conducting his voir dire.

Judge Fields found Mr. Daniels in contempt for his failure to appear for jury duty and ordered him to the holdover where he was shackled to a bench.

The case against Mr. Daniels was later dismissed thanks to HCCLA member Stephen Touchstone.

According to KHOU-TV, Mr. Daniels learned "the importance of paying attention when called to serve." Either that or he learned just how capricious our criminal (in)justice system can be.

Show Cause Order

Friday, August 5, 2011

Update: Dr. Big Brother?

As a follow up to a piece I wrote in May about a ballot initiative in San Francisco that would impose fines on doctors who performed circumcisions, a Superior Court judge in San Francisco has ordered the referendum be removed from the ballot.

Judge Loretta Giorgi found that circumcision is a medical procedure and, as with other medical procedures, should be regulated by the state and not by individual cities.

Of course Judge Giorgi's ruling did not please everyone in the City by the Bay.
"To remove an initiative before it comes on ballot is an extraordinarily irregular thing to do," said Lloyd Schofield, who is part of a Bay Area advocacy group that says the surgery violates human rights and likens it to "male genital mutilation."
I guess we all need a cause but, let's get real, to blame all of the problems one has faced in life on the fact that mom and dad decided Junior should be circumcised shortly after birth, is just a bit of a stretch. Making such a statement is taking victimology to new heights. If you don't want your son to be circumcised, Mr. Schofield, then don't have him circumcised.

You see, that was an easy enough problem to resolve now, wasn't it?

Why do I get the feeling that we haven't heard the last of this?

Birthday edition

Today is the 3rd birthday for The Defense Rests and, once again, I'd like to thank everyone who has taken the time to read and comment on what they find here. By my calculation there have been almost 88,000 pageviews in the last year (I have no idea how many since I launched the blog since I just added the page view widget last summer) and around 148 comments (including my responses). I have no idea how many people have hit the "reaction" buttons, but I know it's too many to go back and count.

The four most popular posts of the last twelve months are:
I hope you continue to find what I've posted here to be interesting, informative or at least amusing at times. Please keep the comments coming - whether it's to agree with what I've written, disagree with what I've written or to let me know I'm an idiot (so long as it's not anonymous).

So, let the party begin!