Out of the mouths of prosecutors

On Tuesday afternoon up in Montgomery County (for those of y'all not familiar with the place - it's just north of Houston), Verna McClain, a nurse, pled guilty to killing a mother in a doctor's parking lot and taking her baby. Ms. McClain was facing the death penalty, but the deal brokered by her attorney, Tyrone Moncriffe, will see her spend the rest of her life in prison instead.

But that's not the story.

The story is what Montgomery County District Attorney Brett Ligon told the media afterward.

Here is a clip from the article in yesterday's Houston Chronicle:

Although McClain will not have an executioner end her life with a lethal drug, she will "wither and die" in prison, and her victim's famly can have the certainty that the verdict will never get overturned on a technicality or appeal, Ligon said. 

"The victim's family also got to hear what few in their place do, an admission of guilt," he added. 

"No games were played in the courtroom. There was no hiding behind insanity defenses." 

While McClain had no prior criminal record, not even a parking ticket, Ligon believes she is all the more dangerous because nobody can predict what she might be capable of doing at any instant.

Of course, as has been pointed out in this space many times before, what the prosecutor refers to as a technicality is a constitutional protection. Yes, it can get messy sometimes trying to gather evidence and present it in court with that pesky little Bill of Rights nipping at your heels. But that's the point, isn't it?

The Founding Fathers had a profound fear of someone being wrongfully convicted. They also had a profound fear of allowing the government too much power to intrude into our private lives.

When we allow the government to refer to a constitutional protection as a "technicality" without calling them on it, we make it easier for the courts to cast those protections aside.

Mr. Ligon would like for us to believe that the insanity defense is a great tool for folks accused of murder to walk away from any responsibility. The truth is that the insanity defense in Texas is a very narrow defense that is rarely invoked by a defendant. In order to prevail on an insanity defense, the defendant must show that due to a mental defect he was unable to determine right from wrong at the time of the alleged offense.

While it is my understanding that Ms. McClain's attorneys thought about putting on an insanity defense, they were unable to do so because there was no evidence that Ms. McClain suffered from any mental defect.

I would propose that, as our understanding of the brain increases, that we revisit the insanity defense in Texas. If a defendant can prove up a mental defect should it even matter if he was able to distinguish right from wrong? I have seen folks with brain tumors do things they would never have imagined doing before - they knew it was "wrong," but they had no ability to control the impulse due to the effects of the tumor in their brain.

As to the question of whether Ms. McClain would be a threat in the future, Mr. Ligon's argument that an absence of a criminal record makes her more dangerous is beyond absurd. The absence of a criminal history makes it all the more likely that what happened that day in the parking lot was an outlier. If we are going to allow prosecutors to argue that a person should be considered a danger to society because their behavior was unpredictable, then we might as well tear up the special questions a jury must answer in a capital case once they find the defendant guilty.

What makes Mr. Ligon's comments all the more distressing is the fact that he was a member of the defense bar prior to becoming the DA in Montgomery County. He knows what he's spewing is horseshit but he doesn't care because his only goal is to poison as many jury pools as possible. Mr. Ligon might want to take a look at the disciplinary rules in Texas - his job is not to win cases but to see that justice is done.

Punting time

As far as crimes go, setting an eight-year old boy afire falls toward the end of the spectrum of the worst of the worst. But what do you do when the alleged culprit is only 13? What do you do when the victim dies 14 years later from complications due to being set on fire?

You can't charge the culprit as a juvenile because the juvenile courts no longer have jurisdiction over him. But can you charge him as an adult because of his age when the victim died?

At the time of the incident state law allowed for juveniles as young as 14 to be certified to be tried as adults. Now the Supremes have said it's okay to try a ten-year old as an adult.

Yes, now that Donald Collins is an adult he understands the consequences of setting a person on fire. He's old enough to appreciate the nature of the crime. But we can't transfer that maturity to the time he committed the crime.

Our juvenile courts were set up because someone realized that children aren't as mature as adults and that the punishments meted out to adults weren't appropriate for a child. Yes, it sometimes meant that someone might walk away with a much lighter sentence for the same criminal act as an adult. There is no question that a person is just as dead whether his killer is a juvenile or an adult. There is no question that the family of the victim suffers the same loss regardless of the age of the killer. And no punishment can ever heal the loss.

Up in Montgomery County the County Attorney asked Attorney General Greg Abbott whether or not prosecutors could charge Donald Collins as an adult for the murder of Robbie Middleton. The county attorney, David Walker, was concerned that Mr. Collins would claim that trying him as an adult for the murder would violate the Constitution's ban on ex post facto laws.

Much to Mr. Walker's dismay, however, the Attorney General decided that "[a] county or district attorney's determination regarding the initiation of further proceedings falls within in the scope of prosecutorial discretion." In other words, Mr. Abbott punted.

Abbott Opinion No. 967

Of course that's just what Montgomery County officials did, too. They were hoping that Mr. Abbott would bail them out of having to make the call. If the AG said they couldn't do it, well, they had their political cover. They could call a press conference and announce that, but for the Attorney General, they would prosecute Mr. Collins as an adult. Or, if the AG told them it was okay, they could look like they were tough on crime by formally filing charges.

But now Mr. Walker and the Montgomery County District Attorney, Bret Ligon, are going to have to make the decision themselves.

As badly as Mr. Walker and Mr. Ligon want to do something, there is nothing they can do in this matter. It doesn't matter that Mr. Collins is an adult now. It doesn't matter that Mr. Collins has spent time in the penitentiary for his actions as an adult. The fact remains that he was still a child when he committed the crime and a child's brain doesn't work like the brain of an adult.

Sometimes there's nothing you can do. Unfortunately, it's situations like this that lead to bad laws and ill-advised opinions.

Sign of the times

"Fourth Amendment? What's that? We don't need no stinkin' probable cause up here in Conroe!"

If a search warrant for blood is "mandatory" up in Montgomery County, does probable cause even exist up there? If judges are willing to rubber stamp fill-in-the-blank and check-the-boxes search warrant applications, is there no such thing as an unreasonable search or seizure? If you're telling the driving public that you're going to take their blood if they refuse a breath test, isn't that coercion - and doesn't that make "consent" invalid?

Is any judge in Montgomery County willing to stand up to Brett Ligon and his minions and suppress breath or blood results that were obtained through coercive means? Is any judge in Montgomery County willing to stand up to Brett Ligon and his minions and scrutinize these fill-in-the-blank and check-the-boxes warrant applications?

Public shaming, part deux

First there was the Twitter campaign by the Montgomery County (TX) District Attorney's Office. To refresh your memories, the MCDAO made a big to-do about tweeting the names of motorists arrested on suspicion of drunk driving in Montgomery County. Strangely enough, the MCDAO doesn't seem to tweet the names of those fortunate folks who have been acquitted by Montgomery County juries.

Now it's time for another social media campaign aimed at motorists arrested on suspicion of drunk driving. Now it Huntington Beach, California and Facebook.

City Councilman Devin Dwyer wants to shame motorists arrested for driving under the influence more than once  by posting their mugshots on the police department's Facebook page.

There is a saying: Come to Huntington Beach on vacation, leave on probation. -- Randall Bert, local attorney

Interestingly enough, Huntington Beach Police spokesman, Lt. Russell Reinhart, thinks the idea is a bad one.

We see no value in doing that. Law enforcement is not about public shaming. - Lt. Russell Reinhart

Again, I ask Mr. Dwyer the same question I asked Warrenn Diepraam of the MCDAO: are you going to issue apologies to those folks who aren't found guilty?

Let the witch hunt begin!

Montgomery County District Attorney Bret Ligon and his assistant, Igor, Warren Diepraam are on a mission from God -- at least that's what they believe. Mr. Ligon has declared that his number one priority is to rid the roads north of the San Jacinto River of drinking drivers.

Montgomery County District Attorney Bret Ligon said Warren Diepraam has been described by others as “the mad scientist of DWI detection, suppression and prosecution.”

Mr. Diepraam spoke recently at a DWI seminar put on by the Texas District and County Attorneys Association that was sponsored by Annheuser-Busch. I figure that much like the tobacco companies started telling people to quit smoking, the alcoholic beverage industry will mouth the lines "don't drink and drive" in order to fend off new legislation that might affect their bottom line. After all, "here we go!"

The problem with Mr. Ligon's witch hunt is that it targets individuals who aren't even breaking the law. There is no law in the State of Texas that says it's illegal to consume an alcoholic beverage and then get behind the wheel of a car. The law says you can't drive that car if you've lost the normal use of your mental or physical faculties due to the consumption of alcohol, not that you're breaking the law if you drive with the odor of an alcoholic beverage on your breath.

“Warren’s efforts are actually unique, not only in this county, but I think people are beginning to realize that we have a resource here within Montgomery County that the rest of the state is starting to grab on to,” Ligon said.

Listening to Mr. Ligon and Mr. Diepraam you would think that drunk driving is the scourge that threatens to rip the very fabric of our society apart. To combat this apocalyptic threat, the crusaders want to shred the Bill of Rights. Fourth Amendment? That just gets in the way of gathering evidence. Fifth Amendment? It's much easier to convict someone if we can compel them to incriminate themselves. Sixth Amendment? Those lawyers will just tell their clients not to cooperate with the officers.

The District Attorney has put many tools in the hands of law enforcement since his election, such as a Hawk-Eye System which videos eye movements during a DWI field test. He has also implemented No-Refusal Weekends through the end of the year- hiring nurses to draw blood, which saves the time it otherwise takes officers to go to a hospital for the same process.

Does it really make you feel any safer knowing that the police are forcing your fellow citizens to submit to blood draws all because an officer smelled booze on their breath?

There is no other crime for which an individual has less protection against the power of the state than driving while intoxicated. The vast majority of drivers arrested on suspicion of DWI are guilty of nothing more than a minor traffic infraction, such as failing to signal a lane change or speeding.

The more we sit back and accept this assault on our personal liberty and privacy, the more the nation's roadways will begin to resemble airport terminals -- full body scan, anyone?

Montgomery County to disregard the Constitution this weekend

If you find yourself cruising along the highways and by-ways of Montgomery County this weekend, be careful because it's a "Shred the Constitution" Weekend according to this tweet from Brett Ligon, Montgomery County District Attorney.

MontgomeryTXDAO: Conroe Police Dept, TABC, MC Sheriff's Office, DPS and others will be out in force working No Refusal this weekend.

That Fourth Amendment right to be free from unreasonable search and seizure? Get real. That ain't worth the paper it's printed on when there's money to be made from reinstatement fees, surcharges, bonds, court costs and probation fees.

Don't say you haven't been warned.

Mama said knock you out

Montgomery County DA Brett Ligon is on the warpath against State District Judge Cara Wood because he  thinks the judge handed out a light sentence to a man who plead guilty to aggravated robbery, aggravated assault and evading charges.

The sentence of which Mr. Ligon complains? Twenty years for the assault, 15 years on the robbery and two years on the evading charge. Under the parole rules drawn up by the Texas Department of Criminal Justice, the defendant will be eligible for parole in about 9 1/2 years.

When a jury is asked to sentence a defendant who has been convicted, the jury is not told how much time a person is likely to do based on parole guidelines. In fact, it is none of the jury's concern. The fact that Judge Wood has a good idea how much time one is likely to do in prison likewise shouldn't play any role in her determination of what sentence to mete out. If Mr. Ligon is unhappy, take it up with the parole board or TDCJ.

The defendant in this case plead to the court without a recommendation. Why would an attorney advise his client to plead guilty in a case without knowing what the sentence would be? Most likely because he had reason to believe that the judge was going to hand down a lighter sentence than the prosecutor was offering. Maybe Mr. Ligon needs to take a look in the mirror if he needs someone to blame.

The missing tweet?

I guess I must've missed the tweet from @MontgomeryTxDAO about the assistant district attorney up in Montgomery County who was arrested for driving while intoxicated in Houston on Thursday night.


I'm sure it's just an oversight and we should expect to see something on Brett Ligon's Twitter feed anytime now.

Waiting on Ligon

Word from up north is that a chief prosecutor in one of Montgomery County's felony courts was asked to pack up her desk and not come back. As we all know by now, Montgomery County District Attorney Brett Ligon and his chief crony, Warren Diepraam, dreamed up the idea of tweeting the names of motorists arrested for suspicion of DWI in MoCo.

These folks whose names are being bandied about haven't been proven guilty of anything and are presumed innocent. If you're firing someone, however, there's got to be a reason. Not to mention that the firing of a chief prosecutor in a felony court is a newsworthy event (one of Mr. Diepraam's justifications for the new policy).

To date, Mr. Ligon's Twitter account is silent on the matter.

An offer you just can't refuse

"The purpose of the complaint, then, is to enable the appropriate magistrate... to determine whether the 'probable cause' required to support a warrant exists. The [magistrate] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." -- Girodenello v. U.S., 357 US 480, 486 (1958)

"An affidavit for a search warrant is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed." -- Serrano v. State, 123 SW3d 59-63 (Tex.App. -- Austin 2003, no. pet.)

A magistrate is to view an affidavit in support of a search warrant in a neutral and detached manner in order to ensure that a person's rights under the United States Constitution, the Texas Constitution and the Texas Code of Criminal Procedure are protected.

MontgomeryTXDAO

New Years Eve No Refusal Info: 2 nurses, 2 prosecutors, 1 judge and 100s of officers working DWI enforcement. DWI blood warrants in effect.12:32 PM Dec 28th from web

One judge to review all of the affidavits in support of a warrant for the forcible blood draw of a Texas motorist? Does that sound like a neutral and detached magistrate? Who are we kidding? Everyone knows the game this weekend -- the cops will arrest motorists they suspect are driving while intoxicated and should that motorist exercise his 5th Amendment right not to incriminate himself by submitting to a breath or blood test, the officers will fill out a cookie-cutter affidavit that the judge will sign because that's what he's there to do.

Meanwhile, if you're out and about this holiday weekend -- be careful out there.

DA defends tweeting names of DWI arrestees

Last night, Warren Diepraam of the Montgomery County District Attorney's Office appeared on MSNBC to talk about his department's use of Twitter to embarrass motorists arrested for suspicion of driving while intoxicated.

When asked whether he thought the plan was problematic because those arrested for DWI were innocent until proven guilty, Mr. Diepraam commented that "We aren't the ones committing DWI, it's the suspects."

So much for the presumption of innocence.

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And so it begins...

Carrying through on his threat/promise to post the names of motorists charged with driving while intoxicated in Montgomery County, DA Brett Ligon's Twitter feed now lists the names of everyone charged with DWI over the weekend.

I find it curious that assistant prosecutor Warren Diepraam says the idea is to embarrass people charged with DWI but that he doesn't think tweeting the names of the accused will poison the jury pool. Well, Warren, if you intend to embarrass someone by tweeting their name then you must anticipate that enough people in Montgomery County will see the feed to have the desired effect. And, if that's the case, then you are attempting to poison the jury pool.

I seem to recall reading about something like this back in high school. That's right -- The Scarlet Letter.

Brett, when one of those cases is dismissed or the jury comes back with an acquittal, are you going to post the name of the prosecutor handling the case or the officer who wrongly arrested the driver? If not, I would encourage my Montgomery County brethren to provide me with the information and I will gladly post it for the world to see.

By the attention Mr. Ligon and his minions are placing on DWI arrests, you would think driving while intoxicated is the most heinous crime in Montgomery County. Let's see, are there any other crimes in which the accused (who is presumed innocent) is humiliated in public, subjected to a forcible blood draw, denied the right to remain silent and is not eligible for deferred adjudication?

See also:

• Bad ideas never die, they just drag on and on (The Defense Rests, 12/26/09)
• Police to put drunk drivers' names on Twitter (C|Net News, 12/26/09)
• Texas county to name drunk drivers on Twitter (IDG News Service, 12/26/09)
• To the top of the page we go (The Defense Rests, 12/19/09)
• Drink. Drive. Tweet. (The Defenses Rests, 12/18/09)

Bad ideas never die, they just drag on and on

Well, here we are a week after the Montgomery County District Attorney announced plans to post the names of those arrested on suspicion of DWI on Twitter and we have yet to see any names appear.

Despite criticism of the plan, Warren Diepraam, the idea's generator, doesn't see a problem. On the one hand he believes it will serve as a deterrent to motorists while, at the same time, he doesn't see any problems with tainting the jury pool.

Mr. Diepraam, if you don't know, also had the brilliant idea to charge a bus driver with vehicular manslaughter after a child was killed in an unfortunate accident while he was driving. Diepraam's comeuppance? A not guilty verdict.

Drink. Drive. Tweet.

The Montgomery County District Attorney's Office has found a new way to humiliate those unfortunate motorists who have been arrested on suspicion of driving while intoxicated -- they are posting their names on Twitter.

Assistant District Attorney Warren Diepraam said that the "public humiliation" should act as a "deterrent" to others who might get behind the wheel after drinking.

Nevermind that being arrested is a very different thing than being convicted and that a person who's been arrested is still innocent unless proven guilty. And of course the police never make wrongful arrests. And of all people, Montgomery County DA Brett Ligon should know better -- after all, he used to be a criminal defense attorney.

My question is should the DA dismiss a case against a motorist or should a motorist be acquitted by a jury of his peers, will Mr. Diepraam offer a public apology on Twitter as well? Even more important, will a person filing for an expunction in Montgomery County need to serve Twitter and other social networking sites, or will the judge sign an order requiring the DA's Office to notify those sites to remove all reference to the arrest of that individual?