Fuck Troy Nehls and fuck you for voting for him

Yes, it's low-hanging fruit. But I've been under the weather the last couple of days and it's the best I can do.

I'm sure there are some folks down in Fort Bend County (once you cross the Brazos, you're in a whole different world) who are offended by the language. So fucking what.

I'm offended by police brutality, racism, the growing gap between the wealthy and the working class, war, Donald Trump and his band of wingnuts who take the flack for every stupid thing that comes out of his mouth.

Troy Nehls should know better. Should. But he doesn't because he comes out of the police culture which has become more of an us-against-them mentality as the old white guard tries desperately to cling on to power in a changing landscape. This is the man who is supposed to be the point of the spear for law enforcement in Fort Bend County and he doesn't even know the fucking law is. He might want to review the oath he took upon assuming office. When he says "jump" he expects folks to ask "how high?" and not "why?"

The prosecutor he spoke to who said she would be glad to prosecute the owner of the truck might want to spend the weekend boning up on Con Law, particularly First Amendment jurisprudence. Might be the only thing between her and disbarment.

Now, if this is the way Mr. Nehls overreacts to a situation in which someone expresses an unpopular (at least in the land across the Brazos) opinion, what kind of judgment would he show when the stakes get bigger?

But, in a world where "Blue Lives Matter" is code for "I don't give a shit how badly the police mistreat people of color," what else should we expect. It will never cease to amaze me how much the folks who claim they don't want big government are more than happy to have that same government poke its nose into the business of those who say or do something that is unpopular with the great white mass.

When driving the speed limit is breaking the law

If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read "left lane for passing only." - Texas Transportation Code Sec. 544.011 

An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway, unless the operator is: (1) passing another vehicle; or (2) preparing for a left turn at an intersection or into a private road or driveway. -- Texas Transportation Code Sec.  545.051(b) 

What better way to create an excuse for pulling motorists over to see who might have been drinking but to enforce a little known, and little observed, traffic statute.

We all know that the left lane is the fast lane. We're all taught to pass to the left. I have been known to drive my car at a speed quite a bit above the one posted on the roadside traveling back and forth to the Dallas area for seminars - but even I move to the right when someone's coming up behind me at warp speed.

So, yes, there are plenty of motorists out there who think for some yet unknown reason that they are more than justified to plod along in the left lane at the speed limit. These tend to be the same people who count the number of items someone takes out of their basket in the express lane and who tattled on their younger siblings when they were growing up.

And, as much as I hate getting behind that person on the freeway, I have a hard time supporting anything that gives the police yet another excuse to pull someone over who isn't doing anything wrong. But, up in Montgomery County (the land the Constitution forgot) and out in Fort Bend County, if you're cruising along in the left lane not passing anyone - you risk getting pulled over and either being issued a warning or being ticketed. And, should you be coming home from a night out with friends after consuming an adult beverage or two, you could find yourself being arrested for driving while intoxicated.

Why else would Warren Diepraam and the Montgomery County District Attorney's Office get themselves involved in such an initiative? Hell, if you can't pull 'em over for doing anything illegal - you might as well pull them over for driving the speed limit.

So, as annoying as it may be to be driving behind the guy who thinks he needs to police speeds on the highway, the last thing we need to do is give the police yet another excuse to pull someone over. It's bad enough that we allow DWI stops based on behaviors that during the day wouldn't get a second glance from a police officer. But to allow a DWI stop when the only sin being committed is driving the speed limit in the wrong lane is hardly a good idea.

And what about officers who want to have it both ways? Are the police not going to ticket anyone for speeding if they are passing slower moving vehicles to the left? At the rate things are going, pretty soon up in Montgomery County driving on the highway alone will amount to reasonable suspicion that someone is breaking the law.

This (not so) old courthouse: Fort Bend County edition

This is the new Fort Bend County Courthouse. While there's nothing special about the outside appearance of the building (other than the fact it looks like a high school), it's the inside of the courthouse that's spectacular. The courtrooms are loaded with the latest shiny gadgets and appointments.

But, for all the exterior's generic qualities, it's still a damn sight better than the old William Travis building which was built in the 70's Government-style (otherwise known as "we don't give a shit what it looks like, it's just a damn building").

But nowhere near as nice a sight as the old courthouse. Built in 1909 in the Classical Revival style, the old courthouse is a study in elegance. While nowhere near as functional as it needed to be, it still had charm and grace.

Just ask Mirabeau Lamar, he'll set you straight.

Tinkering with jury selection

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

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

I asked the panel of 25 Missouri City residents three scaled questions to find out who was more state-oriented based on authoritarian beliefs. The scale for each question ranged from 0 to 10 with a 10 indicating a strong authoritarian belief; the hypothesis being that the higher the scores, the more state-oriented the juror would be. The questions were as follows:

1. Do you agree that, in the long run, order is more important than liberty?

2. The freedom of society is endangered at least as much by overzealous law enforcement as by the acts of individual criminals.

3. The Court will instruct you that the State has the entire burden of proof in this case. How would you feel if [the defendant] didn't testify?

For the first question, a 0 would indicated the juror strongly disagreed with the statement and a 10 would indicate the juror strongly agreed with it. For the second question, a 0 would indicated a jury strongly agreed with the statement while a 10 would indicate the juror strongly disagreed with it. For the final question, a 0 would indicate a juror would not hold it against my client if he did not testify while a 10 would indicate a juror would hold it against my client.

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

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

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

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

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

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

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

I guess I just don't always play well with others

Growing up in Texas I learned at an early age that if you've got a problem with someone for what they said or did, you talk to that person about it. Face to face. It was called being a man (or in this age of enlightenment -- being an adult). Attacking someone anonymously was, and remains, the act of a coward.

I had to deal with a coward down in Fort Bend County this morning. While I don't know with absolute certainty who that coward is, I have a pretty damn good idea. And if that coward is reading this post, I would appreciate it if you would act like an adult and acknowledge yourself. I'm not holding my breath, however.

I had a client appearing on an arraignment setting on a second DWI. After the docket was called, the bailiff (and I want to make this crystal clear -- the bailiff who was involved in this situation handled everything professionally and treated everyone involved with the utmost respect) took my client into the back hall and asked me to come with him. It turned out that Judge Lowery had signed an order revoking my client's bond for an alleged violation of a bond condition that the assistant prosecutor couldn't even point out.

That same prosecutor told me my client had two options this morning: he could accept her offer or he could go into custody until a new bond was set.

I asked the prosecutor if we could approach the judge to discuss this alleged violation and she said no. She told me that only the judge who signed the revocation order could hear the matter. So I headed upstairs to find out when we could get a hearing scheduled. On the way out I told the assistant prosecutor she had a problem with her probable cause affidavit and that we would need to approach the judge on that issue as well.

So up to Judge Lowery's court I went. Just before it was my turn to approach the bench, who should appear out of nowhere? Oh my, it was the assistant prosecutor! She and the judge proceeded to have a conversation -- I think it's a fair bet that they were discussing my client's case without my being present. Oh, what's a little ex parte communication between friends, anyway?

Judge Lowery then told me that we would have to go back downstairs to request a bond hearing after the sitting judge returned from out of town. Interestingly enough, on the revocation order, the judge had written that there would be no new bond until a hearing was held but then it would be set at a given amount with enumerated conditions. First the verdict, then the hearing?

Now it's back to the original court where we approach the judge on my motion to dismiss the information due to an invalid probable cause affidavit. During our time before the judge, the assistant prosecutor not only mislead the court on the purpose of our appearance in court this morning -- she also proceeded to argue a motion that wasn't before the court. Of course we should have a pretty good idea of how my motion before the bench fared. Ironically enough, without being asked, the judge set the bond at the amount listed in the revocation order along with the listed conditions.

As I left the courtroom the bailiff (the same gentleman I mentioned previously) asked me to come outside to the hallway so we could talk. I knew this couldn't be good. I know I was being a pain in the backside of the court and the prosecutor -- but that's my job -- but I couldn't think of anything I had done that would fall outside the lines. What happened next shocked me.

The bailiff told me that Judge Lowery told him that another attorney told her that I had alcohol on my breath. I told the bailiff that I had not been drinking. He told me he didn't want to take me in for public intoxication (WTF?) and asked if I thought I was okay to drive. I assured him I was. He then told me he didn't think I was drunk because he heard me arguing the law to the judge. I told him I knew he was only doing his job and I left -- steamed beyond all belief.

Now who is this coward of whom I speak? Before I approached Judge Lowery I was among my brethren on the defense bar. The only other attorney at the bench when I approached was the assistant prosecutor.

I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County slandered me before the bench -- behind my back, no less. I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County tried to have me arrested because I wouldn't roll over. I will say this much, however. If Judge Susan Lowery thought I was intoxicated or smelled of alcohol in court this morning - she didn't have the decency to tell me to my face.

I have a damn good idea who the coward is. I'm also willing to bet that he or she isn't going to come forward anytime soon. Always remember that a brave man dies but once while a coward dies a thousand times.

Scent identification - the new "poo-poo" science?

The Innocence Project is set to release a report next week that labels scent identification as junk science. Fort Bend County Sheriff's Deputy Keith Pikett is the lightning rod who claims his dogs have picked more than 2,000 suspects out of "scent line-ups."

Deputy Pikett is on the receiving end of two federal lawsuits filed by individuals who Pikett implicated in criminal acts. Charges against the two men have been dropped.

According to this article in the Victoria Advocate, Deputy Pikett's credibility has been challenged as he claims his dogs rarely, if ever, make mistakes.

In 1998, Keith Pikett turned his hobby into a career with the Fort Bend County Sheriff's Office.

Since then, police, prosecutors and the media have praised the deputy and his dogs' work in more than 1,000 investigations.

But Pikett's credibility is being tested in both civil and criminal court. Two federal lawsuits, filed little more than a year apart, claim Pikett's scent lineups are designed to implicate suspects - not to gather objective evidence.

Meanwhile, judges have twice excluded him from testifying as an expert because of questions about the science supporting his work or his honesty.

In 2007, Pikett testified that three of his dogs, Jag, James Bond and Clue, never erred in scent identifications, despite having sniffed hundreds of lineups. A fourth hound, 12-year-old Quincy, performed 1,483 scent lineups and made only two mistakes early in her career, Pikett said.

Last month, Grits for Breakfast posted this article in which he compares Deputy Pikett's dog-and-pony show to the exploits of a horse trainer who was able to influence the "answers" his horses gave to math problems.

Have the courts thrown in the towel on their duty as gatekeepers of scientific evidence?

Adding insult to injury

While I was making my way over the City of Houston Municipal Courthouse this morning to handle a case for a client with a commerical driver's license I noticed that parking prices in the private lots across Houston Street from the courthouse had gone up. No longer does it cost $5 to park a block from the courthouse -- the new rate is $10.

Now I'm fairly cheap when it comes to parking so I will gladly parking a couple of blocks down the road for free and walk to the courthouse. I understand that most folks who venture to the courthouse aren't regulars and don't know they can find free parking just a little ways down Lubbock Street. I also understand that it's absurd that a citizen who has to spend hours in a cramped courtroom also has to spend an outrageous amount of money for the convenience of parking their car.

The same phenomenon can be seen in downtown Houston for those folks unfortunate enough to have to appear at the criminal courthouse, the juvenile courthouse or the family law center. If you don't know that it's cheaper to park near the ballpark, be prepared to fork over $10, $15 or even more for the privilege of parking near the courthouses. The county was nice enough to build a parking garage for the courthouse complex, but they'll charge you as well.

It doesn't have to be this way, does it? Down in Galveston there's plenty of free parking in the courthouse parking lot - and if that's full they built an overflow lot across the street. It's the same thing out in Fort Bend County. Of course there parking lot is undersized, but street parking is plentiful, if you don't mind walking and can remember where you parked.