"First the punishment, then the trial"

On September 1, 2009, law enforcement officers in Texas won't have to worry about niceties such as the Fourth Amendment should a suspected drunk driver exercise his Constitutional right to refuse a breath test. He will be able to order a blood draw without the hassle of a warrant.

No more need to demonstrate probable cause. No more need to persuade a judge to sign a warrant. No more annoying criminal defense attorneys litigating the Fourth Amendment.

As the law stands today, a police officer may request a sample of a driver's breath or blood if there is probable cause to believe the motorist is driving while intoxicated. The motorist is free to decline the officer's request and risk having his driver's license suspended. The law authorizes a forced blood draw in the event there was an accident and another person with either killed, is expected to die or suffers a serious bodily injury.

If the driver refuses the officer's request for a breath or blood test, the officer may force the driver to submit to a blood test if a judge (at the county court level or higher) signs a warrant authorizing the blood draw. Those warrants, however, are subject to litigation regarding their validity.

Come September 1, an officer may require a motorist to submit to a blood test in any accident in which anyone is injured, regardless of the severity (or lack thereof) of the injury. In addition, any judge or magistrate (which would include municipal court judges) who is a licensed attorney, will be authorized to sign a blood warrant in a DWI case.

These changes, along with prosecutors forcing defendants into pretrial diversion programs in Harris County, just serve to illustrate the erosion of constitutional protections for those suspected of driving while intoxicated.

What's the deal, Roger?

NFL Commissioner (Judge, Jury and Executioner) Roger Goodell has spoken and Michael Vick has been (conditionally) reinstated to NFL-playerhood. Mr. Vick will be allowed to sign with a team and play in their final two preseason games but he will have to sit out at least the first five games of the regular season.

While Mr. Vick's conduct off the field may have been reprehensible, there are players on teams' rosters who did far worse. Mr. Vick gave up the richest contract in NFL history, was in federal custody for 23 months, lost two years in the prime of his career and had to declare bankruptcy.

This conditional reinstatement just adds insult to injury. How many teams are willing to take a chance on signing him without knowing for certain he'll be able to play in the upcoming season?

Mr. Vick paid a very steep price for his misdeeds and I daresay that 23 months under federal supervision trumps Donte Stallworth's 24 days in the county jail and probation for killing another person. Ray Lewis was present for the stabbing death of an individual in Atlanta - he was never punished by the NFL. Leonard Little was convicted twice of DWI -- including one case in which he killed someone. He was never punished by the NFL.

Why is Vick facing the ire of the commish? Is it because he lied when the commish asked him what was up with the hubbub in Virginia? Was it because he didn't admit to the commish that he was involved in the dog fighting operation? Hey, Goodell, wake up! You're an attorney and you know damn well that Vick's attorneys would have (or at least should have) told him not to admit to anything.

Presumed innocent?

I'm a defense attorney. I'm supposed to believe that we are all innocent unless proven guilty beyond all reasonable doubt. That's what I say when I walk into the courtroom.

That's what I say even when I know that my client was too drunk to drive.

And I believe it when I say it.

I'm not defending my client's actions, I'm defending our constitutional rights by putting the state to its burden.

Then why is it so hard to say it when the alleged wrongdoer is a police officer? Why am I so willing to believe what I read in the paper about his alleged misdeeds? Why does the same mechanism that starts ticking off possible defenses, explanations and excuses when a client sits down across from me shut down when the alleged wrongdoer is a police officer?

A day in the life...

6:00 am

Get out of bed and go downstairs for 30 minutes of pilates before breakfast.

6:30 am

Little one makes her way downstairs saying "Eat! Eat!" I head into the kitchen and whip up breakfast for the little one.

7:00 am

Wife comes downstairs to exercise and watch the little one while she finishes her breakfast. I head upstairs to get ready for work.

7:40 am

In the car and headed to municipal court. My client is a truck driver from Florida who got pulled over while driving through. He has a commercial driver's license so it's either a dismissal or we're going to trial.

8:20 am

After another attorney tells me they are training prosecutors this week and that I should expect to be in court until 11:00, I approach one of the baby prosecutors and pitch my case. Okay, I told her the officer wasn't there and asked her to dismiss the case so I could run to the county courthouse. I'll be damned if she didn't do it.

8:30 am

I approach the judge and ask him to pull up my client's case. He does and announces that it is dismissed. I tell my client to sit and wait for the paperwork and I make my way out the door. I don't think I've ever been in and out of the municipal courthouse in 30 minutes before.

9:00 am

I walk into a misdemeanor courtroom on the 11th floor of the Harris County Criminal (In)justice Center and say hello to my client who was accused of possessing marijuana (a Class B misdemeanor). I proceed to fill out the attorney of record form and hand it to the court's clerk.

9:10 am

I talk to one of the prosecutors about reducing my client's charge to Class C possession of drug paraphenalia (the equivalent of a traffic ticket). He tells me I have to talk to the chief who is running late. He also tells me the judge wasn't there and we would have to wait on one of the other judges to take pleas.

9:20 am

The chief prosecutor shows up. I pitch my case for a reduction and he says "okay." I talk to my client who is thrilled and we go into one of the witness rooms to go over the plea papers. It turns out that one of the smartest things my client did was consent to the officer's search request and tell him there was a pipe in the glovebox. The officer never did look anywhere else and may (or may not) have missed some other choice goodies.

10:00 am

Waiting for a judge. Any judge.

10:05 am

I run downstairs to reset a case and return to find... no judge. So I decide to run over to the civil courthouse to file an unopposed motion for continuance in a contract dispute. When I get back, of Glory of Glories, there is a judge sitting on the bench.

10:30 am

I leave the criminal courthouse and hike back to my car for the trip down to Galveston to hammer out a deal on a felony child abandonment case. My client couldn't afford to post a bond and had been sitting in jail for eight weeks.

Last Friday I filed a handwritten request for an examining trial because none of the prosecutors wanted to discuss a preindictment case with me. Yesterday, after setting the case for an examining trial this coming Wednesday, I got a call from a prosecutor who wanted to discuss the case. I talked her down to attempted child abandonment (a misdemeanor) for time served and she agreed. In order to get the case pled out Monday morning I would have to head down to the island today to get my client's okay.

11:45 am

I meet with my client at the Galveston County Jail and she is ecstatic about the offer. She says "yes." I tell her she'll be getting out on Monday.

12:00 pm

Back to the Galveston County Courthouse to talk to the prosecutor and view a preindictment file in a new case. Prosecutor is out to lunch and the receptionist said since I didn't fax my request over in time I could not review the case file today. Whatever.

12:15 pm

Back to the jail to talk to my new client -- should be interesting since I can't look at the file. Client is no help because he just doesn't know why he was arrested. Hmmm.

12:30 pm

Leaving the island and heading to Mickey D's in LaMarque for a quick bite and a glance at the Houston Press.

1:00 pm

In the car and headed north on the Gulf Freeway toward the office. The drive is over an hour thanks to one accident, a closed lane and a stalled 18-wheeler.

2:30 pm

In the kitchen at the office pouring an ice cold glass of sun tea. Life is good.

I wish I could bottle up this past week and keep it handy for one of those weeks when nothing goes right. It's been a good week - it was a good day - and that's not something that happens all the time.

Trying to get around the Sixth Amendment

Virginia Governor Timothy Kaine has called a special session of the state legislature to get around the Supreme Court's Melendez-Diaz decision that a criminal defendant's confrontation rights are violated when the state is allowed to introduce testimonial affidavits or lab reports into evidence without producing live witnesses.

"If we don't solve it in a special session it really creates a potential problem of people who are charged with very serious crimes being able to escape conviction on technicalities." -- Gov. Timothy Kaine.

The governor, who apparently believes that constitutional protections are "technicalities," decried the cost of producing live witnesses in criminal trials. Funny, I don't recall anything in the Constitution about reducing a state's cost to brand its citizens as criminals for life.

I don't believe you can put a price on protecting an individual from the overreaching arm of the state - particularly when we're talking about a criminal prosecution. If the state is worried about how the three people who calibrate the state's 200 breath test machines are going to get from town to town when subpoenaed for trial, maybe Virginia prosecutors should take a second look at the cases they are prosecuting and decide whether they should be dumped or not.

Forcing the hand of the state

In Texas the state has two ways in which to pursue felony charges against an individual. The state can send the case to a grand jury who, after listing to what the prosecutor has to say and considering the evidence put before it (which may or may not include any evidence presented by the accused), will choose either to issue an indictment (a true bill) or not to issue an indictment (a no bill).

The other method is by an examining trial. If you've ever watched the old Perry Mason then you've seen an examining trial. In an examining trial a judge hears evidence and decides whether or not there is probable cause for continuing to hold the accused for trial.

The accused in a felony case has the right to request an examining trial in his case. That being said, there are very few examining trials held because once the accused submits his request, the District Attorney's first instinct is to put the case before a grand jury. Once the grand jury indicts there is no need for an examining trial.

In a slow-moving case in which the accused is being held in custody awaiting indictment, a request for an examining trial is a very effective method of forcing the state's hand. In most cases the state would rather avoid an examining trial because the proceeding allows the accused to "pin down" the state's witnesses to a story without the state having time to "woodshed" them properly.

Setting the bar high

Yesterday, former U.S. Representative, and current Houston criminal defense attorney, Craig Washington took the state up on an offer of pretrial diversion on an aggravated assault case involving a deadly weapon.

On New Year's Day 2008, Mr. Washington fired three shots at a car after a confrontation in the parking lot of his Houston office. Mr. Washington said he feared for his safety while the teenagers claimed he fired at them without provocation.

Now if the Harris County District Attorney's Office is willing to offer a pretrial diversion on a aggravated assault case, what kind of misdemeanor case would not qualify a citizen accused for the program?

Going out on top

Professional athletes are driven by desire and by ego. They are fueled by ability and conditioning. At some point, however, in the life of every professional athlete, there comes a time when the ability can't keep up with ego.

We've all seen the once-great athlete hanging around one or two years too many. Willie Mays stumbling around the outfield for the Mets. Johnny Unitas running for his life with the Chargers. Richard Petty tooling around at the back end of the field for NASCAR. Miguel Indurain struggling in the Pyrennes.

I think you can add Lance Armstrong to that list. The former seven-time Tour de France champion, who went out on top, came back after a three year retirement in search of his eighth Tour title. His Astana teammate Alberto Contador put an end to that quest on Sunday in the Alps.

Lance's ego was bigger than his ability and the result was his being left in Contador's dust in the very mountains where Lance toyed with the peleton during his heyday.

The same danger confronts attorneys in trial. You've got a witness on the ropes. Your cross examination is spot on. You've exposed his motivation. You've revealed inconsistencies in his story. You've forced him to admit he might have been mistaken.

Then you ask the dreaded "one question too many." After the witness takes your question deep and out of the park you are left to wonder what went wrong. The case was yours to win and now, it's just out there.

Rarely do you know for certain whether you are about to ask that fateful question. But there are a couple of signs that might help you avoid looking like Brad Lidge after Albert Pujols crushed that homerun in the Game 6 of the 2005 NLCS.

First, is the witness smart? Or, to put another way, is the witness a person who testifies regularly? If the answer is yes, you need to be careful once things start rolling your way during cross. Keep your head about you and think about what you're doing.

Second, if the witness has just conceded a number of points and you've got the coup de gras on the tip of your tongue -- don't ask it. Save that question and pose it rhetorically to the jury during closing argument. Then you don't have to worry about being taken deep by a seasoned witness.

No more trial by affidavit in Virginia drunk driving cases

US Supreme Court Justice Scalia's proclamation in the Melendez-Diaz case that no longer was trial by affidavit acceptable in a criminal case was used in a Northern Virginia courtroom to keep a breath test certificate from being admitted into evidence in a DWI trial.

Virginia criminal defense attorney David Bernhard was successful in his argument in a Fairfax County court that allowing the state to introduce a breath test certificate into evidence without producing the officer who performed the breath test violated a defendant's right to confront the witnesses against him.

Fairfax county prosecutors now face the daunting task of figuring out how to arrange for a small number of breath test operators to be available to testify in the 4,000 or so DWI cases filed in that county.

"It's Christmas in July for criminal lawyers who defend drunk drivers." -- Raymond F. Morrogh, Fairfax Commonwealth Attorney (prosecutor).

The handwringing from Virginia prosecutors and Governor Timothy Kaine serves as an example of how residents of Texas are often afforded greater protection under the state consitution than under the U.S. Constitution. In Texas criminal defendants have long had the right to cross examine the breath test operator in a drunk driving trial.

Maybe rulings like this one will convince prosecutors to think twice before trying marginal cases.

Harris County trails only LA and NYC for largest daily jail population

A quarter of the Harris County budget goes to fund law enforcement, with over $750,000 spent every day on inmates at the Harris County Jail, according to a report in Forbes. Harris County has the third largest daily jail population - trailing only Los Angeles County and New York City.

Over a three-year stretch the number of inmates increased more than 21%.

"Many people are in jail because they are too poor to post bail. If you have a first-class pretrial program, a county is often in a better position because they can carefully analyze the individual, can figure out better what needs to be done." -- Donald Murray, senior legislative director, National Association of Counties

According to John Dyess, chief administrative officer for the Harris County Sheriff's Office, the county spends some $200 million a year for detention, money that could be spent in more productive ways.

"This really wasn't built for this. I don't know if we can build our way out of where we are today." - John Dyess

The Justice Policy Institute estimates that almost two-thirds of the nation's jail population are awaiting trial. And why are they waiting behind bars? Because almost four out of every five inmates made less than $2,000 a month prior to being arrested.

Between 1986 and 2005, the number of arrests for violent crimes increased 25% but the number of arrests for possession of illegal drugs increased 150%.

The numbers are appalling. The wholesale eviseration of the Eigth Amendement's prohibition against unreasonable bail is unconscionable. The only purpose of bail is to insure the accused's appearance in court. It is not meant to be a tool of punishment. We often forget that these men and women held in jail awaiting trial haven't been convicted of anything. They are innocent unless the state proves them guilty beyond all reasonable doubt.

Ex-judge named Harris County jail czarina

Interesting news that ex-State District Judge Caprice Cosper has been named to head a commission to figure out what to do about the overcrowded Harris County Jail. No one from the defense bar was named to the committee.

(Author's note: I made a mistake in the original post. I got Ms. Cosper and former judge Devon Anderson mixed up when I commented that Ms. Cosper was joined at the hip with Brock Thomas. I offer my sincere apologies for that mistake. In my defense, however, it can be hard keeping track of all the roadkill left after the Democrats' near sweep in the 2008 judicial contests in Harris County.)

Ms. Cosper had already returned to the public trough as executive assistant to County Commissioner Steve Radack. Old habits die hard.

As for the state of the Harris County Jail? As of this past Monday (July 13, 2009), of the 11,107 people housed in the jail, 6,064 were awaiting trial. That means that 55% of the people housed in the county jail are folks who either couldn't afford to post bond or who were being held without bond. That is absurd!

According to the Eighth Amendment, a court may not set an unreasonable bond. The Texas Court of Criminal Appeals has held that bail should not be punitive. Something's wrong when over half the jail population hasn't even been convicted of anything. So much for the presumption of innocence.

Squeezing the working poor

The working poor have long been the victims of a cruel trick when it comes to health care in this country - they make too much to qualify for government-funded health plans but too little to be able to afford to purchase private coverage.

Add access to justice to the hardships facing the working poor in Harris County.

Middle class and wealthy defendants can afford to retain the attorney of their choosing should the need occur. Those classified as indigent by the judges of Harris County may elect to have counsel appointed to represent them (see...). However, those who can post a bond, or who can find friends or family to post a bond, often find themselves in "no man's land."

If a criminal defendant in Harris County cannot afford to post a bond, he is considered to be indigent and is eligible for a court-appointed attorney. That's because the definition of indigency in the Harris County Criminal (In)justice Center is one who can't figure out a way to get himself bonded out of the county jail.

If you are able to raise enough money to post a bond, you must prove to the court that you don't have enough money to hire an attorney. One judge (on the 8th floor) tells those in street clothes asking for a court-appointed attorney that they must sell everything of value they own and then show him that they can't hire an attorney with the proceeds.

"The prime object or purpose of bail is to secure the presence of an accused upon trial of an accusation against him. It is not a revenue measure intended to be a substitute for a fine, but is intended to secure the trial of the alleged offender rather than turn his securities or those of his bondsman into a penalty." Trammel v. State, 529 SW2d 528 (Tex.Crim.App. 1975)

The judges in Harris County seem to have forgotten that every person charged with a crime is innocent unless the state proves them guilty beyond a reasonable doubt. Bail should be set at a level that is low enough for a defendant to post it but at a level that is high enough to guarantee his appearance in court.

The ability to post a bond, in and of itself, should not be the test to determine whether a person qualifies for a court-appointed attorney. Such a policy ignores the reality that many of the working poor that find themselves behind bars raise money from friends and relatives to post a bond so that they can go back to work to support their families. It also ignores the fact that our jails were not built not to house citizens awaiting trial but to house those who were found guilty at trial.

The Sixth Amendment guarantees the right to counsel for those accused of committing a criminal act. Harris County's policy is the state's way of short-circuiting the Constitution and forcing the working poor to accept convictions (and the consequences thereof) without the benefit of representation.

Next!

Today I witnessed a sad act of injustice performed at the Harris County Criminal (In)justice Center. In County Criminal Court at Law No. 1, the presiding judge, Hon. Reagan Helm sat on the bench while 14 inmates in Harris County orange were paraded before him in shackles. Three "attorneys" stood alongside this sea of humanity and proceeded to plead out their "clients."

It was such a mess that the judge was unable to keep track of who was pleading to what.

The notion that anyone conducted even a cursury examination of the facts behind the arrests is a fairy tale.

Everyone involved in this mockery of justice should be ashamed of themselves and the role they played.

While I was in the courtroom this morning to reset a case, I found a printout that listed, in graphic form, the number of open cases on each of the 15 county misdemeanor courts' dockets:

CC1 950 CC9 903

CC2 986 CC10 911

CC3 763 CC11 729

CC4 830 CC12 786

CC5 873 CC13 963

CC6 739 CC14 687

CC7 741 CC15 775

CC8 859

The average number of open cases per court is 835.

Listening to the judges and the court coordinators, you would think the biggest problem at 1201 Franklin are the large dockets they are forced the manage. The judges put pressure on the coordinators to reduce the size of the docket, the coordinators put pressure on defense attorneys to clear their cases. Defense attorneys put pressure on their clients to "resolve" their cases.

The problem, however, isn't the large docket. The "problem" is too many defense attorneys seem to think their job is protect the constitutional rights of their clients and to hold the State of Texas to its burden of proof.

Maybe instead of pushing defendants to plead guilty, the court should ask the prosecutors to review their cases and to dismiss the ones that are weak factually and legally.

There's got to be a better way

While there is plenty to gripe out with regards to the manner in which the wheels of justice creak in Harris County - there are some aspects of our system that seem to be a bit more efficient than that of our neighbors to the south.

Harris County uses what's called a direct filing system. This means that whenever a person is charged with a criminal offense, once that charge is entered into the Justice Information Management System, a case number and court are assigned. Once that information is assigned an attorney can call the Harris County D.A.'s Office and speak to the prosecutor assigned to that case.

Now don't get me wrong. I enjoy practicing law in Galveston County. It's usually a nice change of pace and I get to deal with a different cast of characters. However, the wheels of justice have fallen off the cart when it comes to felony cases on the island.

When a person is charged with a felony offense on the island, their case is assigned to a court -- but in theory only. The case first goes to the prosecutors on the felony jail docket who are supposed to make initial offers to those folks unfortunate enough not to figure out a way to get bailed out of the county jail. If the case doesn't settle at the jail docket, the file is passed along to the grand jury prosecutors to seek an indictment - a process that moves about as fast as a meandering creek in West Texas. It isn't until after the case has been indicted (which can take 60 days or more), that it is assigned to a courtroom prosecutor.

In the meantime the attorney is lucky if he can find anyone in the DA's office with whom to discuss the case. Add to this the fact that the initial court setting is set about six weeks after the felony jail docket setting, and you're left with a defendant sitting in limbo.

It is time for Galveston County to reform the manner in which felony cases are handled so that defendants aren't sitting in the jail for up to six weeks waiting for the opportunity to resolve their cases.

Ideas, anyone?

Post-script to Harris County's new DWI policy

After speaking with a source in the Harris County DA's office about the new DWI policy I was left wondering what would happen to those poor souls who were not eligible for pretrial diversion. Surely they would not be left to accept 30 days in the county jail or go to the judge without a recommendation.

According to my source, anyone who is deemed not eligible for pretrial diversion would receive the DA's "standard offer" for a DWI: a few days in jail, time served and a fine or 12-18 months probation.

My one remaining question is, with the new policy, will time served and a fine soon be a relic of the past?

Court makes it easier for California DUI defendants to challenge breath tests

Today the California Supreme Court ruled unanimously that defendants in drunk driving cases can challenge accuracy of the state's breath test machine.

Motorists accused of drunk driving can now present evidence that the ratio used by the machine's computer program to calculate the amount of alcohol in their blood that the machine doesn't take into account the driver's own partition ratio, temperature, sex or medical condition. They may also challenge the precision of the machine.

In People v. McNeal, S157565 (July 9, 2009), the Court held that a person charged under the state's "generic" DUI statute (loss of normal use...) has the right to challenge the accuary of the breat test machine, but that a person charged with a per se violation does not because the state mandated the 2100:1 partition ratio in the statute. Mr. McNeal was charged with violating both the generic statute and the per se statute. When he attempted to blow into the machine, it took five blows to produce two valid samples, both reading .10.

The jury convicted on the generic charge but hung on the per se charge.

"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing." Justice Carol A. Corrigan, California Supreme Court.

While we in Texas take for granted our right to challenge the assumptions behind the state's breath test machine, there are plenty of folks accused of DWI that don't have the right to do so. In California the jury is instructed that if a breath test taken within 3 hours of the traffic stop indicates a blood alcohol concentration of .08 or higher, then the jury may infer that the driver was over the legal limit at the time of driving.

I find it very troubling that in some jurisdictions around this country, juries are instructed that they must accept the results of a chemical test in a drunk driving trial. In the end, the state's breath test machine is just another witness; albeit one we don't have the ability to cross examine.

See also:

• California Supreme Court says DUI breath test accuracy can be weighed (San Jose Mercury-News, July 9, 2009)

New DWI policy leaves a lot to be desired

If rumors are to be believed, the new Harris County DWI policy going into effect on August 1, 2009, leaves a lot to be desired.

Apparently a citizen confronted with a first-time DWI will be offered pretrial diversion (if eligible) or 30 days in the county jail. The other option is to ask the judge for probation without a recommendation from the prosecutor.

For those unfortunate enough to pick up a second DWI, the choice will be 60-90 days in the county jail or asking the judge for probation without a recommendation from the prosecutor.

Said an unnamed source, "the plan is to force people into pretrial diversion."

The problem with such a "one size fits all" program is that one size doesn't fit all. There are no two identical drunk driving cases. The driving facts vary, the circumstances vary, the "results" of field sobriety exercises vary, breath test results or refusals vary. Such a program takes all discretion out of the hands of the prosecutors and reduces them to mere functionaries.

We've seen this scenario before - they were called the Federal Sentencing Guidelines and they hamstrung judges until the Booker decision.

Attempting to define the undefineable

What does beyond all reasonable doubt mean to you?

In 1850, the Massachusetts Supreme Court, Commonwealth v. Webster, said reasonable doubt was a mental state in which a jurors "cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

In Cage v. Louisiana, 498 US 39 (1990), the US Supreme Court said what it wasn't. In that case, the high court rejected Louisiana's definition of reasonable doubt as "such doubt that would give rise to a grave uncertainty... A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain."

In Victor v. Nebraska, 511 US 1 (1994), Justice Ruth Bader Ginsberg defined proof beyond a reasonable doubt as "proof that leaves you firmly convinced of the defendant's guilt."

In Sandoval v. California, the US Supreme Court upheld the following definition of reasonable doubt:

"Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence,leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."

The term is not defined as part of the jury charge in Texas courts. Some folks have described beyond a reasonable doubt as that degree of certainty upon which you make your most important decisions.

In 48 states, a jury must return a unanimous verdict in order to convict a citizen of committing a criminal offense. While the requirement of unanimity is not required under the Constitution, it is a pretty good indicator that the state has proven its case beyond a reasonable doubt.

Louisiana and Oregon are the only two states that allow for a conviction upon a jury vote of 10-2 in a felony case. The equates to 5/6 of the panel - that leaves an awful lot of room for doubt, wouldn't you say?

Judge admonished for his "lack of judgment"

Federal Appellate Judge Alex Kozinski was admonished by his colleagues for posting sexually explicit material on a website accessible to the public (See "Judge not lest you be judged").

Kozinski has said he thought the material — which included a video of a man cavorting with a sexually aroused farm animal and a picture of nude women on all fours painted to look like cows — couldn't be seen by the public. The judge has also said he didn't believe any of the images were obscene.

"Is it prurient? I don't know what to tell you," he told the Los Angeles Times in a June 2008 interview. "I think it's odd and interesting. It's part of life."

Kozinski told investigators he sometimes saved e-mail attachments in a subdirectory without looking at them. He said he did not realize they would become available to the public when the family later put a file server online so they could access personal files when away from home.

Judge Kozinski blamed on that good ol' chestnut, a lack of judgment. Funny how that seems to work for those in positions of authority but woe be to poor young person who has one drink too many and is arrested for DWI or who tries to shoplift a couple of small items from a department store. Neither the prosecutor nor the court wants to hear about their lapse in judgment.

A day to celebrate, a day to remember

As we gear up for parades and barbeques and fireworks today, let us never forget the bravery and courage of the 56 men who signed the Declaration of Independence 233 years ago today. Every man who signed it was, in essence, signing his own death warrant.

Here is that most extraordinary document:

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

---

The 56 signatures on the Declaration appear in the positions indicated:

Column 1
Georgia:
Button Gwinnett
Lyman Hall
George Walton

Column 2
North Carolina:
William Hooper
Joseph Hewes
John Penn
South Carolina:
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton

Column 3
Massachusetts:
John Hancock
Maryland:
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
Virginia:
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton

Column 4
Pennsylvania:
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
Delaware:
Caesar Rodney
George Read
Thomas McKean

Column 5
New York:
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris
New Jersey:
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark

Column 6
New Hampshire:
Josiah Bartlett
William Whipple
Massachusetts:
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
Rhode Island:
Stephen Hopkins
William Ellery
Connecticut:
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
New Hampshire:
Matthew Thornton

The bogeyman of illegal immigration

The Houston Police Department, playing on the death of one of its own, is asking the mayor to allow them to ask residents about their immigration status.

“We need to reinstate the (cadet) classes, reinstate the overtime that’s making up for the 1,200-officer shortage, and back off this immigration policy so our officers can be safe. Quit handcuffing our officers so they can identify these criminal aliens, and get them off the street before they can kill police officers.” - Gary Blankinship, Houston Police Officer's Union

It is not against the law for someone from another country to be in the United States without permission. It is against the law for an employer to hire them. It is against the law to use forged paperwork to obtain a job. It is against the law to be here on an expired visa. It is NOT against the law to be here.

With the exception of the Native Americans, we are all the sons and daughters of immigrants - some legal and some not. My ancestors came here from Ireland before the Civil War and made their way down south. I have no idea whether they were here legally when they stepped off that boat. Furthermore, I don't care.

Emma Lazarus' beautiful poem The New Colossus greets those who go to Ellis Island to see the Statue of Liberty. Lady Liberty speaks and proclaims for all to hear:

Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door.

Nowhere does it say only if they have a green card or a visa or some other document giving them "permission" to be here. The United States is unique. We've never erected walls or barriers to prevent people from leaving. People want to come here. People want to be here.

In the Declaration of Independence, Thomas Jefferson wrote that "all men are created equal." The word "citizen" is nowehere to be found in the Bill of Rights.

Go celebrate the Fourth of July. Celebrate freedom. Celebrate liberty. Celebrate Emma Lazarus' words. Celebrate this long-standing experiment in democracy. Celebrate those who gave their lives for this country. Celebrate that your ancestors were welcomed to this land.

Psst, brother, can you spare a million or two?

U.S. District Judge David Godbey of Dallas told R. Allen Stanford that he would be glad to release millions of dollars to cover his defense fees -- if Mr. Stanford could prove that the money wasn't tainted by his alleged fraud. Mr. Stanford had requested $10 million to be placed in escrow to cover his mounting legal expenses.

Mr. Stanford's attorney, Dick DeGuerin told U.S. District Judge David Hittner of Houston that he had yet to be paid for his work on the case. Judge Hittner apparently was concerned about Mr. Stanford having no cash to hire an attorney.

Across downtown at the Harris County Criminal (In)justice Center, however, not much concern is shown for those who can't afford to retain counsel. The rule of thumb is if you can get yourself bonded out, then you can certainly afford to hire an attorney. I've heard one judge tell defendants to sell their cars and pawn anything of value and then, if they can't raise enough cash to hire a lawyer, he would consider their requests for appointed counsel.

“We have not received a penny yet,” DeGuerin said Thursday. He also pointed that out to senior U.S. District Judge David Hittner, who presides over the criminal cases in Houston, during a hearing earlier this week.

“I’ll remind the court that the lawyers haven’t been paid either,” DeGuerin said, after noting that the freeze left his client with “zero, zip, nothing.” Hittner said it was a serious concern that a defendant has no cash for a defense.

As to Mr. DeGuerin's concern about his fee -- that's why we collect it up front. I always consider the down payment to be my fee and anything the client pays after that to be found money.

Court tells jurors to say no to cell phones

The Michigan Supreme Court has banned all electronic communications by jurors during trial. As a result of complaints from prosecutors, judges will begin instructing jurors on September 1, 2009 that they are not to use any hand-held devices while in the jury box or during deliberations.

Prosecutors apparently were worried that some jurors weren't paying attention during trial and that others were using their phones to pull information about the case off the internet.

While I find it interesting that prosecutors called for the ban in Michigan, I agree that Web 2.0 presents a problem in the courtroom. Text messaging, Twitter, Facebook, MySpace and e-mail can all taint the jury process.

Maybe it means we should redefine the instructions we give jurors when they report for jury duty. It's very possible that this notion that a juror should not discuss the case outside deliberations or conduct any research on his own is as useful as the Maginot Line. If we go back 15 years we wouldn't be having this discussion -- the technology didn't exist and it was more realistic to expect a juror to remain insulated. And what good does it do to prohibit the use of the devices during testimony and deliberations when a juror is just as likely to hit the internet at home?

Maybe it's time to request questionnaires in ALL cases, including the most basic misdemeanor cases. Ask the jurors whether they use social media or blog. If they do, ask them what name they use on social media sites or on blogs. Then request time to research each site listed to see if there is anything on the web that could generate a challenge for cause.

What do you think?

Vampires expected to be out in force over the Fourth

How ironic that Harris County is gearing up for another "No Refusal" weekend between the hours of 10pm and 6am on both Friday and Saturday nights. How ironic that on the weekend that we celebrate the signing of the Declaration of Independence - one of the most revolutionary of documents - 233 years ago.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

On the very weekend we commemorate a document that indicted the King of England for his trampling of individual rights and liberties, the Harris County District Attorney's Office and our local criminal (in)justice system are ready to ride roughshod over the Fourth, Fifth and Sixth Amendments.

Turning a traffic stop into something more

I came across an interesting article written by Joe Buckley, president of John E. Reid and Associates, in The Police News this morning as I tooled around the Galveston County Courthouse and the county jail. For those of you not familiary with John E. Reid and Associates, they are the developers of the Reid Technique of interrogation.

"The officer conducting a roadside interview is in a unique position to develop incriminating information. Because the initial stop is for a traffic offense, Miranda warnings are not required. Most of these stops are made when the officer sees a violation occur so the driver already knows that he or she has been caught doing something wrong and this awareness makes it easier to acknowledge other transgressions. Finally, the driver is and car occupants are caught off guard without the opportunity to create a credible alibi or dispose of incriminating evidence that may be in the vehicle."

A DWI case begins, usually, as a simple traffic stop. Of course, the task force officers are just looking for any justification to stop the driver, and, if you watch long enough, someone's going to do something wrong. In the same context, it never ceases to amaze me how many people consent to a police search of their car knowing full well that the officer is going to find something that shouldn't be there. Do you really think that officer who found the cocaine in the center console is going to let you walk because you consented to the search?

"It must be remembered that people stopped for traffic violations are, for the most part, guilty of the offense for which they were stopped and will certainly exhibit symptoms of anxiety as a result of being caught. In this sense, persons stopped for a traffic violation are "guilty" of the violation. However, they may exhibit behavior symptoms of guilt or deception because of involvement in some unrelated criminal activity or because they lied to the police officer's questions..."

When an officer starts questioning a motorist after a traffic stop he's not only interested in what the driver has to say -- he's just as interested in how the driver says what he says. It's something to think about as more states are pushing the police to enforce seatbelt laws. If an officer sees you driving without wearing your seatbelt, he's got as good a reason as any to pull you over... and thus it begins again.

"Persons with nothing to hide pull to the side of the road when the officer turns on lights and siren; when at home, they answer the door when the officer knocks on it and respond to questions without objection. Conversely, it is a classic symptom of guilt for a person to run from the police in response to an effort to stop his vehicle or question the suspect at his home."

Of course it must also follow that only the guilty person is interested in exercising his constitutional rights and demanding that he be afforded the protections found in the Bill of Rights. Maybe we could dispense with the entire trial system and convict people on their willingness to talk to the police.

"Communicating with one's hands occurs when a person is confident and sincere in his statements. Illustrators reinforce the credibility behind the spoken word. The lack of illustrators can be a significant behavior symptom of possible deception. The classic description of a guilty person going through a border stop is that the subject's hands are cemented to the steering wheel at the 11 and 2 o'clock positions and his eyes stare straight ahead at the road. Simiarly, when questioning a child who has done something wrong, the child will hide his hands by putting them in his pockets."

This is the essence of the Reid Technique - the nonverbal cues that either jibe with what's being said or are in stark contrast to the spoken word. Where is someone looking? What are they doing with their hands? How is someone standing?

The Reid Technique also involves an interrogator putting himself in the suspect's shoes and trying to imagine a scenario in which the suspect would feel justified in doing that which he allegedly did. For instance, if a man is suspected of murder, his interrogator may be able to lead the suspect down the path of self defense in an attempt to convice (coerce?) the suspect into admitting he killed the victim. In David Simon's Homicide: A Year on the Killing Streets, the Baltimore detectives referred to this particular technique as the light at the end of the tunnel.

The lesson, as always, is to pay attention when that officer tells you that you have the right to remain silent.