No quid pro burger

Here's the laugh of the day from Twitter.

Ricky Craig of The Hubcap Grill writes...

Geez. LOL. 4 HPD officers didn't order cause I wouldn't give them 50% off. If I get a speeding ticket will I get 50% off ?

If you drink in Minnesota, don't fall asleep in your car

The Minnesota Supreme Court upheld unanimously the DWI conviction of a man who was found asleep in his car in a parking lot with the keys on the console. There was no evidence that Daryl Fleck had recently operated the car. Mr. Fleck was convicted of driving while intoxicated in 2007 and sentenced to four years in prison.

The key language in the Minnesota DWI statute is "physical control of a motor vehicle." The Court held that a jury could, based on the totality of the circumstances, conclude that Mr. Fleck "was in a position to exercise dominion or control over the vehicle..."

The Minnesota DWI statute doesn't make a distinction between public and private places, making it a crime to "drive, operate or be in physical control of any motor vehicle...within [Minnesota]...under the influence of alcohol."

The Texas DWI statute, on the other hand, makes it illegal to operate a motor vehicle in a public place while intoxicated. Had Mr. Fleck been in the Lone Star State after his little bender, he may have been able to argue that the parking lot of the apartment complex was not a public place. Key to that argument would be whether or not the general public had access to the parking lot. Was the parking lot gated? Did visitors have to check in before entering?

Mr. Fleck could also have argued that there was no evidence of operation since the keys weren't in the ignition, the engine wasn't running and there was no evidence of the last time the car had been driven.

A reprieve for Judge Killer

The special master appointed to hear the State Commission on Judicial Conduct's charges against Judge Sharon Keller of the Court of Criminal Appeals has found that the judge's conduct "[did] not warrant removal from office or further reprimand beyond the public humiliation she has surely suffered."

Of course, while Judge Keller may have suffered public humiliation, at least she is still alive to feel the brunt of it. Michael Richard is dead due, in part, to her actions.

Judge David Berchelmann, Jr., of San Antonio, found that Judge Keller's actions on the day of Mr. Richard's execution did not preven his attorneys, the Texas Defender Service, from filing the necessary documents as there were other avenues for filing available. Judge Berchelmann said TDS bore most of the responsibility for the events of the day.

Judge Berchelmann's findings will now go to the Commission who will decide whether to dismiss the complaint, reprimand Judge Keller or ask the Texas Supreme Court to remove her from office.

Read Judge Berchelmann's findings here.

How 'bout a little rehab?

If a juror cannot set aside his biases and decide a case based upon the merits of that case, an attorney has grounds to strike him for cause. Once a juror admits he can't set those biases aside, that juror cannot be rehabilitated.

In this blog post, Steph from Brooklyn recounts her experience on jury duty and being accosted by a judge when she was noncommittal about her ability to set her biases aside.

He let fly once the door was closed. "Are you going to tell me that you are a Northwestern-educated young woman and that you cannot put your biases aside to be impartial in a court of law?!?" He took out on me all the rage that had been building up inside him for years as busy, educated people figured ways to get out of their civic duty.

I felt bad, but...I had a job that did not look kindly on my taking off work, I was strapped even without the distraction of jury duty. I did not want to serve. I shrugged sheepishly. "I was just answering the lawyers' questions honestly..." I had said. He had stumped away, back into the court room. I was not picked.

Damn that judge. His words rung in my ears today as the lawyers asked virtually the same questions. I was forced to say when asked if I could be impartial despite various and sundry things that I have seen or done, people I knew, that indeed, "Yes, I would try..."

Is that anyway to commend citizens for doing their civic duty?

A special shout out to Dr. Dennis C. Elias, Ph.D., for this find.

This can't look good on a resume

What does one do when you're the top law enforcement official in the county and the driver of the car in which you are riding is stopped and arrested for driving while intoxicated? Why, if you're the top law enforcement official in the county would you allow your campaign manager to get behind the wheel of the car drunk? Why would you get in the passenger seat?

Cuyahoga County (OH) Prosecutor Bill Mason is stuck trying to answer those questions after it was revealed that he was a passenger in a car driven by his friend and campaign manager Tom Regas earlier this month.

Mr. Regas was arrested for DWI after allegedly failing a battery of coordination exercises administered by police. Mr. Regas also declined to take a breath test. When asked how much he had to drink, Mr. Regas said he drank "several" glasses of wine. He said Mr. Mason had consumed about the same amount as he did.

In what must have been some sort of an oversight, the arresting officer failed to note that the County Prosecutor was a passenger. Another officer was kind enough to drive Mr. Mason home and drop off the councilman's car at his house.

Rumors are circulating that Mr. Mason will resign his post under pressure from MADD.

"I've been to the mountaintop"

In honor of Dr. Martin Luther King, Jr. here is the eerily prophetic speech he gave to striking sanitation workers in Memphis on April 3, 1968 - the night before he was assassinated.

Thank you very kindly, my friends. As I listened to Ralph Abernathy and his eloquent and generous introduction and then thought about myself, I wondered who he was talking about. It's always good to have your closest friend and associate to say something good about you. And Ralph Abernathy is the best friend that I have in the world. I'm delighted to see each of you here tonight in spite of a storm warning. You reveal that you are determined to go on anyhow.

Something is happening in Memphis; something is happening in our world. And you know, if I were standing at the beginning of time, with the possibility of taking a kind of general and panoramic view of the whole of human history up to now, and the Almighty said to me, "Martin Luther King, which age would you like to live in?" I would take my mental flight by Egypt and I would watch God's children in their magnificent trek from the dark dungeons of Egypt through, or rather across the Red Sea, through the wilderness on toward the promised land. And in spite of its magnificence, I wouldn't stop there.

I would move on by Greece and take my mind to Mount Olympus. And I would see Plato, Aristotle, Socrates, Euripides and Aristophanes assembled around the Parthenon. And I would watch them around the Parthenon as they discussed the great and eternal issues of reality. But I wouldn't stop there.

I would go on, even to the great heyday of the Roman Empire. And I would see developments around there, through various emperors and leaders. But I wouldn't stop there.

I would even come up to the day of the Renaissance, and get a quick picture of all that the Renaissance did for the cultural and aesthetic life of man. But I wouldn't stop there.

I would even go by the way that the man for whom I am named had his habitat. And I would watch Martin Luther as he tacked his ninety-five theses on the door at the church of Wittenberg. But I wouldn't stop there.

I would come on up even to 1863, and watch a vacillating President by the name of Abraham Lincoln finally come to the conclusion that he had to sign the Emancipation Proclamation. But I wouldn't stop there.

I would even come up to the early thirties, and see a man grappling with the problems of the bankruptcy of his nation. And come with an eloquent cry that we have nothing to fear but "fear itself." But I wouldn't stop there.

Strangely enough, I would turn to the Almighty, and say, "If you allow me to live just a few years in the second half of the 20th century, I will be happy."

Now that's a strange statement to make, because the world is all messed up. The nation is sick. Trouble is in the land; confusion all around. That's a strange statement. But I know, somehow, that only when it is dark enough can you see the stars. And I see God working in this period of the twentieth century in a way that men, in some strange way, are responding.

Something is happening in our world. The masses of people are rising up. And wherever they are assembled today, whether they are in Johannesburg, South Africa; Nairobi, Kenya; Accra, Ghana; New York City; Atlanta, Georgia; Jackson, Mississippi; or Memphis, Tennessee -- the cry is always the same: "We want to be free."

And another reason that I'm happy to live in this period is that we have been forced to a point where we are going to have to grapple with the problems that men have been trying to grapple with through history, but the demands didn't force them to do it. Survival demands that we grapple with them. Men, for years now, have been talking about war and peace. But now, no longer can they just talk about it. It is no longer a choice between violence and nonviolence in this world; it's nonviolence or nonexistence. That is where we are today.

And also in the human rights revolution, if something isn't done, and done in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed. Now, I'm just happy that God has allowed me to live in this period to see what is unfolding. And I'm happy that He's allowed me to be in Memphis.

I can remember -- I can remember when Negroes were just going around as Ralph has said, so often, scratching where they didn't itch, and laughing when they were not tickled. But that day is all over. We mean business now, and we are determined to gain our rightful place in God's world.

And that's all this whole thing is about. We aren't engaged in any negative protest and in any negative arguments with anybody. We are saying that we are determined to be men. We are determined to be people. We are saying -- We are saying that we are God's children. And that we are God's children, we don't have to live like we are forced to live.

Now, what does all of this mean in this great period of history? It means that we've got to stay together. We've got to stay together and maintain unity. You know, whenever Pharaoh wanted to prolong the period of slavery in Egypt, he had a favorite, favorite formula for doing it. What was that? He kept the slaves fighting among themselves. But whenever the slaves get together, something happens in Pharaoh's court, and he cannot hold the slaves in slavery. When the slaves get together, that's the beginning of getting out of slavery. Now let us maintain unity.

Secondly, let us keep the issues where they are. The issue is injustice. The issue is the refusal of Memphis to be fair and honest in its dealings with its public servants, who happen to be sanitation workers. Now, we've got to keep attention on that. That's always the problem with a little violence. You know what happened the other day, and the press dealt only with the window-breaking. I read the articles. They very seldom got around to mentioning the fact that one thousand, three hundred sanitation workers are on strike, and that Memphis is not being fair to them, and that Mayor Loeb is in dire need of a doctor. They didn't get around to that.

Now we're going to march again, and we've got to march again, in order to put the issue where it is supposed to be -- and force everybody to see that there are thirteen hundred of God's children here suffering, sometimes going hungry, going through dark and dreary nights wondering how this thing is going to come out. That's the issue. And we've got to say to the nation: We know how it's coming out. For when people get caught up with that which is right and they are willing to sacrifice for it, there is no stopping point short of victory.

We aren't going to let any mace stop us. We are masters in our nonviolent movement in disarming police forces; they don't know what to do. I've seen them so often. I remember in Birmingham, Alabama, when we were in that majestic struggle there, we would move out of the 16th Street Baptist Church day after day; by the hundreds we would move out. And Bull Connor would tell them to send the dogs forth, and they did come; but we just went before the dogs singing, "Ain't gonna let nobody turn me around."

Bull Connor next would say, "Turn the fire hoses on." And as I said to you the other night, Bull Connor didn't know history. He knew a kind of physics that somehow didn't relate to the transphysics that we knew about. And that was the fact that there was a certain kind of fire that no water could put out. And we went before the fire hoses; we had known water. If we were Baptist or some other denominations, we had been immersed. If we were Methodist, and some others, we had been sprinkled, but we knew water. That couldn't stop us.

And we just went on before the dogs and we would look at them; and we'd go on before the water hoses and we would look at it, and we'd just go on singing "Over my head I see freedom in the air." And then we would be thrown in the paddy wagons, and sometimes we were stacked in there like sardines in a can. And they would throw us in, and old Bull would say, "Take 'em off," and they did; and we would just go in the paddy wagon singing, "We Shall Overcome." And every now and then we'd get in jail, and we'd see the jailers looking through the windows being moved by our prayers, and being moved by our words and our songs. And there was a power there which Bull Connor couldn't adjust to; and so we ended up transforming Bull into a steer, and we won our struggle in Birmingham. Now we've got to go on in Memphis just like that. I call upon you to be with us when we go out Monday.

Now about injunctions: We have an injunction and we're going into court tomorrow morning to fight this illegal, unconstitutional injunction. All we say to America is, "Be true to what you said on paper." If I lived in China or even Russia, or any totalitarian country, maybe I could understand some of these illegal injunctions. Maybe I could understand the denial of certain basic First Amendment privileges, because they hadn't committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for right. And so just as I say, we aren't going to let dogs or water hoses turn us around, we aren't going to let any injunction turn us around. We are going on.

We need all of you. And you know what's beautiful to me is to see all of these ministers of the Gospel. It's a marvelous picture. Who is it that is supposed to articulate the longings and aspirations of the people more than the preacher? Somehow the preacher must have a kind of fire shut up in his bones. And whenever injustice is around he tell it. Somehow the preacher must be an Amos, and saith, "When God speaks who can but prophesy?" Again with Amos, "Let justice roll down like waters and righteousness like a mighty stream." Somehow the preacher must say with Jesus, "The Spirit of the Lord is upon me, because he hath anointed me," and he's anointed me to deal with the problems of the poor."

And I want to commend the preachers, under the leadership of these noble men: James Lawson, one who has been in this struggle for many years; he's been to jail for struggling; he's been kicked out of Vanderbilt University for this struggle, but he's still going on, fighting for the rights of his people. Reverend Ralph Jackson, Billy Kiles; I could just go right on down the list, but time will not permit. But I want to thank all of them. And I want you to thank them, because so often, preachers aren't concerned about anything but themselves. And I'm always happy to see a relevant ministry.

It's all right to talk about "long white robes over yonder," in all of its symbolism. But ultimately people want some suits and dresses and shoes to wear down here! It's all right to talk about "streets flowing with milk and honey," but God has commanded us to be concerned about the slums down here, and his children who can't eat three square meals a day. It's all right to talk about the new Jerusalem, but one day, God's preacher must talk about the new New York, the new Atlanta, the new Philadelphia, the new Los Angeles, the new Memphis, Tennessee. This is what we have to do.

Now the other thing we'll have to do is this: Always anchor our external direct action with the power of economic withdrawal. Now, we are poor people. Individually, we are poor when you compare us with white society in America. We are poor. Never stop and forget that collectively -- that means all of us together -- collectively we are richer than all the nations in the world, with the exception of nine. Did you ever think about that? After you leave the United States, Soviet Russia, Great Britain, West Germany, France, and I could name the others, the American Negro collectively is richer than most nations of the world. We have an annual income of more than thirty billion dollars a year, which is more than all of the exports of the United States, and more than the national budget of Canada. Did you know that? That's power right there, if we know how to pool it.

We don't have to argue with anybody. We don't have to curse and go around acting bad with our words. We don't need any bricks and bottles. We don't need any Molotov cocktails. We just need to go around to these stores, and to these massive industries in our country, and say, "God sent us by here, to say to you that you're not treating his children right. And we've come by here to ask you to make the first item on your agenda fair treatment, where God's children are concerned. Now, if you are not prepared to do that, we do have an agenda that we must follow. And our agenda calls for withdrawing economic support from you."

And so, as a result of this, we are asking you tonight, to go out and tell your neighbors not to buy Coca-Cola in Memphis. Go by and tell them not to buy Sealtest milk. Tell them not to buy -- what is the other bread? -- Wonder Bread. And what is the other bread company, Jesse? Tell them not to buy Hart's bread. As Jesse Jackson has said, up to now, only the garbage men have been feeling pain; now we must kind of redistribute the pain. We are choosing these companies because they haven't been fair in their hiring policies; and we are choosing them because they can begin the process of saying they are going to support the needs and the rights of these men who are on strike. And then they can move on town -- downtown and tell Mayor Loeb to do what is right.

But not only that, we've got to strengthen black institutions. I call upon you to take your money out of the banks downtown and deposit your money in Tri-State Bank. We want a "bank-in" movement in Memphis. Go by the savings and loan association. I'm not asking you something that we don't do ourselves at SCLC. Judge Hooks and others will tell you that we have an account here in the savings and loan association from the Southern Christian Leadership Conference. We are telling you to follow what we are doing. Put your money there. You have six or seven black insurance companies here in the city of Memphis. Take out your insurance there. We want to have an "insurance-in."

Now these are some practical things that we can do. We begin the process of building a greater economic base. And at the same time, we are putting pressure where it really hurts. I ask you to follow through here.

Now, let me say as I move to my conclusion that we've got to give ourselves to this struggle until the end. Nothing would be more tragic than to stop at this point in Memphis. We've got to see it through. And when we have our march, you need to be there. If it means leaving work, if it means leaving school -- be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.

Let us develop a kind of dangerous unselfishness. One day a man came to Jesus, and he wanted to raise some questions about some vital matters of life. At points he wanted to trick Jesus, and show him that he knew a little more than Jesus knew and throw him off base....

Now that question could have easily ended up in a philosophical and theological debate. But Jesus immediately pulled that question from mid-air, and placed it on a dangerous curve between Jerusalem and Jericho. And he talked about a certain man, who fell among thieves. You remember that a Levite and a priest passed by on the other side. They didn't stop to help him. And finally a man of another race came by. He got down from his beast, decided not to be compassionate by proxy. But he got down with him, administered first aid, and helped the man in need. Jesus ended up saying, this was the good man, this was the great man, because he had the capacity to project the "I" into the "thou," and to be concerned about his brother.

Now you know, we use our imagination a great deal to try to determine why the priest and the Levite didn't stop. At times we say they were busy going to a church meeting, an ecclesiastical gathering, and they had to get on down to Jerusalem so they wouldn't be late for their meeting. At other times we would speculate that there was a religious law that "One who was engaged in religious ceremonials was not to touch a human body twenty-four hours before the ceremony." And every now and then we begin to wonder whether maybe they were not going down to Jerusalem -- or down to Jericho, rather to organize a "Jericho Road Improvement Association." That's a possibility. Maybe they felt that it was better to deal with the problem from the causal root, rather than to get bogged down with an individual effect.

But I'm going to tell you what my imagination tells me. It's possible that those men were afraid. You see, the Jericho road is a dangerous road. I remember when Mrs. King and I were first in Jerusalem. We rented a car and drove from Jerusalem down to Jericho. And as soon as we got on that road, I said to my wife, "I can see why Jesus used this as the setting for his parable." It's a winding, meandering road. It's really conducive for ambushing. You start out in Jerusalem, which is about 1200 miles -- or rather 1200 feet above sea level. And by the time you get down to Jericho, fifteen or twenty minutes later, you're about 2200 feet below sea level. That's a dangerous road. In the days of Jesus it came to be known as the "Bloody Pass." And you know, it's possible that the priest and the Levite looked over that man on the ground and wondered if the robbers were still around. Or it's possible that they felt that the man on the ground was merely faking. And he was acting like he had been robbed and hurt, in order to seize them over there, lure them there for quick and easy seizure. And so the first question that the priest asked -- the first question that the Levite asked was, "If I stop to help this man, what will happen to me?" But then the Good Samaritan came by. And he reversed the question: "If I do not stop to help this man, what will happen to him?"

That's the question before you tonight. Not, "If I stop to help the sanitation workers, what will happen to my job. Not, "If I stop to help the sanitation workers what will happen to all of the hours that I usually spend in my office every day and every week as a pastor?" The question is not, "If I stop to help this man in need, what will happen to me?" The question is, "If I do not stop to help the sanitation workers, what will happen to them?" That's the question.

Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge to make America what it ought to be. We have an opportunity to make America a better nation. And I want to thank God, once more, for allowing me to be here with you.

You know, several years ago, I was in New York City autographing the first book that I had written. And while sitting there autographing books, a demented black woman came up. The only question I heard from her was, "Are you Martin Luther King?" And I was looking down writing, and I said, "Yes." And the next minute I felt something beating on my chest. Before I knew it I had been stabbed by this demented woman. I was rushed to Harlem Hospital. It was a dark Saturday afternoon. And that blade had gone through, and the X-rays revealed that the tip of the blade was on the edge of my aorta, the main artery. And once that's punctured, your drowned in your own blood -- that's the end of you.

It came out in the New York Times the next morning, that if I had merely sneezed, I would have died. Well, about four days later, they allowed me, after the operation, after my chest had been opened, and the blade had been taken out, to move around in the wheel chair in the hospital. They allowed me to read some of the mail that came in, and from all over the states and the world, kind letters came in. I read a few, but one of them I will never forget. I had received one from the President and the Vice-President. I've forgotten what those telegrams said. I'd received a visit and a letter from the Governor of New York, but I've forgotten what that letter said. But there was another letter that came from a little girl, a young girl who was a student at the White Plains High School. And I looked at that letter, and I'll never forget it. It said simply,

Dear Dr. King,

I am a ninth-grade student at the White Plains High School."

And she said,

While it should not matter, I would like to mention that I'm a white girl. I read in the paper of your misfortune, and of your suffering. And I read that if you had sneezed, you would have died. And I'm simply writing you to say that I'm so happy that you didn't sneeze.

And I want to say tonight -- I want to say tonight that I too am happy that I didn't sneeze. Because if I had sneezed, I wouldn't have been around here in 1960, when students all over the South started sitting-in at lunch counters. And I knew that as they were sitting in, they were really standing up for the best in the American dream, and taking the whole nation back to those great wells of democracy which were dug deep by the Founding Fathers in the Declaration of Independence and the Constitution.

If I had sneezed, I wouldn't have been around here in 1961, when we decided to take a ride for freedom and ended segregation in inter-state travel.

If I had sneezed, I wouldn't have been around here in 1962, when Negroes in Albany, Georgia, decided to straighten their backs up. And whenever men and women straighten their backs up, they are going somewhere, because a man can't ride your back unless it is bent.

If I had sneezed -- If I had sneezed I wouldn't have been here in 1963, when the black people of Birmingham, Alabama, aroused the conscience of this nation, and brought into being the Civil Rights Bill.

If I had sneezed, I wouldn't have had a chance later that year, in August, to try to tell America about a dream that I had had.

If I had sneezed, I wouldn't have been down in Selma, Alabama, to see the great Movement there.

If I had sneezed, I wouldn't have been in Memphis to see a community rally around those brothers and sisters who are suffering.

I'm so happy that I didn't sneeze.

And they were telling me --. Now, it doesn't matter, now. It really doesn't matter what happens now. I left Atlanta this morning, and as we got started on the plane, there were six of us. The pilot said over the public address system, "We are sorry for the delay, but we have Dr. Martin Luther King on the plane. And to be sure that all of the bags were checked, and to be sure that nothing would be wrong with on the plane, we had to check out everything carefully. And we've had the plane protected and guarded all night."

And then I got into Memphis. And some began to say the threats, or talk about the threats that were out. What would happen to me from some of our sick white brothers?

Well, I don't know what will happen now. We've got some difficult days ahead. But it really doesn't matter with me now, because I've been to the mountaintop.

And I don't mind.

Like anybody, I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And He's allowed me to go up to the mountain. And I've looked over. And I've seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the promised land!

And so I'm happy, tonight.

I'm not worried about anything.

I'm not fearing any man!

Mine eyes have seen the glory of the coming of the Lord!!

Galveston to ban driving while texting

Well it certainly didn't take Galveston long to ban motorists from texting while driving. The island city made it a Class C misdemeanor to the use "wireless communication devices to view, send or compose an electronic message" while driving. Of course that does lead to the question "What is driving?"

Violators will be subject to a fine of up to $500.

The new ordinance will go into effect ten days after publication in the local paper (approximately January 27, 2010) which should be this Sunday.

See also:

"New advocacy group seeks to ban cell phone use when driving" The Defense Rests (Jan. 13, 2010)

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.

Fun with forensics

Gov. Rick Perry's choice to head the Texas Forensic Science Commission received a slap in the face from the Austin Court of Appeal yesterday. Houston Chronicle columnist Rick Casey thinks the other members of the commission should have been pleased.

Almost twenty-three years ago Michael Morton was convicted of killing his wife in a fit of rage. A bloody bandana was found less than 100 yards away from the body. As Williamson County District Attorney, John Bradley fought for five years to avoid having to run DNA tests on the bandana.

“There are 155,000 inmates in Texas prisons,” he said. “Every single one would like to be somewhere else, and every single one under the standard (Raley) proposes would have the ability to test any piece of evidence they want. That's why the Legislature set up standards for post-conviction tests.”

A federal judge said he “questions (Bradley's) rationale for rejecting the plaintiff's offer to conduct DNA and other testing at their own expense, particularly in light of (his) duties to uphold the Constitution and seek and provide fair and impartial justice,” but it was a matter for the state.

And this is the man the fair-haired one thought would be a good person to preside over a committee reviewing the state of forensic sciences in Texas. This is the man who a Senate committee that he didn't think the commission needed to review past cases.

Needless to say, Mr. Bradley was unavailable for comment.

Sleep deprivation mimics effects of intoxication

According to studies by the National Sleep Foundation and the National Highway Traffic Safety Administration, the symptoms of driving while drowsy mimic those of driving while intoxicated.

Sleepiness can have the following effects:

• Impaired judgment
• Impaired reaction time
• Impaired vision
• Problems with information processing
• Short term memory loss
• Decreased vigilance

The Texas Breath Alcohol Testing Program Operator Manual lists the following effects of alcohol on drivers:

• Impaired judgment
• Impaired psychomotor skills
• Depressed vision
• Problems with information processing

According to a NHTSA survey conducted in 2002, 37% of all drivers have nodded off or fallen asleep at least once while driving. In combating drowsiness behind the wheel:

• 26% of drivers opened a window;
• 17% of drivers drank a caffeinated beverage;
• 15% of drivers pulled off the road; and
• 14% of drivers cranked up the radio.

In the 1990's NHTSA found that there were approximately 56,000 accidents a year attributed to drowsy driving. In a 2008 national survey, the National Sleep Foundation found that only New Jersey made it a crime specifically to fall asleep behind the wheel.

The problem in using drowsy driving as a defense to a drunk driving charge, however, comes about when alcohol is involved because by admitting that your client was impaired, you might just make it easier for the prosecutor to make her case.

Supreme Court hears challenge to confrontation ruling

On January 11, 2010, the United States Supreme Court heard oral arguments in Briscoe v. Virginia (No. 07-11191), in which the Court was asked to vacate a conviction on the grounds that Virginia's former "notice and demand" statute violated defendant's rights under the Confrontation Clause.

Richard Friedman, a professor at the University of Michigan Law School, appeared on behalf of the petitioners and Stephen McCullough, Virginia'a Solicitor General, appeared on behalf of the state.

Justice Sotomayor questioned Mr. Friedman on exactly how a notice and demand statute robbed a criminal defendant of his right to cross-examination. According to the old statute, the state was not required to bring in a lab technician in order to admit a lab report into evidence. The defendant, however, had the right to demand the presence of the lab tech for cross examination.

Justice Breyer questioned Mr. Friedman on the cost of forcing the state to produce all analysts and lab techs who took part in the testing in question. He seemed particularly concerned over the number of lab techs who would have to be produced to satisfy the rule in Melendez-Diaz.

When questioning Mr. McCullough, Justice Breyer was concerned that the "notice and demand" statute would allow for trial by affidavit and, as a hypothetical, asked if Sir Walter Raleigh's accusers made sworn statements that were introduced into evidence, how effective cross examining them about the conditions under which they made their statements would be.

Justice Ginsburg then proposed that Virginia's statute created a situation by which the state could introduce a lab report and rest their case; the defendant would then rest and request a directed verdict on the grounds the state had failed to prove its case; but the motion could not be granted because the lab report was in evidence.

Justice Scalia seemed bothered by the fact that the "notice and demand" statute placed the burden on the defendant and did not address, in plain language, the sanction, if any, against the state should a witness fail to appear.

It would seem to me that since it's the state who's seeking to limit the freedom of its citizens that the burden of prosecuting that case should fall on the state. The defendant is innocent unless proven guilty, not the other way around.

On a more light-hearted note, Mr. Friedman, in his argument, introduced us to the termorthogonal. According to Mr. Friedman, orthogonal means right angle, unrelated or irrelevant. According to Merriam-Webster, however, the term means lying at right angles.

See also:

"Supremes to revisit confrontation question" The Defense Rests (Dec. 21, 2009)

"Trying to get around the Sixth Amendment" The Defense Rests (July 23, 2009)

"No more trial by affidavit in Virginia drunk driving cases" The Defense Rests (July 18, 2009)

"Supreme Court upholds right of confrontation" The Defense Rests (June 25, 2009)

New advocacy group seeks to ban cell phone use while driving

A new advocacy group has formed preaching the evils of talking on cell phones and texting while driving. FocusDriven was born in Grapevine, Texas where a mother lost her daughter due to an accident with a distracted driver.

The group appears to be following MADD's successful blueprint by creating awareness, pushing for legislation and supporting victims.

I would look for a push to create more "cell-free" zones in the next year. We may also begin to see prosecutors issuing subpoenas to cell phone providers to determine if someone was using their phone at the time of any fatality accidents.

See also:

"FocusDriven launch draws nation's attention to distracted driving epidemic" Welcome to the Fast Lane (Jan. 13, 2010)

"Grapevine woman's MADD-like group fights distracted driving" Dallas Morning News (Jan. 13, 2010)

"DWT is more dangerous than DWI" The Defense Rests (Dec. 22, 2009)

Distraction.gov (Official US Government website for distracted driving

Keep an eye out for spies in the sky

According to this story on KPRC-TV, the Houston Police Department recently tested an unmanned drone aircraft that would have the capability to spy on residents in their homes and cars.

Just ask yourself after seeing this piece if the idea of unmanned spy planes above the skies of Houston really makes you feel any safer.

See also:

"Domestic Espionage Alert. Spy Drone Discovered" News Junkie Post (Jan. 8, 2010)

Sorry, so sorry

"...I'm truly sorry." -- Mark McGwire (1/11/10)

"I just really wanted to apologize sincerely..." -- Serena Williams (9/14/09)

"...I offer my profound apology." -- Tiger Woods (12/2/09)

Main Entry: apol·o·gy

Pronunciation: \ə-ˈpä-lə-jē\

Function: noun

Inflected Form(s): plural apol·o·gies

Etymology: Middle French or Late Latin; Middle French apologie, from Late Latin apologia, from Greek, from apo- + logos speech — more at Legend

Date: 1533

1 a : a formal justification : Defense b : Excuse 2a
2 : an admission of error or discourtesy accompanied by an expression of regret
3 : a poor substitute : Makeshift

As my wife would say, if you have to qualify your apology, it isn't really an apology.

Federal court denies suppression on HIPAA violation

In U.S. v. Elliot (Case No. 08-4160M), a decision published late last month, a federal court in Maryland held that even though the government violated a defendant's rights under HIPAA by issuing a trial subpoena without a court order, HIPAA does not mandate that the evidence be suppressed.

An officer of the U.S. Park Police received a report of an accident on the Baltimore-Washington Parkway. Upon arriving he noticed two cars: one parked partially on the roadway and partially on the shoulder, and the other, driven by the defendant, Ms. Adrian Elliot, against a retaining wall. Ms. Elliot was taken to an area hospital where blood was drawn per hospital protocol. Upon receiving the results of the blood test, the Park Police obtained a warrant and arrested Ms. Elliot.

As the Federal Courts have decided that a person's right to privacy of his medical records in not absolute but must, instead, be balanced against the state's interest in obtaining information, the Maryland court conducted a balancing test and determined that the government's interest in obtaining incriminating evidence outweighed Ms. Elliot's right to privacy.

Keep in mind we are talking about a misdemeanor. Police and prosecutors are tripping over themselves to issue subpoenas for blood records for a crime with a maximum punishment for a first offense of six months in jail. Police and prosecutors are finding complicit judges to sign "carbon copy" search warrants on "No Refusal" weekends for a crime that is one step above a speeding ticket.

See also:

Violation of HIPAA does not mandate exclusion of BAC results (FourthAmendment.com, Jan. 9, 2010)

Didn't they name a surgery after this guy?

Who is Thomas Jhon and why is he spamming on this blog?

These are a few of Mr. Jhon's spam comments (no back-links):

From Defense attorney turns snitch (Jan. 4, 2010)

"Common DUI defense attorney strategies are also examined. After reading this you will be comfortable in obtaining a dui defense lawyer for your current, future or your loved, DUI Defense Lawyer deal your panding pending legal case."

"An experienced DWI Criminal Defense Attorney can examine closely all aspects of a DWI charge, including errors that police may have committed, arrest procedures, use of intimidation and other details that may otherwise be overlooked. Find More Criminal Defense Attorney."

From Today the interlock, tomorrow ... (Jan. 2, 2010) and DWI is big business (Dec. 30, 2009)

"A Tax Attorney to make it simpler, easier and faster. It is not just time, labor and patience that is required substantially for the settlement of tax returns, the area where the worst impact is felt will be your pocket. The Tax Attorney appoints attorneys to keep on persuading tax payers and pay them hefty fees as per their capabilities of being persuasive."

I still have no clue what the hell that's supposed to mean.

From Taxi, dammit! (Dec. 29, 2009)

"Texas DWI attorney also looks into cases regarding drunken driving or for driving under the influence of a substance which is intoxicating. The attorney assists their client in preventing their license from being revoked or suspended, and represents their client at the hearing. Tax Attorney could also call for an acquittal of the case or a dismissal."

Now there's something I didn't know. If you want a DWI case dismissed, just go to a tax attorney. Now why didn't I think of that?

When I typed "Thomas Jhon" into Google I pulled up some articles he wrote that link back to legalinfo-online.com (sorry, but no back-links today). According to the webpage, Legalinfo-Online.com is a "One Stop Platform for all Sorts of Legal Information." And here's what they have to say about themselves:

Welcome to LegalInfo-Online.com - The most comprehensive resource for legal information. It is quite obvious why one should learn about the laws regarding the specific legal issues he/she is facing. Whether your problem is related to taxes, real estate, personal injuries, accidents, family issues, divorce, DWI, crime, business, or bankruptcy, you will be glad to find easy top understand legal information at a single platform on this website.

If you need a good DWI attorney, Legalinfo-Online.com is there for you, too:

A stitch in time saves nine. Caught driving under the influence of alcohol is considered to be a very serious offence with very complex criminal charges. Therefore it is of supreme importance that you choose a DUI defense lawyer to defend you with complete professionalism.

If you have been charged under DUI, your immediate first step should be to get in touch with an attorney who is specialized in exclusively handling such cases. The web is one such means where you can look for a professional online DUI lawyer. Other sources of locating a specialized attorney can be your friends, relatives or maybe even your family lawyer. The Yellow Pages are another good source to locate an experienced DUI attorney, or go through an exhaustive law directory in any library. Remember not to get carried away by flashy ads.

Driving under the influence of alcohol is lethally risky. If you have a blood alcohol concentration (BAC) higher than 0.10, then you are seven times more at risk of getting involved in a fatal road accident, as compared to a person who has not taken any type of alcoholic beverage. In the US, the law states that any person who is found with a BAC greater than 0.08 is considered to be guilty of infringing driving rules, and can thus be convicted under DUI. Punishment is quite severe ranging from penalties to even imprisonment; and this is why you require a good DUI defense lawyer who is well versed with legal connotations to help you. Expert DUI lawyers will successfully find a way out so that the court as well as the DMV system turns favorable towards you.

The domain is registered to legalinfo-online.com and is hosted by Hostmonster.com.

Registrar: FastDomain Inc. Provider Name....: HostMonster.Com Provider Whois...: whois.hostmonster.com Provider Homepage: http://www.hostmonster.com/  Domain Name: LEGALINFO-ONLINE.COM     Created on..............: 2009-01-02 17:03:20 GMT    Expires on..............: 2011-01-02 17:03:18 GMT    Last modified on........: 2010-01-04 04:41:49 GMT

Need to sober up? Take a pill

British scientists are working on developing a synthetic alcohol substitute whose effects could be reversed by taking a pill. Professor David Nutt of Imperial College London is working with benzodiazepines to identify the one with the closest match to alcohol. Diazepam, the chief ingredient in Valium, is a benzodiazepine.

The good professor said he's conducted experiments with various benzodiazepines in which he was under sedation and then lecturing five minutes later. As the drugs in question are controlled substances, any commercial application would require licensing.

According to Professor Nutt the drug would replace alcohol in wine, spirits and beer. Ingesting the drug would cause mild euphoria and its effects would be reversible upon taking a pill. The drug would allow people to drink and then sober up in time to drive home.

Until further experimentation is undertaken, however, no one knows what, if any, the long term effect of taking benzodiazepines would have on the brain and body.

As an aside, Professor Nutt was dismissed as chairman of Britain's Advisory Committee on the Misuse of Drugs due to his criticism of the government's move to toughen marijuana laws. Nutt said he believes illegal drugs should be classified based upon actual evidence of the harm they cause.

Horns and Tide square off for all the roses

Tonight the Texas Longhorns and the Alabama Crimson Tide square off at the Rose Bowl to decide who is the BCS National Champion for 2009. If the 'Horns can keep Mark Ingram in check and if the Texas offensive line can give Colt McCoy enough time to find his receivers, I think they'll be lighting the Tower orange in Austin tonight.

Hook 'em!

Is it even a crime?

Yesterday I read about a 42 year old Houston woman who was charged with the online solicitation of a minor and enticing a minor after returning from a tryst with her teenage paramour in Canada. The boy in question is 16; and while that would make him a minor according to Texas law, in Canada the age of consent is 16. In 31 states, and the District of Columbia, the age of consent is only 16.

When Canadian authorities, acting on a complaint from the boy's mother, found the couple, they took the boy home and told her it was best to leave. She was not arrested because no law had been broken. She was arrested upon her return to Houston.

According to Section 33.021(c) of the Texas Penal Code,

"A person commits [the offense of online solicitation of a minor] if the person, over the internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact..."

The Texas Penal Code defines a minor as "an individual who represents himself...to be younger than 17 years of age, or an individual whom the actor believes to be younger than 17 years of age."

A person "entices a child" when "with the intent to interfere with the lawful custody of a child younger than 18 years, he knowingly entices, persuades or takes the child from the custody of the parent...of such child." Enticing a child is a misdemeanor unless the actor entices the child with the intent to commit a felony. Then enticing becomes a felony, too.

Once again, Canadian authorities had the opportunity to arrest the woman if she had violated Canadian law -- but they didn't.

Was a crime even committed? Can one solicit a minor if the target of the solicitation isn't considered a minor where he lives? Can one entice a minor to commit a felony if the act isn't a felony? Was anyone in the State of Texas harmed by the woman's conduct?

The job of the district attorney is to seek justice for the victims of crime and for the State of Texas -- it is not to prevent possible crimes from occurring. Sure, it's a flashy case sure to grab headlines but what purpose is being served?

This woman's acts may have been distasteful or, as some might say, depraved, but that doesn't make them criminal.

See also:

"Woman arrested for luring" The Barrie Examiner (Jan. 7, 2010)

That's called a scoop

Hey, did y'all know the Montgomery County (TX) DA was putting the names of people arrested on suspicion of DWI on Twitter? Well, apparently someone at the Houston Chronicle ("Houston's leading information source") just found out.

My inside sources tell me that the Chronicle has just found out that Tiger Woods had an affair, Michael Jackson died and Barack Obama is in the White House. Details to follow...

Manufacturing memories

According to this article in the new issue of Scientific American, researchers at the University of California, Irvine, were able to manufacture memories for 25% of the subjects in a memory study. The ability to "create" memories of events that never took place places further doubt about the reliability of identification testimony by eyewitnesses.

In the study, Drs. Elizabeth Loftus and Jacqueline Pickrell gave test subjects written accounts of four incidents that took place during the subjects' lives. Three of the accounts were of actual events the occurred and the fourth was made up. Researchers made up a tale of the test subject being lost at a shopping mall at a young age. To make it more "authentic," a relative provided details about the mall. Surprisingly enough, 25% of the test subjects said they remembered the incident -- even though it never happened.

The act of remembering, says eminent memory researcher and psychologist Elizabeth F. Loftus of the University of California, Irvine, is “more akin to putting puzzle pieces together than retrieving a video recording.”

Unfortunately jurors put great weight on identification testimony, even though the eyewitness may be testifying about an event that took place years before. Jurors place even more weight on the testimony if the witness claims to be very confident about the identification (even though studies have indicated that the confidence of the witness has very little to do with the accuracy of the identification).

The barring of expert testimony regarding the fallibility of eyewitness identification lends additional credence to identification testimony, as courts seem loathe to allow testimony regarding laboratory studies on memory. Yet, according to The Innocence Project, 73% of the people exonerated as the result of DNA testing were convicted largely on eyewitness testimony.

When considering eyewitness testimony, just remember that old experiment where someone ran into the room while the teacher was lecturing. Do you recall how many people had different memories of the incident? Just imagine what would happen when you add the stress of witnessing an actual criminal event.

Making a molehill out of a mountain

I was watching Everest: Beyond the Limit on Discovery Channel the other night and was struck by the complexity of organizing an expedition to the top of the world. The expedition leader must account for the weather, the health of the climbers and what everyone else on the mountain is doing. Make a wrong call and you can end up with a tragedy.

• For a harrowing account of the deadliest day on the mountain, check out John Krakauer's book Into Thin Air.

Guides must decide what time to leave camp each morning (more like middle of the night) in order to avoid unstable conditions in the day light and to stay out of traffic jams on the upper slopes. Some leaders impose rigid time limits on climbers on "summit day" in order to conserve bottled oxygen. The organizers must also decide who gets to pursue their dream and who goes home without seeing the summit. Send up a climber suffering from illness or injury and you could wind up with two or more dead climbers.

On one day this past May, over 100 climbers assaulted Everest's summit on the busiest day ever on top of the mountain. One error here, one misstep there and one miscalculation in base camp and the day could have turned out tragic. Fortunately for all involved, the day was a success.

Trial work is also about handling the details, managing those around you and coping with the things you can't control. Do it properly and the most unmanageable matter becomes manageable. Do it wrong and the consequences can be no less catastrophic for your client.

Defense attorney turns snitch

Federal prosecutors used an informant to gather information from Shannon Williams, suspected of operating a multi-million dollar drug ring from inside the Douglas (NE) County Jail.

Mr. Williams bragged about his drug dealing exploits to his jailhouse visitor. He asked his visitor to launder drug money for him. He even used his visitor's cell phone to order hits on his former attorney and his girlfriend's would be paramour.

The investigation began with a U-Haul stopped for speeding in Illinois. The truck was carrying 329 pounds of weed. The driver and passenger told police they had been running 300-400 pounds of marijuana from Arizona to Omaha every three weeks for over a year. Dominoes continued to fall until Mr. Williams was arrested in Arizona walking around naked in a park. He gave the police a fake name and took off to Minnesota. Eventually Douglas County authorities served a warrant on Mr. Williams for a violation of his supervised release on a crack conviction.

Los federales wanted the names of Mr. Williams' drug runners and his other connections -- they needed someone on the inside. And who did they choose? Who did they think was the person who could best betray Mr. Williams' trust?

Omaha attorney Terry Haddock, who had been hired by Mr. Williams to defend one of his runners.

Terry Haddock sold his soul to the government to build a case against Mr. Williams. Mr. Williams claims that Terry Haddock was representing him.

“I would highly recommed this attorney. Best Money ever spent!” -- client review from Avvo.com

Why else would Mr. Williams trust Mr. Haddock with the secrets of his business? Why else would Mr. Williams ask him to launder money? Why else would he use Mr. Haddock's phone to arrange hits? Because he trusted Mr. Haddock. And why did he trust Mr. Haddock? Because he thought Mr. Haddock was representing him.

Talk about outsourcing your ethics.

Judge orders courtroom spectators to submit to drug tests

Benjamin Marchet of South Carolina has filed suit in Federal Court in Tennessee alleging that Dickson County (TN) Judge Durwood Moore ordered him to submit to a urine test on a hunch that he might have been on something. Okay, judges ordering defendants to take drug tests isn't anything out of the ordinary -- and typically not violating the law is a condition of bond.

Only thing is that Mr. Marchet wasn't a defendant. He was a spectator in Judge Moore's courtroom.

In his response to Mr. Marchet's claim that the judge lacked probable cause or reasonable suspicion to order the drug test, Judge Moore defended his actions by saying it was the routine policy of his court.

Well it's also routine policy in Harris County to deny appointed counsel to anyone who is able to post bond and to deny requests for personal bonds for defendants who can't post bond. That doesn't make it right, either.

Today the interlock, tomorrow...

Senator Frank Lautenberg (D.-NJ) and Senator Tom Udall (D.-NM) have introduced the Drunk Driver Repeat Offender Prevention Act that would require states to mandate the installation of an ignition interlock device in the car of anyone convicted of driving while intoxicated. The device would have to remain in the car for at least six months.

According to the proposed legislation if a state refused to go along with this new federal mandate it could lose some federal highway funding. This is the same method Congress used to "convince" the states to raise their drinking ages t0 21 and to lower the states' per se definition to an alcohol concentration of .08 and higher.

“We know that 50 to 75 percent of drunk drivers continue to drive on a suspended license because they can. With an ignition interlock, DUI offenders can still go to work, school, or anywhere else they need to go. They just can’t drive drunk.” -- Jan Withers, MADD national board member

The goals of the legislation may be laudable, but the means of achieving them is not. First, it is not against the law in any state for a motorist to consume an alcoholic beverage and drive a car -- provided the motorist is not intoxicated or has an alcohol concentration below a certain threshold. Second, the installation of an interlock device will not prevent a person from driving another vehicle. Third, driving while intoxicated is not a federal crime (except in some limited circumstances) and the federal government has no business dictating how states punish acts that violate their own criminal statutes.

In Texas many courts require an ignition interlock device be installed before a restricted license will be issued to a motorist who has been convicted of driving while intoxicated. The motorist could lose his license if the device detects any alcohol. A court may also order the installation of an interlock device if a motorist's license suspension is probated by the court. In that case, the motorist could face a motion to revoke probation if the device detects any alcohol. But what about a motorist who pleads guilty, receives time served and never applies for a restricted license? What sanction could a court place on that motorist?

Maybe the next step in this assault on personal liberty and our constitutional rights will be a bill forcing states to place all motorists convicted of DWI on probation. How palatable is that option?