In the State of Texas, a motorist commits the offense of driving while intoxicated if he operates a motor vehicle in a public place.
Motor vehicle is defined in the Texas Penal Code as "a device in, on or by which a person or property is or may be transported or drawn on a highway, except a device used exclusively on stationary rails or tracks."
Recently in Austin, two men were arrested for DWI when police discovered they were riding a horse and a mule down Sixth Street (perfectly legal in Austin) while drunk. While it is pretty clear from the video that at least one of the men is not, shall we say, in complete control of his faculties, did they commit a criminal offense?
While the definition of motor vehicle in Texas is quite broad in scope, a horse or a mule is not "a device." There's also the issue of whether or not a motor vehicle must have a motor. To claim that a horse is a motor vehicle is absurd given the principle that every word in a statute means something.
So, the Austin Police Department charged two individuals with a crime they didn't commit and that the state can never prove, just to get some publicity. It would seem that if anyone is charged with a criminal offense it should be the police officers who should be charged with official oppression for subjecting an individual to an arrest that the officer knew was unlawful.
Thursday, January 13, 2011
State Bar says those opposed to rules changes are liars
Every year I receive a dues notice from the State Bar of Texas. In exchange for my annual dues payment I receive the Texas Bar Journal - which contains little of interest outside the discipline notices. The State Bar is pretty much run by the big "white shoe" law firms in Houston, Dallas and Austin.
Even though most attorneys licensed by the State of Texas are either solos or work for firms of less than five attorneys, the State Bar does not speak for them. And, when it comes to criminal attorneys, we are at the bottom of the food chain. The State Bar would like to pretend we don't exist. Whenever changes are proposed to the disciplinary rules, the State Bar politely ignores the input of the Texas Criminal Defense Lawyers Association.
Such is the case once again as the State Bar has decided it's time to update the disciplinary rules - apparently for no better reason than they haven't been updated it a while.
Most of us in the criminal defense bar charge flat fees to represent clients charged with criminal offenses. To our colleagues in BigLaw, the flat fee is anathema. BigLaw doesn't understand that ordinary folk don't have the resources of Big Insurance Company. BigLaw also doesn't seem to understand that, unlike a civil case, if a criminal case goes bad, the client ends up in jail - and folks in jail aren't too keen on paying that remaining balance on the bill.
We are being asked to vote on a referendum to accept or reject, in whole, proposed changes to the disciplinary rules in the State of Texas. Some of the proposed changes are good - but some are very troubling to criminal defense attorneys.
Chief among these is proposed Rule Number 1.15. This rule lays out the obligations of an attorney who is holding property belonging to a client or another party. Section 1.15(d) reads as follows:
What's the big deal, you ask? How do you define an unearned fee? If you're handling a divorce or a civil matter and you charge your client a retainer, you deposit that retainer in a trust account and withdraw the money as it's earned per the hourly rate you and your client agreed to. How do you determine what's earned in a criminal case?
We don't bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don't know going in how much time I'm going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It's not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don't have the money.
We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can't ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client -- let financial issues get in the middle of that relationship and something's got to break.
There are many criminal defense attorneys throughout the state who are opposed to these rule changes because of the impact they may have on the defense bar. Unfortunately the leadership of the State Bar (who is supposed to represent its members) has taken to smearing the names of those who are opposed to the proposed changes.
The above excerpt is from an e-mail signed by the current president of the State Bar, the immediate past president, the president-elect, the chair of the board, the current president of the Texas Young Lawyers Association along with the immediate past president and the president-elect.
So there you go. If you're opposed to the changes you're a liar.
Some representation, wouldn't you say?
Even though most attorneys licensed by the State of Texas are either solos or work for firms of less than five attorneys, the State Bar does not speak for them. And, when it comes to criminal attorneys, we are at the bottom of the food chain. The State Bar would like to pretend we don't exist. Whenever changes are proposed to the disciplinary rules, the State Bar politely ignores the input of the Texas Criminal Defense Lawyers Association.
Such is the case once again as the State Bar has decided it's time to update the disciplinary rules - apparently for no better reason than they haven't been updated it a while.
Most of us in the criminal defense bar charge flat fees to represent clients charged with criminal offenses. To our colleagues in BigLaw, the flat fee is anathema. BigLaw doesn't understand that ordinary folk don't have the resources of Big Insurance Company. BigLaw also doesn't seem to understand that, unlike a civil case, if a criminal case goes bad, the client ends up in jail - and folks in jail aren't too keen on paying that remaining balance on the bill.
We are being asked to vote on a referendum to accept or reject,
Chief among these is proposed Rule Number 1.15. This rule lays out the obligations of an attorney who is holding property belonging to a client or another party. Section 1.15(d) reads as follows:
[a] lawyer shall deposit unearned fees and advanced expenses into client trust account, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.
What's the big deal, you ask? How do you define an unearned fee? If you're handling a divorce or a civil matter and you charge your client a retainer, you deposit that retainer in a trust account and withdraw the money as it's earned per the hourly rate you and your client agreed to. How do you determine what's earned in a criminal case?
We don't bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don't know going in how much time I'm going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It's not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don't have the money.
We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can't ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client -- let financial issues get in the middle of that relationship and something's got to break.
There are many criminal defense attorneys throughout the state who are opposed to these rule changes because of the impact they may have on the defense bar. Unfortunately the leadership of the State Bar (who is supposed to represent its members) has taken to smearing the names of those who are opposed to the proposed changes.
There is a lot of misinformation being disseminated. This is a self-governance issue. Nobody knows better what is right and wrong with the profession and the justice system than we who practice in it. As a profession, we have the right and the duty to improve and regulate our system.
The above excerpt is from an e-mail signed by the current president of the State Bar, the immediate past president, the president-elect, the chair of the board, the current president of the Texas Young Lawyers Association along with the immediate past president and the president-elect.
So there you go. If you're opposed to the changes you're a liar.
Some representation, wouldn't you say?
Wednesday, January 12, 2011
Harris County Sheriff looks to ankle monitors to reduce overcrowding
Harris County Sheriff Adrian Garcia is looking into allowing low-risk inmate at the county jail to serve their time at home with ankle monitors. A test program will be conducted using 10-20 inmates who work outside the jail under armed guard.
The program seems aimed at inmates who serve weekends in the jail and work during the week. According to the sheriff's office, these so-called "weekenders" eat up more space and man-hours than necessary.
Sheriff Garcia, if you really want to make a dent in the inmate population in downtown Houston, look into issuing citations for minor Class B misdemeanor offenses such as possession of marijuana and personal bonds for non-violent, first-time arrestees.
The program seems aimed at inmates who serve weekends in the jail and work during the week. According to the sheriff's office, these so-called "weekenders" eat up more space and man-hours than necessary.
" 'Weekenders,' as we refer to them, take up costly jail cells that we would otherwise want to save for accused offenders that are a true danger to the public." Adrian Garcia, Harris County SheriffThe idea is to reduce the severe overcrowding at the Harris County Jail which would serve to reduce the amount the county pays to other counties to house their inmates. Implementing the plan would require the cooperation of County and State District Court judges, as well.
Sheriff Garcia, if you really want to make a dent in the inmate population in downtown Houston, look into issuing citations for minor Class B misdemeanor offenses such as possession of marijuana and personal bonds for non-violent, first-time arrestees.
It's time we stop criminalizing school discipline
Texas Appleseed, a public interest organization whose mission is to promote social and economic justice for Texans, recently released a report detailing the criminalization of discipline in our public schools. The report, entitled Texas' School to Prison Pipeline:Ticketing, Arrest & Use of Force in Schools, takes a critical look at how Texas school districts have shifted disciplinary problems from the schools to the courthouses.
Described by Texas’ premier juvenile law scholar as “the shadow juvenile justice system,” municipal and justice courts are now the primary venue for many types of cases that historically were adjudicated as civil matters by juvenile courts. However, unlike juvenile courts, municipal and justice courts are courts of criminal jurisdiction. As harsh as it may seem, children convicted in these courts are aptly labeled “common criminals.” -- Passing the Paddle: Nondisclosure of Children's Criminal Cases
Estimates are that there are some 275,000 non-traffic citations issued to juveniles in Texas every year. Since many Justice of the Peace Courts don't report all of their juvenile matters, that estimate understates the number of teens ticketed by police. According to Texas Appleseed, the vast majority of those citations are issued for school disciplinary problems: disrupting class, disorderly conduct, fighting, truancy and misbehaving on the school bus.
In Texas, students as young as six have been ticketed at school in the past five years, and it is not uncommon for elementary-school students to be ticketed by school-based law enforcement. School-based arrest of students is not as common, but does occur—and often without prior notice to parents or a lawyer being present during initial questioning of the student. -- Texas Appleseed report
It's a basic tenet of criminal law that one must have the intent to commit a bad act in order to be guilty. While there are some exceptions (notably, DWI), the Texas Penal Code lists a culpable mental state for each criminal offense. Those mental states run from criminally negligent to reckless to knowing to intentional.
Young children act up. It's part of the process of growing up. But young children rarely consider the consequences of their actions -- their minds aren't developed enough to do so. And you certainly can't compare the average six or seven year-old to the "reasonably prudent man" we studied about in law school.
According to Texas Appleseed, ticketing students for disciplinary matters has the following financial and legal consequences:
The most common misdemeanors for which students are ticketed in Texas public schools are non-violent Disruption of Class or Transportation, Disorderly Conduct, and curfew violations (leaving campus without permission)—however, unlike juvenile court, children convicted or entering “guilty or no contest” pleas in municipal and justice courts have criminal records.
Legislation (SB 1056) adopted by the 81st Texas Legislature in 2009 mandated criminal courts (including municipal and justice courts) immediately issue a nondisclosure order upon the conviction of a child for a misdemeanor offense punishable by fine only, however due to the large volume of these cases and the burden on courts to clear Class C tickets through the Texas Department of Public Safety, the “non-disclosure law” is not working—and Class C misdemeanors are staying on a youth’s “criminal record” accessible by future employers and others.
Students who fail to pay a court-imposed fine or complete court-imposed community service in the wake of a Class C ticket issued at school can be arrested at age 17—and incidents of this happening in Hidalgo County are currently being challenged in court.
The courts providing information for this study reported assessing fines and court costs for Class C tickets ranging from less than $60 to more than $500—and many students receive multiple tickets in a single school year.
Minority, particularly African-American, students and special education students find themselves disproportionately ticketed compared to their rates of enrollment.
Texas Appleseed recommends that Chapter 37 of the Texas Education Code be amended to remove Disruption of Class and Disruption of Transportation as criminal offenses. They also recommend that Chapter 37 be amended to prohibit the ticketing of students under the age of 14. The groups also recommends that truancy no longer be a criminal offense.
We should be doing everything we can to keep young people out of the criminal (in)justice system. Parents need to be informed of the school district's policies regarding the ticketing of students for disciplinary issues. Parents should be warned of the consequences involved in ticketing students.
Maybe it's time we stopped focusing so much on teaching to a standardized test so that schools can get back into the discipline game instead of farming it out to the police.
Tuesday, January 11, 2011
Head of new PD's office speaks to press
The new public defender's office in Harris County will debut in February. The office will handle criminal cases for indigent defendants with mental health issues and appeals. Alex Bunin, who was appointed by Commissioner's Court to head up the office, has started up PD's offices in Alabama, Vermont and New York.
Some of his answers during a recent interview with the Houston Chronicle lead to more questions.
When asked what the office's budget will be, Mr. Bunin replied:
When asked if the office would save the taxpayers' money, Mr. Bunin said he didn't know.
If a person is arrested on a nonviolent misdemeanor offense and has a clean record, that person should be eligible for a personal bond. Minor possession cases should be handled through the issuance of citations with a promise to appear.
Often the debate on indigent defense is framed with taxpayers and indigent defendants on opposite sides of the ball. Rarely does anyone question that basic assumption that indigent defendants are "them" while taxpayers are considered to be "us."
When asked what he wanted the public to know about the new PD's office, Mr. Bunin did his part to reframe the debate.
Some of his answers during a recent interview with the Houston Chronicle lead to more questions.
When asked what the office's budget will be, Mr. Bunin replied:
The grant is for $4,150,545. That will be our entire budget for the first year. The second year, the grant pays 80 percent. For the next two years, the grant will pay 20 percent and the county will pay 80 percent. After four years, the county will be paying the whole tab.Part of the impetus behind the creation of the office was to save the county money. What's going to happen when the county has to pick up more of the tab for the office? Will we see public defenders overworked with too many open case files to handle adequately? Will we see pressure from Commissioner's Court to reduce the cost of running the office?
When asked if the office would save the taxpayers' money, Mr. Bunin said he didn't know.
If you're asking me to give you a dollar figure that says it's going to save this amount of money, I can't tell you that. But we think we're going to do it in a more efficient manner and provide better representation.
You can't just compare what you're paying assigned lawyers to what you're paying us. There are so many interrelations in the system that are outside of what the courts pay lawyers. There's the jail cost, there's the social services, there are a lot of things that are affected.Unlike other counties in which I work, in Harris County offers are routinely made in cases in which defendants are unable to post bond. So the Harris County Jail isn't overcrowded because of the manner in which appointments are doled out. Now, might there be some attorneys who would rather get paid for another reset or two rather than recommend their client take an offer? I'm sure there are. But the real causes of overcrowding are the bond schedule and the way in which drug cases are handled in Harris County.
If a person is arrested on a nonviolent misdemeanor offense and has a clean record, that person should be eligible for a personal bond. Minor possession cases should be handled through the issuance of citations with a promise to appear.
Often the debate on indigent defense is framed with taxpayers and indigent defendants on opposite sides of the ball. Rarely does anyone question that basic assumption that indigent defendants are "them" while taxpayers are considered to be "us."
When asked what he wanted the public to know about the new PD's office, Mr. Bunin did his part to reframe the debate.
They will be skilled and compassionate lawyers representing people in Harris County.Amen to that.
Monday, January 10, 2011
Blawg Review #293
Dr. Samuel Alexander Mudd died 127 years ago today. For those of y'all not familiar with Dr. Mudd's story, he was imprisoned for conspiring to assassinate President Abraham Lincoln.On the evening of April 14, 1865, in the Ford Theater in Washington, D.C., President Lincoln and his wife settled down for an evening of amusement in their private box. In the middle of the play, John Wilkes Booth stepped into the box and fired a fatal shot in the back of the president's head. Mr. Booth leapt from the box to the stage below, breaking his leg in the process.
Early the next morning Mr. Booth and his cohort, David Herold, stopped at the Maryland home of Dr. Mudd. The good doctor, a supporter of slavery and the Confederacy, set the broken bones, made a pair of crutches and sent Mr. Booth on his merry way. After Mr. Booth was allegedly killed by Union forces in a barn, Dr. Mudd was charged with conspiring to assassinate President Lincoln.
On June 29, 1865, Dr. Mudd was convicted of conspiracy and dodged the hangman's noose by one vote. He was sentenced to life in prison. In February of 1869, Dr. Mudd was pardoned by President Andrew Johnson and returned home. On January 10, 1883, Dr. Mudd died of pneumonia. He was only 49.
Here's mud in your eye...
We start off with news from The Innocence Project that makes it even more likely the State of Texas murdered an innocent man when it executed Cameron Todd Willingham for the murder of his three children. After months of wrangling, the Texas Forensic Science Commission heard from arson expert Craig Beyler this past week. In his testimony, Mr. Beyler concluded that the cause of the fire was accidental.
Ohio criminal defense attorney Jeff Gamso reminds us that in life, and trial, there are many victims. And they aren't all who you might think.
"Sticks and stones may break my bones, but words will never hurt me." Well, unless you find yourself in Pakistan calling Muhammad a liar. A woman is on death row for doing that and a man is dead for urging the repeal of the blasphemy laws.
For those of you who think the system works just fine as it is, Grits for Breakfast brings us the tale of Texas' latest exoneration. Cornelius Dupree served 30 years for a crime he didn't commit. That's 30 years that neither he nor his family can get back. In the words of Dr. Martin Luther King, Jr., "justice delayed is justice denied."
Rick Horowitz asks you to take a minute and imagine how it would feel to watch your life pass by in prison when you're the innocent victim of a miscarriage of justice. How does that affect your concept of reasonable doubt?
Mirriam Seddiq wants you to pick up a pen and a piece of paper and note the milestones of your life. Then she wants you to imagine they never happened. Even that doesn't begin to sum up what Mr. Dupree lost.
The Dallas Observer has a few thoughts on why our (in)justice system would prefer to look forward instead of in the rear view mirror. Here's a hint, it might be gaining on you.
Jamison Koehler relates the tale of Jabbar Collins: Jailhouse Lawyer who, through his dogged determination (and lots of time on his hands) managed to get his murder conviction overturned.
D. Todd Smith's Texas Appellate Law Blog looks at the triumph of legal sufficiency over factual sufficiency in the Texas Court of Criminal Appeals. Legal sufficiency was to be determined by looking at the evidence in the light most favorable to the verdict, while to determine if the evidence was factually sufficient to support the conviction you looked at it in a neutral light. With the increasing number of exonerations, did the court make the wrong decision?
Brian Tannebaum gives us his two cents on how defense attorneys deal with prosecutors who run afoul of the law. Our Florida colleague points out that the reaction often depends upon the maturity level and character of the prosecutor in question.
And then there's the attorney who hits the wrong button and files a document that should never have been seen. Mark Bennett takes a look at how an attorney made his client a marked man.
The question of whether Samuel Mudd was a part of the conspiracy to assassinate President Lincoln still rages on. According to Dr. Mudd, the only time he ever met with John Wilkes Booth was in Washington, D.C. in November 1864. When first questioned about the mysterious patient who showed up at his house, Dr. Mudd denied knowing the man's identity.
According to testimony, however, Dr. Mudd knew the conspirators and suggested a getaway route for Booth and his partner, David Herold.
Stewart Baker over at the Volokh Conspiracy asks that age-old question: when is a fence not a fence? Maybe it's when it's not in your backyard.
Now los federales have taken to issuing subpoenas to people involved with WikiLeaks to determine who is to blame for the egg dripping off their faces. The Trial Warrior, Antonin Pribetic, pays homage to Martin Luther while assailing the tactics and motives of the DOJ. As he points out, it's not a long trek to tyranny.
Where did our old friend, the 4th Amendment, go? Norm Pattis writes about yet another court chipping away at one of our most essential protections all the while claiming allowing the police to search your cell phone is a logical extension of the Terry stop.
Scott Greenfield over at Simple Justice also finds himself appalled at the California Supreme Court's ruling that the police don't need a warrant to search an arrestee's cell phone. He points out that we've been down this road, or should I say slippery slope, before. Where are those "original intent-ers" when you need them? That's right, conveniently forgetting their convictions when law and order calls for it.
And while we're on the subject, Eric Turkewitz wants to know what would possess a police officer to issue a citation for jaywalking to a girl who suffered brain damage when she was hit?
And of course what would a Blawg Review from the Lone Star State be without an update on the increasingly bizarre case of R. Allen Stanford? Our friends at Tex Parte Blog come bearing news. Those billions he stole are paying off with the best indigent defense money can buy.
Contrary to popular belief, the phrase "Your name is mud" does not find its origins in the saga of Dr. Samuel Mudd. The phrase actually dates back to 1823. In his book, Slang: A Dictionary of the Turf, etc., John Badcock writes that "mud" refers to a stupid twaddling fellow. But, as an old history professor of mine at the University of Texas pointed out, mud spelled backwards is dum.
Ever wonder how judges in family court maintain their sanity (a huge assumption, I know)? Read how a Canadian judge dealt with dueling spouses. There are times to let it all hang out -- and other times not to.
And while we're talking about those crazy Canucks (I can say that because I'm married to one), a former internet porn star turned judge has found herself in a sticky little mess.
Meanwhile, the boys at Patently-O get to the bottom of whether everything that can be invented has been invented.
Having trouble finding that perfect balance between work and life -- or coffee time and down time? No problem, Amy Derby has the cure for your woes.
But if you're involved in social media litigation, or just hanging out at your office the local Starsucks, you might just need that social media/SEO expert to enlighten the jurors as to what in the hell's going on. Or not.
What's the best way to exert control: formally by enacting laws or informally by applying peer pressure? Karen Sternheimer has some questions as to whether legislating morality works.
British Columbia injury lawyer Erik Magraken has an interesting way of looking at settling a tort claim. When you settle that claim, you're not being compensated for your injuries -- you're actually selling your right to sue.
Ian Ayres over at Freakonomics thinks the best incentive is the incentive we create in order to force us to accomplish something.
"I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek." -- Martin Luther King, Jr.
"There are many causes I would die for. There is not a single cause I would kill for." -- Mohandas Gandhi
And before I hand Blawg Review off to Gideon and his excellent blog, A Public Defender, I would be remiss if I didn't mention the aftermath of Saturday's tragic shootings in Tucson. The Wall Street Journal's Law Blog published this obituary for US District Judge John Roll who was one of the victims of the shooting.
Blawg Review has information about future hosts, and instructions on how to get your blawg posts reviewed in upcoming issues.
Sunday, January 9, 2011
Reflections on Tucson
I don't really know where to start today. I'm still trying to comprehend exactly what went down in Tucson yesterday and why a federal judge, a staffer and a nine year-old are dead.
I would say that once upon a time we had civil discourse in politics in this country -- but that's not entirely accurate. Candidates of all stripes have made outrageous accusations against their opponents from the early days of the Republic.
But the metaphor has changed. Maybe those in power, and those seeking power, have been brainwashed by a state of seemingly permanent war on something or other. Maybe we've been sucked into the marketing of football as war. With our short attention spans news outlets, commentators and blogs marginalize the vast majority of Americans who are in the middle in favor of those on the extreme.
Sarah Palin created a target map for the 2010 elections where she placed gun crosshairs over Congressional districts the right targeted. One of those crosshairs was on Ms. Giffords' district. According to this article from the San Francisco Sentinel, Ms. Giffords' opponent, Jesse Kelly, this past November invited supporters who wanted to remove Ms. Giffords from office to "get on target for victory in November" and go shoot M-16's with him.
Did political vitriol have anything to do with the massacre in Tucson? I don't know. There are reports that the alleged shooter, Jared Lee Loughner, had posted messages and videos about the nation's currency. Was he obsessed with the gold standard or the idea of hard currency or was it just the manifestation of something gone awry in his brain?
It's certainly possible that the shootings had nothing at all to do with politics and everything to do with a young man suffering severe delusions.
Whatever the case, our worship of the culture of war has to stop. There is nothing glorious about war. Young men (and women) are sent to another part of the world to serve as fodder for the politicians back in Washington sipping Chardonnay and hobnobbing with the wealthy. Young people get shot. Young people die. Families are destroyed and lives are left in ruin.
There is, after all, little difference between the Democratic and Republican parties (which may explain the role of extremists in modern American politics). Neither party will challenge the underlying assumptions that guide our economic and foreign policies. The parties' positions on issues change depending on whose in power.
On September 17, 1787 the US Constitution was ratified and we traded the bullet for the ballot box. It would appear that some want to rescind that trade.
In the meantime, six people are dead and at least one other lies in critical condition in an Arizona hospital.
I would say that once upon a time we had civil discourse in politics in this country -- but that's not entirely accurate. Candidates of all stripes have made outrageous accusations against their opponents from the early days of the Republic.
But the metaphor has changed. Maybe those in power, and those seeking power, have been brainwashed by a state of seemingly permanent war on something or other. Maybe we've been sucked into the marketing of football as war. With our short attention spans news outlets, commentators and blogs marginalize the vast majority of Americans who are in the middle in favor of those on the extreme.
Sarah Palin created a target map for the 2010 elections where she placed gun crosshairs over Congressional districts the right targeted. One of those crosshairs was on Ms. Giffords' district. According to this article from the San Francisco Sentinel, Ms. Giffords' opponent, Jesse Kelly, this past November invited supporters who wanted to remove Ms. Giffords from office to "get on target for victory in November" and go shoot M-16's with him.
Did political vitriol have anything to do with the massacre in Tucson? I don't know. There are reports that the alleged shooter, Jared Lee Loughner, had posted messages and videos about the nation's currency. Was he obsessed with the gold standard or the idea of hard currency or was it just the manifestation of something gone awry in his brain?
It's certainly possible that the shootings had nothing at all to do with politics and everything to do with a young man suffering severe delusions.
Whatever the case, our worship of the culture of war has to stop. There is nothing glorious about war. Young men (and women) are sent to another part of the world to serve as fodder for the politicians back in Washington sipping Chardonnay and hobnobbing with the wealthy. Young people get shot. Young people die. Families are destroyed and lives are left in ruin.
There is, after all, little difference between the Democratic and Republican parties (which may explain the role of extremists in modern American politics). Neither party will challenge the underlying assumptions that guide our economic and foreign policies. The parties' positions on issues change depending on whose in power.
On September 17, 1787 the US Constitution was ratified and we traded the bullet for the ballot box. It would appear that some want to rescind that trade.
In the meantime, six people are dead and at least one other lies in critical condition in an Arizona hospital.
Friday, January 7, 2011
The scarlet D
Texas State Representative Pete Gallego (D-Alpine) wins the Hester Prynne Award for his proposal to require a special symbol on the driver's license of anyone convicted of driving while intoxicated. And what, pray tell, is the purpose of this, Pete?
Anyone convicted of DWI has already been through a living hell with being arrested, going to jail, missing work and shelling out money to attorneys and the court. Everyone is capable of making a mistake. Let's stop trying to treat these folks like pariahs.
It's easy enough for an officer to run a motorist's driver's license through an in-car computer to check for outstanding warrants and prior convictions. The only thing a special marking will do is guarantee that the officer will be looking for any excuse to hit the motorist with another drunk driving charge.
Maybe we'd be better off if we expended time and money in making treatment programs affordable for folks who have addiction problems. Maybe if we treated DWI's for first-time offenders as a public health issue instead of a criminal matter folks who need help might get it.
Maybe if our representatives were serious about making change instead of being more interested in getting headlines...
Anyone convicted of DWI has already been through a living hell with being arrested, going to jail, missing work and shelling out money to attorneys and the court. Everyone is capable of making a mistake. Let's stop trying to treat these folks like pariahs.
It's easy enough for an officer to run a motorist's driver's license through an in-car computer to check for outstanding warrants and prior convictions. The only thing a special marking will do is guarantee that the officer will be looking for any excuse to hit the motorist with another drunk driving charge.
Maybe we'd be better off if we expended time and money in making treatment programs affordable for folks who have addiction problems. Maybe if we treated DWI's for first-time offenders as a public health issue instead of a criminal matter folks who need help might get it.
Maybe if our representatives were serious about making change instead of being more interested in getting headlines...
Reviewing the nation's blueprint
This morning members of the House of Representatives read the Constitution. Of course, they couldn't agree on how the document should be read.
Maybe it means someone will think twice before creating yet another federal crime and duplicates what's on the books in the states.
If these guys and gals can't even agree on how to read the blueprint of our democracy, how can we expect them to get anything done? Of course that might not be a bad thing, if you know what I mean.
Do we read the entire document, including those provisions that have been superseded by amendment?
Do we read that messy little section that talked about some folks only being worth 60% of what other folks are worth?
Should we just skip over that whole Prohibition thingy?Under the new regime, all bills must cite the Constitutional provision that gives Congress authority to take action. Does that mean members might have to read the provision of the 4th Amendment that bans unreasonable search and seizure? Does it mean they might have to review the 5th Amendment to realize that criminal defendants have a right to remain silent (whether or not they announce their intention to remain silent)? Will they look at the 6th Amendment and remember that criminal defendants have the right to have an attorney and to confront their accusers?
Maybe it means someone will think twice before creating yet another federal crime and duplicates what's on the books in the states.
If these guys and gals can't even agree on how to read the blueprint of our democracy, how can we expect them to get anything done? Of course that might not be a bad thing, if you know what I mean.
Thursday, January 6, 2011
Stop, thief!
I was a victim of crime. True story.
Yesterday I arrived downtown at a few minutes after 9 a.m. for two court appearances in the Criminal (In)justice Center. I parked on Texas Avenue just east of Austin Street. I walked over to the (space age) parking meter and took out my debit card. I punched in $2.00 for two hours of parking. The machine said it was printing my receipt.
I waited.
And I waited.
No receipt.
Then the machine said "thank you" and went back to the input screen.
I walked back to my car and wrote a note on a piece of paper that I had paid $2 at 9:10 a.m. and that the machine didn't spit out a receipt.
Fast forward to 11:20 a.m.
I walk back to my car and see a parking ticket on the windshield (luckily no boot on the wheels). I open the envelope to see what time the ticket was issued. If it was after 11:10 a.m. I would be SOL.
9:49 a.m.
That's right -- less than 40 minutes after the City of Houston stole my money, a mindless functionary of the city wrote a citation for illegal parking.
Now I have to go back to the municipal courthouse to request a hearing. Luckily I will have a statement from my bank showing that $2.00 was charged to my account that morning. The whole episode is infuriating, however, because it's not a rarity for a machine not to print a receipt. I can't count the number of times I've had to leave a note on my dash that I paid for parking but the machine didn't print out a receipt.
If the city's going to force us to pay to park on the streets, the city needs to make sure that its machines are working properly.
Yesterday I arrived downtown at a few minutes after 9 a.m. for two court appearances in the Criminal (In)justice Center. I parked on Texas Avenue just east of Austin Street. I walked over to the (space age) parking meter and took out my debit card. I punched in $2.00 for two hours of parking. The machine said it was printing my receipt.
I waited.
And I waited.
No receipt.
Then the machine said "thank you" and went back to the input screen.
I walked back to my car and wrote a note on a piece of paper that I had paid $2 at 9:10 a.m. and that the machine didn't spit out a receipt.
Fast forward to 11:20 a.m.
I walk back to my car and see a parking ticket on the windshield (luckily no boot on the wheels). I open the envelope to see what time the ticket was issued. If it was after 11:10 a.m. I would be SOL.
9:49 a.m.
That's right -- less than 40 minutes after the City of Houston stole my money, a mindless functionary of the city wrote a citation for illegal parking.
Now I have to go back to the municipal courthouse to request a hearing. Luckily I will have a statement from my bank showing that $2.00 was charged to my account that morning. The whole episode is infuriating, however, because it's not a rarity for a machine not to print a receipt. I can't count the number of times I've had to leave a note on my dash that I paid for parking but the machine didn't print out a receipt.
If the city's going to force us to pay to park on the streets, the city needs to make sure that its machines are working properly.
Wednesday, January 5, 2011
Legislature takes critical look at citing students for misbehavior
While surfing on Google Reader this morning at the municipal courthouse, I came across a post over at Grits for Breakfast about the goings-on with the State Senate Criminal Justice Committee. The post mentioned discussions regarding the Driver Responsibility Program, deferred for DWI's, reducing the number of offenses that can lead to driver's license suspensions and a new look at using the criminal (in)justice system to discipline students who disrupt class.
I was particularly interested in this last item because I have a friend whose child has been dragged into the justice of the peace courts for allegedly disrupting class. She and I discussed the absurdity of charging children with a criminal offense because they interrupted class. It's bad enough that the students are missing class sitting in a courtroom; but the absurdity continues when the courts hold the parents liable for the fines and court costs owed by their children. My friend was told that if she didn't pay the fines and court costs for her son's case then her driver's license would be suspended for nonpayment of a court-ordered fine.
These are the recommendations of the committee regarding secondary school disciplinary laws:
During hearings before State Senator John Whitmire (D-Houston) last April, Mr. Jeff Miller of Advocacy Incorporated testified about the disproportionate numbers of special needs students who get dragged into the criminal (in)justice system.
Ms. Elysha Aseltine, who wrote a dissertation on the ticketing of students also testified before the committee regarding the rampant increase in tickets issued for misbehavior.
The president of the Texas Association of School District Police, Mr. Jeff Ward, denied that school districts encourage officers to issue citations as a way of raising funds. He did point out, however, that while a student could be cited for disrupting class, he could not be cited for carrying a knife to school.
In short, the committee realizes that what we're doing now isn't working and that we need to look at some fresh ideas when it comes to handing campus disciplinary issues. Removing those matters from the criminal (in)justice system is a healthy first step.
I was particularly interested in this last item because I have a friend whose child has been dragged into the justice of the peace courts for allegedly disrupting class. She and I discussed the absurdity of charging children with a criminal offense because they interrupted class. It's bad enough that the students are missing class sitting in a courtroom; but the absurdity continues when the courts hold the parents liable for the fines and court costs owed by their children. My friend was told that if she didn't pay the fines and court costs for her son's case then her driver's license would be suspended for nonpayment of a court-ordered fine.
These are the recommendations of the committee regarding secondary school disciplinary laws:
1. Amend Chapter 37 of the Education code by narrowing the definition for "Disruptive Activities", "Disruption of Classes", "Serious and Persistent Misbehavior" to eliminate non-criminal acts.
2. Amend Chapter 37 of the Education Code by changing the dangerous or disruptive violation to dangerous and disruptive, In order to insure students are not being removed for simple disruptions to class.
3. Require TEA to evaluate and modify education standards at DAEPs and JJAEPs.
4. Require TEA to notify school districts of disproportionate referrals.
5. Require TEA to develop a tracking system for the funds generated by citations.
6. Require an evaluation of district with continued disproportionate referrals.
7. Require school district to implement some form of evidence based programs that are proven to reduce truancy, crime, and drug offenses.
8. Require more training for teachers and administrators in discipline in a educational setting, and early intervention options.
9. Exempt 18-21 year olds from the truancy laws.
10. Require the state auditor to evaluate the use of dropout funds by TEA.
During hearings before State Senator John Whitmire (D-Houston) last April, Mr. Jeff Miller of Advocacy Incorporated testified about the disproportionate numbers of special needs students who get dragged into the criminal (in)justice system.
Jeff Miller, policy specialist, Advocacy Incorporated, testified in agreement of the statements and recommendations made by TA with regard to students with disabilities. Miller stated that while ten percent of students receive special education, they represent twenty-one percent of the students expelled in Texas. He stated that this overrepresentation was the result of systemic problems with assessment done by school districts, programming and accountability for implementation of special education students' Individualized Education Plans and Behavioral Improvement Plans. He also stated DAEPs are especially lacking in these areas.
Miller also testified to the topic of citation. He explained that often students with disabilities are disciplined and also cited; meaning they are directly involved with the justice system. Instead of criminalizing these students and removing them from schools for issues that are directly related to their disability, steps should be taken to develop plans to address the behavioral issues when they are not violent or criminal. The first step in accomplishing this is supplying teachers with needed help, and identifying students with special needs.
Ms. Elysha Aseltine, who wrote a dissertation on the ticketing of students also testified before the committee regarding the rampant increase in tickets issued for misbehavior.
Elyshia Aseltine, representing herself, testified regarding her dissertation on school ticketing. She testified that in 1994 only 1.5 percent of tickets were issued by school police officers. In 2007 40 percent of the ticket for juveniles were issues by school police officers. She stated that the majority of tickets were for curfew violations, typically for leaving campus during lunch. The next most frequent ticket is for disorderly conduct, and next abuse of language. Many citation are also given for drug paraphernalia and disruptive behavior. She also provided statistics pertaining to the number of juveniles who experienced increased penalties for citation as a result of school disciplinary. Approximately 14,200 ticket were issued over a fourteen year period issues; 2,119 resulted in a warrant being issued or the juvenile serving jail time.
The president of the Texas Association of School District Police, Mr. Jeff Ward, denied that school districts encourage officers to issue citations as a way of raising funds. He did point out, however, that while a student could be cited for disrupting class, he could not be cited for carrying a knife to school.
Jeff Ward, president, Texas Association of School District Police, testified that revenue for citations was not a factor in issuing citations. He stated that only five dollars for every citation is returned to the district from the county in adjudicated cases. He stated that school police officers report to the police department or the superintendent of a school district; and that school administrators can not require that police issue a ticket. They can be the complaining witness if involved in the incident. He also stated there has been a reduction in the issuance of tickets. He also states that as a result of a change in law, possession of a knife on campuses is no longer a criminal offense therefore is no longer a citable [sic]offense. He also stated that officers are trained in crisis intervention and many have mental health training.The report also stated that the conflict resolution programs, such as peer mediation and school-based teen courts have proven to be effective alternatives to citing students.
In short, the committee realizes that what we're doing now isn't working and that we need to look at some fresh ideas when it comes to handing campus disciplinary issues. Removing those matters from the criminal (in)justice system is a healthy first step.
Tuesday, January 4, 2011
The rational defendant
Most of us are familiar with the Prisoner's Dilemma - a basic exercise in game theory. Two people are arrested for the same crime. There is no physical evidence and no other witnesses to the crime. The two are then placed in separate cells.
Both prisoners are given a choice. If they keep their mouths shut they can't be convicted as there would be no evidence. If one prisoner confesses he will go free while the other prisoner will receive the maximum sentence. If they both confess there will be enough evidence to convict both but the prosecutor will reduce the sentences.
Where T>R>P>B
R represents the reward both prisoners receive if they both remain silent. P is the punishment both prisoners receive if they both confess. T is the temptation to remain silent, while B is the benefit of cooperating.
While it is in both prisoner's self-interest to remain silent, they each run the risk that the other prisoner will confess. The choice then becomes one of maximizing one's self-interest versus minimizing the consequences. The rational choice for each prisoner is to cooperate. Economists use the term "satisficing" when a rational actor chooses the minimize his consequences rather than maximize his self-interest.
In the blog, Freakonomics, Stephen Dubner refers to a rather crude version of the Prisoner's Dilemma that one reader's children play.
In both "games," the players must not only determine what is in their best interest but also what the other player is likely to do. In the first example, should one prisoner remain silent while the other talks, he will receive the maximum sentence but if he confesses, the worst he will receive is a shortened sentence while he could walk out if the other prisoner keeps silent.
In the second example it is interesting to note that one child will allow himself to be punished longer just so that his sibling gets the same punishment. It would appear that the fact his sibling is being punished is enough of a benefit to sit in silence.
The same calculus is used in the courtroom on a daily basis. For instance, a client is charged with a 2nd DWI. To complicate matters, there is a very high blood test result, but there is also a question of whether the client was actually driving the car in question. While there is circumstantial evidence that he was, there is no direct evidence.
As the defense attorney is unable to convince the prosecutor to dismiss the case, and as the prosecutor is unable to convince the defense attorney to plead his client, the matter is set for trial. On the morning of trial the prosecutor offers to dismiss the DWI in exchange for a plea to obstruction of a highway. What is the rational decision?
Where D > R > C > P
R represents the reward the client receives if he is acquitted at trial. P represents the punishment the client receives if he is convicted of DWI. C represents the conviction for the reduced charge and D represents the dismissal of the DWI.
If the client accepts the deal he has a conviction on his record, but not for DWI. If the client rejects the deal the case goes to trial where the client could be acquitted or convicted. The best possible outcome for the client is to reject the state's offer, go to trial and get a not guilty verdict. But, if he chooses that path he could also get hit with a second DWI conviction (not a good thing since another DWI arrest would result in a felony charge).
The question comes down to how a rational person would evaluate the trade-off of a conviction for the reduced charge versus the weakness of the state's proof of operating. What is the risk of going to trial and being convicted of DWI? Is the loss associated with that outcome greater than the loss associated with pleading to the reduced charge?
In order to answer that question, you must assign a value to the benefit of acquittal and a negative value for the punishment of a conviction on the DWI. We would then have to assign a value to the dismissal of the DWI as well as to the conviction of a reduced offense. After assigning values we must then assign a percentage to represent the chances of an acquittal versus a conviction.
If we were to assign a value of 10 for the benefit of an acquittal, a -10 for the cost of a conviction, a 5 for the benefit of a dismissal and a -5 for the cost of a conviction for the reduced charge, and a 50% chance of conviction at trial, we come up with the following:
As can be seen, if the client accepts the offer, the benefit of dismissal and cost of conviction cancel each other out while there is a greater swing in values if he declines the offer. The rational client, therefore, would be best served by accepting the prosecutor's offer. Of course as the chance of acquittal rises, it will, at some point, tip the scale in favor of rejecting the offer and trying the case.
Both prisoners are given a choice. If they keep their mouths shut they can't be convicted as there would be no evidence. If one prisoner confesses he will go free while the other prisoner will receive the maximum sentence. If they both confess there will be enough evidence to convict both but the prosecutor will reduce the sentences.
| | Prisoner A | Prisoner B |
| Prisoner A | R, R | B, T |
| Prisoner B | T, B | P, P |
Where T>R>P>B
R represents the reward both prisoners receive if they both remain silent. P is the punishment both prisoners receive if they both confess. T is the temptation to remain silent, while B is the benefit of cooperating.
While it is in both prisoner's self-interest to remain silent, they each run the risk that the other prisoner will confess. The choice then becomes one of maximizing one's self-interest versus minimizing the consequences. The rational choice for each prisoner is to cooperate. Economists use the term "satisficing" when a rational actor chooses the minimize his consequences rather than maximize his self-interest.
In the blog, Freakonomics, Stephen Dubner refers to a rather crude version of the Prisoner's Dilemma that one reader's children play.
My wife came up with a punishment method for my kids that I thought that you (and perhaps your blog readers) would find interesting.
When the kids get to tussling and or screaming at each other in such a way that she is finding aggravating, she will send them to their respective rooms with the stipulation that they can come out when they both agree to apologize to each other.
Game theory, I suppose, would argue that they should immediately apologize to one another to minimize the period of detention. What seems to happen, though is that one will think that the other deserves some extended detention and will give up freedom himself in order to see that the other gets it.
In both "games," the players must not only determine what is in their best interest but also what the other player is likely to do. In the first example, should one prisoner remain silent while the other talks, he will receive the maximum sentence but if he confesses, the worst he will receive is a shortened sentence while he could walk out if the other prisoner keeps silent.
In the second example it is interesting to note that one child will allow himself to be punished longer just so that his sibling gets the same punishment. It would appear that the fact his sibling is being punished is enough of a benefit to sit in silence.
The same calculus is used in the courtroom on a daily basis. For instance, a client is charged with a 2nd DWI. To complicate matters, there is a very high blood test result, but there is also a question of whether the client was actually driving the car in question. While there is circumstantial evidence that he was, there is no direct evidence.
As the defense attorney is unable to convince the prosecutor to dismiss the case, and as the prosecutor is unable to convince the defense attorney to plead his client, the matter is set for trial. On the morning of trial the prosecutor offers to dismiss the DWI in exchange for a plea to obstruction of a highway. What is the rational decision?
| | Accept | Reject |
| Client | D, C | R, R |
| Prosecutor | C, D | P, P |
Where D > R > C > P
R represents the reward the client receives if he is acquitted at trial. P represents the punishment the client receives if he is convicted of DWI. C represents the conviction for the reduced charge and D represents the dismissal of the DWI.
If the client accepts the deal he has a conviction on his record, but not for DWI. If the client rejects the deal the case goes to trial where the client could be acquitted or convicted. The best possible outcome for the client is to reject the state's offer, go to trial and get a not guilty verdict. But, if he chooses that path he could also get hit with a second DWI conviction (not a good thing since another DWI arrest would result in a felony charge).
The question comes down to how a rational person would evaluate the trade-off of a conviction for the reduced charge versus the weakness of the state's proof of operating. What is the risk of going to trial and being convicted of DWI? Is the loss associated with that outcome greater than the loss associated with pleading to the reduced charge?
In order to answer that question, you must assign a value to the benefit of acquittal and a negative value for the punishment of a conviction on the DWI. We would then have to assign a value to the dismissal of the DWI as well as to the conviction of a reduced offense. After assigning values we must then assign a percentage to represent the chances of an acquittal versus a conviction.
If we were to assign a value of 10 for the benefit of an acquittal, a -10 for the cost of a conviction, a 5 for the benefit of a dismissal and a -5 for the cost of a conviction for the reduced charge, and a 50% chance of conviction at trial, we come up with the following:
| | Accept | Reject |
| Client | (5 - 5) | .5 (10) |
| Prosecutor | (-5 + 5) | .5 (-10) |
As can be seen, if the client accepts the offer, the benefit of dismissal and cost of conviction cancel each other out while there is a greater swing in values if he declines the offer. The rational client, therefore, would be best served by accepting the prosecutor's offer. Of course as the chance of acquittal rises, it will, at some point, tip the scale in favor of rejecting the offer and trying the case.
Monday, January 3, 2011
Word games
There is one other little problem with HB 189 that I neglected to address in my last post on the topic. In Texas, two prior DWI convictions can be used to enhance a DWI from a misdemeanor to a felony. Under HB 189, a deferred on a DWI case would be considered a conviction for enhancement purposes.
That would be fine if we were only talking about enhancing the punishment, but we're talking about enhancing the offence from a misdemeanor to a felony -- and that's a much bigger deal. Take a conviction on a first DWI and you're looking at a maximum of 180 days in the county jail. Take a second conviction and the stakes are upped to one year. But, go down a third time and you could be looking at up to 10 years in the state penitentiary (with little chance of making parole).
It's almost as if the bill proposes that we convict a motorist of driving while intoxicated but call it something other than a conviction. Just remember that a conviction by any other name is just as bad.
That would be fine if we were only talking about enhancing the punishment, but we're talking about enhancing the offence from a misdemeanor to a felony -- and that's a much bigger deal. Take a conviction on a first DWI and you're looking at a maximum of 180 days in the county jail. Take a second conviction and the stakes are upped to one year. But, go down a third time and you could be looking at up to 10 years in the state penitentiary (with little chance of making parole).
It's almost as if the bill proposes that we convict a motorist of driving while intoxicated but call it something other than a conviction. Just remember that a conviction by any other name is just as bad.
The irony of it all
Closing out 2010, my colleague, Murray Newman, wrote about what he called the double standard that defense attorneys have toward prosecutors or police charged with criminal acts.
Now I don't know anything more than the cursory facts in the case so I'm not about to speculate on what did or didn't happen that night or what might or might not happen with Mr. Blizzard's case. I'm much more interested in Mr. Newman's thesis.
I've never worked as a prosecutor. Taking away a person's liberty has never been part of my job description. I know a number of prosecutors in Harris, Galveston and Montgomery counties. I don't necessarily believe that they wake up every morning gnashing their teeth in anticipation of sending people to jail or putting them on paper. Well, at least not all of them.
Based on their position, prosecutors have an ethical duty to see that justice is done. That duty does, at times, come into contradiction with the goals of the elected district attorney. No one is elected district attorney on a platform of seeing that justice is done and that the rights of the accused are protected; the citizenry elects the person who claims to be toughest on crime.
When former Harris County DA Chuck Rosenthal got caught deleting e-mails subject to a subpoena (among other sins) he said the medications he was taking had impaired his judgment. He never accepted responsibility for anything that happened. And that was that. End of the story.
Our clients have lapses in judgment. Our clients choose the wrong course of action in the heat of the moment. Our clients do stupid things.
But our clients go to jail when they break the law while prosecutors shake their heads and say they need to accept responsibility for their actions.
Mr. Newman writes further that:
As Mark Bennett points out, Mr. Blizzard found himself in front of State District Judge John Ellisor arguing for multiple life sentences for a man convicted of three counts of intoxication manslaughter -- his first DWI. Mr. Blizzard implored the judge to send a message to the community. I wonder what message he thinks ought to be sent now.
That's not a double standard, Mr. Newman.
Lester Blizzard is innocent unless proven guilty -- even though he worked for an office where the core belief was a defendant is guilty unless proven innocent. Even Alanis Morisette could understand the irony.
But for some reason, some of my brethren in the Defense Bar regard prosecutors and police officers as power-mad authoritarians who do their jobs solely for the reason of suppressing the rights of citizens who were simply minding their own business.
Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything. Die-Hard civil libertarians who will (rightfully) proclaim any citizen's Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.
It is a double standard beyond comprehension to me.He is writing of the news that Lester Blizzard, a prosecutor in the Galveston County District Attorney's Office was charged with driving while intoxicated on December 30.
Now I don't know anything more than the cursory facts in the case so I'm not about to speculate on what did or didn't happen that night or what might or might not happen with Mr. Blizzard's case. I'm much more interested in Mr. Newman's thesis.
I've never worked as a prosecutor. Taking away a person's liberty has never been part of my job description. I know a number of prosecutors in Harris, Galveston and Montgomery counties. I don't necessarily believe that they wake up every morning gnashing their teeth in anticipation of sending people to jail or putting them on paper. Well, at least not all of them.
Based on their position, prosecutors have an ethical duty to see that justice is done. That duty does, at times, come into contradiction with the goals of the elected district attorney. No one is elected district attorney on a platform of seeing that justice is done and that the rights of the accused are protected; the citizenry elects the person who claims to be toughest on crime.
When former Harris County DA Chuck Rosenthal got caught deleting e-mails subject to a subpoena (among other sins) he said the medications he was taking had impaired his judgment. He never accepted responsibility for anything that happened. And that was that. End of the story.
Our clients have lapses in judgment. Our clients choose the wrong course of action in the heat of the moment. Our clients do stupid things.
But our clients go to jail when they break the law while prosecutors shake their heads and say they need to accept responsibility for their actions.
Mr. Newman writes further that:
The irony of the situation is stunning, because as members of the Defense Bar celebrate and rebroadcast the arrest of a prosecutor or police officer, they are abandoning the most sacred principles of the Constitution.
First, they are presuming them guilty.
And second, they are relishing in the idea that they should be treated more harshly under the law because they are different.Thus there is a tasty little irony involved whenever a law enforcement officer or a prosecutor finds himself in need of a criminal defense attorney. I don't relish in their misfortune - but I'm not going to lose any sleep over it, either. Mr. Blizzard took an oath to execute the law. Whenever a public servant breaks the law, he is violating the trust of the populace. If you're going to hold yourself out to be holier-than-thou, then you have to accept the consequences of your actions.
As Mark Bennett points out, Mr. Blizzard found himself in front of State District Judge John Ellisor arguing for multiple life sentences for a man convicted of three counts of intoxication manslaughter -- his first DWI. Mr. Blizzard implored the judge to send a message to the community. I wonder what message he thinks ought to be sent now.
That's not a double standard, Mr. Newman.
Lester Blizzard is innocent unless proven guilty -- even though he worked for an office where the core belief was a defendant is guilty unless proven innocent. Even Alanis Morisette could understand the irony.
Saturday, January 1, 2011
Friday, December 31, 2010
More vampire propaganda
Here's a clip of a story NBC ran on the Today Show about states implementing no refusal weekends. The story focused on Houston and Montgomery County.
Once again we have the spectacle of the federal government pressuring states to implement no refusal policies to combat the scourge of drunk driving. We are treated to the sight of an officer swearing to a search warrant application before a judge -- they don't show us officers faxing "sworn" statements to judges sitting at the fax machine in their homes. The story doesn't mention that the judges whoblindly sign these warrants volunteer to do so -- where's the hue and cry for neutral and detached magistrates?
We also see a nurse on location at a police station preparing to draw blood from a motorist suspected of DWI. What about the requirement that the specimen be taken in a sterile location?
We're told that about half the motorists arrested for DWI in Texas refuse to blow into the state's breath test machine. We're told it's because they don't want to give the state any more evidence. We're told that's a bad thing.
Please explain to me how exercising a constitutional right is a bad thing? Young men and women are sent overseas for the alleged purpose of "fighting for democracy," yet our own government pressures local jurisdictions to trample on the constitutional rights of the citizenry.
Nowhere in this piece do we hear about the motorist wrongly arrested for drunk driving who had to undergo a forced blood draw and the stress of fighting a case. Nowhere do we hear about the times officers made mistakes and arrested someone who wasn't intoxicated.
Have a safe and happy New Year's celebration and remember that the best way to avoid being arrested for driving while intoxicated this weekend is not to drive if you've been drinking.
Once again we have the spectacle of the federal government pressuring states to implement no refusal policies to combat the scourge of drunk driving. We are treated to the sight of an officer swearing to a search warrant application before a judge -- they don't show us officers faxing "sworn" statements to judges sitting at the fax machine in their homes. The story doesn't mention that the judges who
We also see a nurse on location at a police station preparing to draw blood from a motorist suspected of DWI. What about the requirement that the specimen be taken in a sterile location?
We're told that about half the motorists arrested for DWI in Texas refuse to blow into the state's breath test machine. We're told it's because they don't want to give the state any more evidence. We're told that's a bad thing.
Please explain to me how exercising a constitutional right is a bad thing? Young men and women are sent overseas for the alleged purpose of "fighting for democracy," yet our own government pressures local jurisdictions to trample on the constitutional rights of the citizenry.
Nowhere in this piece do we hear about the motorist wrongly arrested for drunk driving who had to undergo a forced blood draw and the stress of fighting a case. Nowhere do we hear about the times officers made mistakes and arrested someone who wasn't intoxicated.
Have a safe and happy New Year's celebration and remember that the best way to avoid being arrested for driving while intoxicated this weekend is not to drive if you've been drinking.
Thursday, December 30, 2010
What I would change about HB 189
Today Grits for Breakfast asked what changes I would like to see in HB 189. Here goes.
I support the idea of making deferred adjudication an option for motorists charged with driving while intoxicated. While I don't think deferred is the greatest thing since sliced bread, in some cases it may be the best way to resolve a case.
My main problem with HB 189 is that a person who successfully completes his deferred probation is not eligible for an order of nondisclosure - leaving his arrest for DWI out there for all to see. The other offenses that are not eligible for nondisclosure are crimes of violence; for the most part those charged with drunk driving did nothing worse than commit a minor traffic offense such as speeding.
It's not like a nondisclosure order will prevent the police or the courts from discovering a prior DWI arrest -- law enforcement agencies have access to records under a nondisclosure order. Maybe the arresting officer won't know about the prior DWI arrest at the time of the traffic stop, but that information will be available to prosecutors.
The carrots in a deferred are the dismissal and nondisclosure. Since we're talking about a crime that's just one step removed from a traffic ticket, I think nondisclosure should be available.
I would also like to see the bill address the issue of how motorists who hold commercial driver's licenses will be affected. If we are allowing the deferred to count as a conviction for enhancement purposes, what effect will they have on a CDL? Will the DPS take advantage of that provision and impose surcharges for drivers who take deferred adjudication in a DWI case?
I would like to see language to the effect that there will be no civil penalties imposed by the DPS for any motorist who takes deferred probation in a DWI case. That means no surcharge, no license suspension and no disqualification from driving a commercial vehicle. If you want to disqualify CDL holders if they were arrested for DWI while driving a commercial vehicle, that's fine.
I also think the requirement that a motorist on deferred probation install an ignition interlock may be overkill. However, since judges routinely require an interlock as a condition of granting an occupational license, I can live with that. I do think, though, that it should be up to the judge whether the device should be required. One size fits all solutions from Austin rarely work as planned.
In short, while I am opposed to HB 189 as written, I do think it's a step in the right direction.
I support the idea of making deferred adjudication an option for motorists charged with driving while intoxicated. While I don't think deferred is the greatest thing since sliced bread, in some cases it may be the best way to resolve a case.
My main problem with HB 189 is that a person who successfully completes his deferred probation is not eligible for an order of nondisclosure - leaving his arrest for DWI out there for all to see. The other offenses that are not eligible for nondisclosure are crimes of violence; for the most part those charged with drunk driving did nothing worse than commit a minor traffic offense such as speeding.
It's not like a nondisclosure order will prevent the police or the courts from discovering a prior DWI arrest -- law enforcement agencies have access to records under a nondisclosure order. Maybe the arresting officer won't know about the prior DWI arrest at the time of the traffic stop, but that information will be available to prosecutors.
The carrots in a deferred are the dismissal and nondisclosure. Since we're talking about a crime that's just one step removed from a traffic ticket, I think nondisclosure should be available.
I would also like to see the bill address the issue of how motorists who hold commercial driver's licenses will be affected. If we are allowing the deferred to count as a conviction for enhancement purposes, what effect will they have on a CDL? Will the DPS take advantage of that provision and impose surcharges for drivers who take deferred adjudication in a DWI case?
I would like to see language to the effect that there will be no civil penalties imposed by the DPS for any motorist who takes deferred probation in a DWI case. That means no surcharge, no license suspension and no disqualification from driving a commercial vehicle. If you want to disqualify CDL holders if they were arrested for DWI while driving a commercial vehicle, that's fine.
I also think the requirement that a motorist on deferred probation install an ignition interlock may be overkill. However, since judges routinely require an interlock as a condition of granting an occupational license, I can live with that. I do think, though, that it should be up to the judge whether the device should be required. One size fits all solutions from Austin rarely work as planned.
In short, while I am opposed to HB 189 as written, I do think it's a step in the right direction.
Wednesday, December 29, 2010
My phone the scanner
I discovered a nifty app for my droid last week - Document Scanner by PWN with your Phone. The app allows you to take a picture of a document and convert it to a PDF file that you can store on your phone, e-mail to someone or upload to Google Docs.
There is no limit to the number of pages you can incorporate into a document - and you can add more pages at a later date. The program is easy to use, just a couple of clicks and you've got your PDF file.
I used the app to scan an entire case file the other day and the quality was outstanding. By uploading the PDF file to Google Docs I was able to download it to the hard drive on my desktop and print out the documents later that day.
Document Scanner sells for $3.98 and there is a trial version you can test drive for 15 days at no cost.
There is no limit to the number of pages you can incorporate into a document - and you can add more pages at a later date. The program is easy to use, just a couple of clicks and you've got your PDF file.
I used the app to scan an entire case file the other day and the quality was outstanding. By uploading the PDF file to Google Docs I was able to download it to the hard drive on my desktop and print out the documents later that day.
Document Scanner sells for $3.98 and there is a trial version you can test drive for 15 days at no cost.
Tuesday, December 28, 2010
A closer look at HB 189
Proponents of HB 189, which would allow for deferred adjudication in DWI cases, are not supporting the bill our of the goodness of their hearts. They aren't supporting the bill because they believe that motorists accused of drunk driving deserve a second chance. They aren't supporting it because they came to the realization that the penalties imposed for DWI in Texas are out of proportion to the seriousness of the offense.
Currently a motorist accused of driving while intoxicated has two choices -- plead the case or take it to trial. In some counties the threat of trying the case is enough to receive an offer of a plea to a "reduced" charge of reckless driving or obstruction of a highway. In Harris County, if you have a clear record and no mental health issues you can enter the DIVERT program - if you can stomach the requirements and believe the promised result.
Due to the sheer volume of DWI cases around the state, prosecutors are doing what they can to reduce trial dockets and this means, in many counties, doing whatever it takes to get that DWI case off the books.
Casting aside, for the moment, the fact that DWI is an opinion crime and that the vast majority of motorists charged with drunk driving did nothing more than commit a minor traffic offense, imposing ridiculously high surcharges and license suspensions all because a motorist failed to signal a lane change and had alcohol on his breath is beyond absurd. Motorists should be given another option to resolve their cases.
The fact is the majority of drunk driving cases are very triable. Generally the worst possible outcome for a first-time offender is a lengthy probation and an ignition interlock device. Absent some very bad facts or intervening circumstances, there's no reason to plead out a case.
While I support the concept of deferred adjudication for motorists accused of DWI, I have qualms with the particulars of HB 189.
As I pointed out yesterday, the proposed legislation would forbid a person from obtaining an order of nondisclosure on a DWI deferred. Quite frankly, that makes the proposal a non-starter from the beginning. The carrot in a deferred is that you can obtain an order of nondisclosure that prevents anyone outside law enforcement and the agencies and entities listed in the statute from seeing information related to the arrest.
The problem is employers, landlords and others treat deferreds the same as convictions. If a person has completed their probation and done everything required of him by the court, he should be able to obtain an order of nondisclosure. Potential employers and landlords don't need to know he was arrested for driving while intoxicated.
HB 189 would also require that an ignition interlock device be placed on the car of anyone on a deferred probation for driving while intoxicated. While I think that is an extreme measure, it is well within the purview of the court to order an ignition interlock device as a condition of probation. This type of a one-size-fits-all plan, however, doesn't always work and isn't always appropriate. Let's be real, people plead to cases for a variety of reasons - and not always because they are guilty.
I don't have a problem with the provision stating that, for enhancement purposes, a deferred on a DWI will be considered a conviction. After all, when a person enters a plea in exchange for a deferred, the judge will state that based on the evidence before the court he finds that there is sufficient evidence to enter a finding of guilt but that he will defer that finding pending the completion of the probation. One concern would be whether a DWI deferred could be used as a conviction to enhance any other misdemeanor.
Another area of concern, raised by a colleague of mine, is what happens to a motorist who holds a commercial driver's license? Will CDL holders be eligible for a deferred on a DWI? Will it matter whether or not they were driving a commercial vehicle or a private car? Will the DPS consider that deferred to be a conviction for the purpose of suspending the motorist's license?
The proposed legislation is not perfect and I would not support it in its current form. I do believe, however, that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted.
See also:
"MADD endorses deferred adjudication for first-offense DWI" Grits for Breakfast (12/28/10)
"Another bad DWI idea in Austin" Defending People (12/27/10)
"Deferred for DWI?" Dallas Criminal Defense Lawyer Blog (12/27/10)
"The DWI deferred conviction - House Bill 189" Dallas Criminal Defense Lawyer Blog (12/27/10)
Currently a motorist accused of driving while intoxicated has two choices -- plead the case or take it to trial. In some counties the threat of trying the case is enough to receive an offer of a plea to a "reduced" charge of reckless driving or obstruction of a highway. In Harris County, if you have a clear record and no mental health issues you can enter the DIVERT program - if you can stomach the requirements and believe the promised result.
Due to the sheer volume of DWI cases around the state, prosecutors are doing what they can to reduce trial dockets and this means, in many counties, doing whatever it takes to get that DWI case off the books.
Casting aside, for the moment, the fact that DWI is an opinion crime and that the vast majority of motorists charged with drunk driving did nothing more than commit a minor traffic offense, imposing ridiculously high surcharges and license suspensions all because a motorist failed to signal a lane change and had alcohol on his breath is beyond absurd. Motorists should be given another option to resolve their cases.
The fact is the majority of drunk driving cases are very triable. Generally the worst possible outcome for a first-time offender is a lengthy probation and an ignition interlock device. Absent some very bad facts or intervening circumstances, there's no reason to plead out a case.
While I support the concept of deferred adjudication for motorists accused of DWI, I have qualms with the particulars of HB 189.
As I pointed out yesterday, the proposed legislation would forbid a person from obtaining an order of nondisclosure on a DWI deferred. Quite frankly, that makes the proposal a non-starter from the beginning. The carrot in a deferred is that you can obtain an order of nondisclosure that prevents anyone outside law enforcement and the agencies and entities listed in the statute from seeing information related to the arrest.
The problem is employers, landlords and others treat deferreds the same as convictions. If a person has completed their probation and done everything required of him by the court, he should be able to obtain an order of nondisclosure. Potential employers and landlords don't need to know he was arrested for driving while intoxicated.
HB 189 would also require that an ignition interlock device be placed on the car of anyone on a deferred probation for driving while intoxicated. While I think that is an extreme measure, it is well within the purview of the court to order an ignition interlock device as a condition of probation. This type of a one-size-fits-all plan, however, doesn't always work and isn't always appropriate. Let's be real, people plead to cases for a variety of reasons - and not always because they are guilty.
I don't have a problem with the provision stating that, for enhancement purposes, a deferred on a DWI will be considered a conviction. After all, when a person enters a plea in exchange for a deferred, the judge will state that based on the evidence before the court he finds that there is sufficient evidence to enter a finding of guilt but that he will defer that finding pending the completion of the probation. One concern would be whether a DWI deferred could be used as a conviction to enhance any other misdemeanor.
Another area of concern, raised by a colleague of mine, is what happens to a motorist who holds a commercial driver's license? Will CDL holders be eligible for a deferred on a DWI? Will it matter whether or not they were driving a commercial vehicle or a private car? Will the DPS consider that deferred to be a conviction for the purpose of suspending the motorist's license?
The proposed legislation is not perfect and I would not support it in its current form. I do believe, however, that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted.
See also:
"MADD endorses deferred adjudication for first-offense DWI" Grits for Breakfast (12/28/10)
"Another bad DWI idea in Austin" Defending People (12/27/10)
"Deferred for DWI?" Dallas Criminal Defense Lawyer Blog (12/27/10)
"The DWI deferred conviction - House Bill 189" Dallas Criminal Defense Lawyer Blog (12/27/10)
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