These are the musings, ramblings, rantings and observations of Houston DWI Attorney Paul B. Kennedy on DWI defense, general criminal defense, philosophy and whatever else tickles his fancy.
On January 11, 2008, Sam Farhat was driving 10 miles below the speed limit in Denton County, Texas. An officer from the Highland Village P.D. saw Mr. Farhat and followed him for about a half mile until Mr. Farhat signaled and turned into a fast food restaurant. The officer stopped Mr. Farhat in the parking lot of the restaurant and told Mr. Farhat he saw him swerving on the road.
After Mr. Farhat exercised his rights not to perform roadside calisthenics or blow into the state's breath test machine, the officer swore out an affidavit and applied for a warrant to draw blood. In his affidavit, the officer stated:
On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley #516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road.I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone.I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates.The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane.As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot.I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC.I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic].I asked the defendant to step out of the vehicle to check to see if he was ok to drive.The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.
Mr. Farhat filed a motion to suppress the blood test result and, after his motion was denied, pleaded no contest. Mr. Farhat entered his plea reserving his right to appeal the conviction.
Pursuant to request, the court made the following findings:
FINDINGS OF FACT
At about 12:50AM on January 11, 2009, Corporal Patrick Finley of the City of Highland Village Police Department was [traveling] westbound in the 1900 block of Justin Road in Denton County, Texas when he observed a vehicle traveling at 30 MPH in a 40 MPH zone. He further observed that the vehicle weaving from side to side and travelled in the left lane of traffic (a reasonable interpretation being that he was driving in the wrong lane, to wit: the oncoming lane) for approximately one-half a mile. The Officer stopped the vehicle, identified as a BMW with dealer plates, in a parking lot at 2180 Justin Road. Upon contacting the driver, the Officer observed two pill bottles in the console, and asked the driver, identified as Samuel David Farhat to step out of the vehicle. The driver refused to participate in roadside tests to determine intoxication. The Officer, suspecting the driver may be intoxicated, based on the erratic driving behavior, the pills in the console, and the Officer’s opportunity to personally observe the driver, subsequently placed the driver under arrest. Corporal Finley further sought and obtained a search warrant for the driver’s blood from a qualified magistrate.
CONCLUSIONS OF LAW
Viewing the issuing magistrate’s determination in a reasonable, commonsense, and realistic manner, the four corners of the affidavit provided sufficient probable cause to issue a warrant for seizure of the defendant’s blood.
The Fort Worth (Texas) Court of Appeals then reversed the trial court's decision, in Farhat v. Texas, No. 02-10-00030-CR (Tex.App.--Fort Worth 2011) on the grounds that the warrant was invalid because it did not provide the magistrate with "a substantial basis for concluding that probable cause existed." The court noted that nowhere within the "four corners" of the warrant (the affidavit is considered part of the warrant) was information provided that would provide the magistrate "with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood."
The problem for the officer was that he failed to note the personal observations he made during the encounter that gave him reason to believe that Mr. Farhat was intoxicated. When reviewing a warrant, all of the information giving rise to probable cause must be stated within the warrant itself. While the officer could testify at trial about his personal observations of Mr. Farhat, that testimony cannot be used to support a warrant. In other words, the sufficiency of a warrant is based entirely on the information included within its "four corners."
Earlier today I received the following e-mail from Frederick Moss, a law professor at SMU and a member of the State Bar's ethics rules committee:
Mr. Kennedy:
Let me correct one thing you said about the referendum on the changes to the ethics rules. You said that the Bar is asking Texas Lawyers to vote all of the changes either up or down. That is incorrect. The referendum ballot will bunch the changed rules into six separate votes, so if you oppose one or more rules, you can vote against them while you can vote for those you don't object to.
Second, you characterize the Bar president's claim that some of the criticism of the proposed rule changes are "misinformation" as calling the critics "liars." This is not true (or fair). The president is just saying that some of the information the critics are dispensing is wrong. He is not saying it is intentionally false. Many of the criticisms voiced are wrong, based, I believe, on a misunderstanding of the proposals and their compatibility with the current rules and the ABA Model Rules. "Misinformation" may be intended or unintended.
Thank you.
Fred Moss
Professor Emeritus, SMU Dedman School of Law,
Member of the SBOT ethics rules committee
PS, Could you please post this reply on your blog for me? I tried to do so, but couldn’t figure out how to do an “open ID”. Sorry. I’m just not technologically adept. Thank you.
To Mr. Moss' first point, my original post was incorrect (it has since been corrected). Lawyers in Texas will be asked to approve six proposals encompassing a number of proposed rule changes. By bundling them together, the State Bar is using the "don't throw the baby out with the bathwater" argument. You might not like this proposed change, but look at the other ones in the proposal.
Sure, I think it's a really bad idea for a lawyer to sleep with a client. Nothing good can come of it. But while I may support that proposed change, I cannot support the proposals regulating advance fees or the changes to the rules regarding attorney-client privilege.
Rule 1.05. Confidentiality of Information
(a) "Confidential information" includes both "privileged information" and "unprivileged client information." "Privileged information" refers to the information of client protected by the lawyer client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 503 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. "Unprivileged client information means.
(1) in the case of client or former client is all information relating to client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client from whatever source, whether acquired by the lawyer personally or through an agent, other than information that is or becomes generally known or is readily obtainable from sources generally available to the public; and
(2) in the case of prospective client, as described in Rule 1.17. is information furnished to the lawyer by that prospective client, either personally or through an agent or other representative authorized to act on the prospective client's behalf, in the course of seeking legal representation, other than information that:
(i) is or becomes generally known or is readily obtainable from sources generally available to the public; or
(ii) is furnished under the circumstances described in Rule 1.17(d)(2).
The proposed changes to Rule 1.05 mean that what's confidential isn't necessarily confidential. Should this proposal be adopted, when a client sits down and asks you if what he's telling you is confidential, the best answer you can give him is "it depends." I would like someone to explain to me how this aids in our representation of clients accused of committing criminal acts. It's not as big a concern in a civil suit because everything comes out before trial thanks to our civil discovery rules. It's a big concern in criminal prosecutions.
As to Mr. Moss' second point, the State Bar is burning up the internet with e-mails from Bar officials telling us why the proposed changes are the equivalent of sliced bread. Every one of these e-mails attacks the voices that raise questions about the new rules. And while the State Bar is sparing no expense to entice lawyers across the state to vote for changes, nowhere on the State Bar's website is there any dissenting opinion.
For another perspective on the proposed changes see Texas Rules Commentary. You won't find the same type of open discussion on the State Bar's website and you certainly won't see it in any of the e-mails you receive begging you to vote for the changes and attacking anyone who opposes them (which are paid for by your annual dues).
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.
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:
[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.
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.
" '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 Sheriff
The 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.
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.
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:
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.
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.
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?
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.
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 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.
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.
On that fateful April night, Dr. Mudd made a decision that carried with it great consequences. Whether he knew of the conspiracy to assassinate the president or whether he was part of it are questions for which I have no answers. He did, however, make a choice to lie about Mr. Booth's visit when asked by investigators. And, for that decision, he paid a very steep price.
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
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.
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...
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.
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.
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:
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.
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.
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.
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.
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.
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 headsand 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.
