Tipping the jury in your favor

Ever wonder what makes one idea become the next big thing while another just dies on the vine?

Ever wonder why Hush Puppies made a comeback? Or why the crime rate in New York City plummetted? Or why the rates of venereal disease in Baltimore increased?

Malcolm Gladwell did and he wrote a book exploring the how's and why's behind the idea that makes it. In The Tipping Point, Mr. Gladwell points to three phenomena and their role in determining the next social epidemic to come down the pike. Those three phenomena are the Law of the Few, the Stickiness Factor and the Power of Context.

Gladwell's Law of the Few looks at the role of connectors, mavens and salesmen in creating social epidemics. We all know people who seem to know everybody else. My grandmother's late companion was like that - it seemed that he knew everyone. Gladwell labels folks like that connectors. These connectors are important in the spread of a social epidemic precisely because they have so many connections across race, religion, ethnicity, income and political ideology.

Mavens have fewer connections but they have knowledge. What to know the best car on the market? How about the best hi-def television? Or even the best place to buy gas? Mavens know the answers and they are very influential among their circle of friends.

The mavens and connectors interact with salesmen who bring the ideas or knowledge to a wider array of people and the seeds are sown for the epidemic to go viral.

Now these messengers matter, but there must be a message to send and that is what stickiness is all about. Is the message memorable? Does the message make you want to know more? The stickier the message, the more the recipients want it. And the more the recipients want the message, the easier it is to "infect" the next group.

The final factor is the context of the message. Your message may be sticky and you may have an army of messengers, but if the initial conditions of your delivery aren't right, then the social epidemic can be avoided. Gladwell points out that when analyzing a situation we often fall victim to the fundamental attribution error which is a fancy way of saying we tend to analyze the actors' fundamental character traits and ignore the environment.

According to Gladwell, when these three phenomena all come together an idea can "tip" and become the next social epidemic - whether we're talking about the comeback of Hush Puppies, the popularity of Blue's Clues or why Paul Revere's ride was so successful.

Understanding these three laws is vital when preparing a case for trial. First, is your message sufficiently sticky? Can you sell your theme to the panel and will they want to "buy" it?

Don't forget the context of your message. What was happening at the time of the event? What role, if any, did your client play in what happened? What is the public's mindset regarding that particular crime?

Finally, who are the mavens on the panel? Who will the other panelists look to for guidance? Who are the salesmen? Which panelists can take your theme and run with it?

The Tipping Point looks at those critical factors that make one idea take off while another idea falls by the wayside. Use the same analysis to "tip" that jury in your favor.

Harris County Jail draws ire of the feds

So it's not enough that the Harris County Jail has failed four of the last six inspections conducted by the Texas State Commission on Jail Standards, now the Harris County Jail has drawn the ire of the U.S. Department of Justice.

According to the feds, poor health care standards and life-threatening conditions at the jail are violations of the inmates' constitutional rights.

“The (DOJ) found that the jail fails to provide detainees with adequate: (1) medical care; (2) mental health care; (3) protection from serious physical harm and (4) protection from life safety hazards.” -- Justice Department spokesman Alejandro Miyar

Now before we get our panties in a wad about "coddling criminals," let's not forget that every person brought before the court accused of a criminal act is innocent unless proven guilty beyond any reasonable doubt. As a result of Harris County's refusal to adopt personal bonds on minor criminal offenses and the county's reliance on its bond schedule, there are folks in the Harris County Jail who are, in the eyes of the law, wholly innocent yet having to endure potential life-threatening conditions while awaiting their day in court.

The solution is not, as Sheriff Adrian Garcia would lead us to believe, building new jail facilities. The solution is to release minor offenders on personal bonds with a promise to appear in court and to find a way to treat drug addicts without locking them up in the jail.

See also:

• Crowded house (The Defense Rests, 1/26/09)
• Harris County jail fails inspection (again) (The Defense Rests, 4/18/09)
• Harris County Sheriff wants a new jail (The Defense Rests, 5/7/09)

Texas Governor lacks authority to issue posthumous pardon

Back in February I wrote about the sad case of Timothy Cole, a young man wrongly convicted of rape who was exonerated ten years after his death behind bars.

Now comes word that Governor Rick Perry lacks the authority to grant a posthumous pardon because a proposed constitutional amendment did not make it out of the legislature before the end of the regular session.

"We're extremely disappointed in this," said Cole's brother Cory Session. "He said he would take care of it. If taking care of it is letting it wait for another two years, no. It's been 25 years. We're tired of waiting."

According to the Texas Board of Pardons and Parole, while Gov. Perry is empowered to issue pardons to living people, he does not have the power to issue a pardon after a person's death.

"I believe we are going to find a way to grant clemency to Tim Cole. We're pretty optimistic." -- Jeff Blackburn, Innocence Project of Texas.

The family's next step is to seek a pardon from President Obama.

A chicken in every pot and an interlock in every car?

As Congress debates the level of highway spending for the upcoming year, the Alliance of Automobile Manufacturers has suggested that Congress spend $30 million to develop devices to detect alcohol in drivers. The Insurance Institute for Highway Safety estimates that if everyone who had a blood alcohol concentration of .08 or higher was prevented from driving that 9,000 highway deaths a year could be prevented. 

At a hearing on Monday of the Commerce, Trade and Consumer Protection Subcommittee of the House Commerce Committee, the auto manufacturers’ vice president for vehicle safety, Robert Strassburger, cited figures from New Mexico, which mandates interlocks after a first drunken-driving conviction. Alcohol-involved crashes in New Mexico are down 30 percent, injuries 32 percent and fatalities 22 percent, he said.

Our friends in the automotive industry are not necessarily proposing that every new car come installed with an interlock device. They are, however, proposing that the money be spent to develop passive technologies to prevent impaired drivers from starting their cars. Matthew Wald, the author of the New York Times "The Nuts and Bolts of Whatever Moves You" blog writes that:

No one is proposing a breathalyzer in every car. The auto and insurance industries are already involved in a cooperative research program to develop passive monitoring systems. Blood alcohol can be measured by bouncing light, in the near-infra-red wavelength, off the skin of a driver. It can also be measured by the sweat on the skin, or by analyzing eye movements.

I want to know how these detection devices would be calibrated? How would they be monitored? Would they operate like a "black box" and store information that could be downloaded by law enforcement as part of an investigation? Is this just another attempt at circumventing our freedom in the name of public safety?

What questions do you have?

Think twice before cursing on the island

Here's a travel tip for those of y'all planning on heading down to Galveston Island over the course of the summer -- don't curse in public.

Think I'm kidding? Check out this story from the Galveston County Daily News...

A man who used a four-letter word to describe to his neighbors how their cat left feces in his yard was acquitted Tuesday of a disorderly conduct citation.

Joseph Loflin, 48, was cited by Texas City police Feb. 8 after he went to talk to his neighbor, who was playing basketball in the street with his 13-year-old daughter.

A Texas City Municipal court jury of three men and three women deliberated 15 minutes before reaching their not guilty verdict, a court official and juror said.

Loflin said he used the vulgar term for cat dung three times when talking to his neighbors about the problem of their cats messing in his yard. He wanted to give them an opportunity to correct the problem before he called animal control to deliver humane traps. Loflin said his dogs would carry the feces in their mouths then entered his home.

“I was confident of the not guilty verdict and proud the jury ... saw through the smoke screen of dishonesty and manipulation,” Loflin said

Loflin, who was represented by defense attorney Calvin Parks, said it was never his intention to incite his neighbor Michael Rainey or his daughter.

“He could have said he would take care of it and thank you very much,” Loflin said. “I gave him that opportunity.”

The conversation with Loflin wasn’t casual, Rainey said. 

“A little piece of America died today when a jury of six says it’s OK to curse in front of a 13-year-old when asked not to,” Rainey said. 

“It’s a sad day for morality, that this type of behavior is condoned,” Rainey said. 

“We work hard to teach our children morals and teach them right from wrong.”

The jury found Loflin not guilty, because there was a lack of evidence, juror John-Paul Caro said.

“It was a he-said, she-said and we felt there weren’t enough witnesses,” Caro said. “Although it would have been better to use another word choice, he wasn’t doing it to incite disturbance of the peace.”

Loflin was at least the third person cited for cursing in public in the last 12 months in Galveston County.

On Aug. 4, a La Marque assistant fire marshal cited Kathryn Fridge after overhearing her drop the F-bomb in Wal-Mart, while she had a conversation with her mother. 

The city’s prosecutor dropped the charge March 19.

A New York man, however, pleaded guilty in Galveston to a disorderly conduct charge in March. 

The manager of Salsa’s Mexican and Seafood Restaurant heard the man use the F-word to berate his female companion during a late lunch.

Kent's case manager speaks out

As the impeachment of disgraced judge and convicted felon Samuel Kent gathers speed, here is the written statement filed with the House task force by Cathy McBroom, Kent's case manager:

McBroom090603

   Publish at Scribd or explore others:            Business & Law              Law & Government                  law              legal      

Even as details emerge, more questions remain about Harris County's new DWI policy

More details of Harris County District Attorney Pat Lykos' plan to offer first-time DWI offenders pretrial diversion emerged during an interview with the editorial board of the Houston Chronicle yesterday.

Ms. Lykos and former judge Roger Bridgwater, who will be in charge of the new initiative, provided more insight into how the new plan might work. According to Lisa Falkenberg's column in this morning's Houston Chronicle, Lykos and company had some answers to some big questions left floating after the plan was announced earlier this week.

• How do they expect it to work? To avoid a formal, record-staining conviction, the offender would sign a contract pleading guilty to the offense, waiving rights to a jury trial and appeals, and agreeing to meet certain conditions. Those could include alcohol treatment and a mandatory breath alcohol ignition interlock device in his or her car for at least six months, for which the offender would pay. Completion of the program could take up to two years. Those who reject the deal could see prosecutors argue for harsher sentences, Lykos said.

• Will the DA’s Office use discretion in who can take part? Yes, after considering the evidence and conducting drug and alcohol screens (paid for by the offender), vetting, and background checks to make sure the person is a “true first offender,” meaning no record for any offense. But Lykos noted that discretion won’t be abused: “It’s going to be uniformly applied so it’s not just given to certain favored people who have certain favored lawyers.”

• If the program helps avoid that first-time conviction, what’s to keep someone from becoming a repeat first-offender? Lykos said records on program participants will be public, to be considered for any future offenses in Harris or other counties, and available in the Harris County crime database, as well as ones maintained by the Texas Department of Public Safety and the FBI. Bridgwater noted that the required guilty plea would help ensure that enhanced penalties could be assessed for future offenses. But, he said, if the person is caught driving drunk again, that second offense would be treated as the first.

I'm still bothered by the requirement that a participant in the program be required to sign a judicial confession and waive both their Constitutional right to trial by jury and their right to appeal. One thing that Ms. Lykos seems to imply is that participants will not be allowed to expunge their records after the case has been dismissed, as current law allows. I am also curious to see what would happen to a program participant who failed to complete the probationary period successfully.

As I said when the plan was revealed, I think it's a step in the right direction because it addresses the fact that DWI is the ultimate "wrong time, wrong place" crime and that for most DWI defendants, it's their first and only time caught up in the criminal justice system.

Pretrial diversion and the importance of an attorney's advice

There has been a flurry of discussion about what the future holds for DWI proseuctions ever since word broke of Harris County District Attorney Pat Lykos' idea of offering pretrial diversions to first-time DWI and drug offenders. Pretrial diversion is a contract entered into between a defendant and the state in which the state promises to dismiss a case if the defendant completes a probation. Unlike deferred adjudication, the case is dismissed without the defendant having to enter a plea, which allows a person who successfully completes the probation to expunge the arrest from their criminal history.

Questions have been raised about requiring defendants to sign judicial confessions and to waive their constitutional right to trial by jury in exchange for the privilege of making a DWI arrest go away sans plea. 

Some are concerned that their source of income (DWI defense) might dry up as a result of the proposal. I don't think that is a likely outcome of Ms. Lykos' proposal. I think, quite the contrary, that there will be even more need for a citizen accused of driving while intoxicated to speak with an attorney before making any decisions.

Anyone accused of driving while intoxicated will need to sit down with an attorney to discuss the full gamut of ways in which their case may be disposed. What is the effect of signing a judicial confession? What are the consequences of waiving the right to trial by jury? What happens if someone violates the terms of their diversionary probation? Will that person be able to expunge the arrest from their criminal history? Who will be eligible to participate in the program? Can the case be fought?

The answers to many of these questions cannot be answered until the District Attorney rolls out the plan in August - but these are issues that must be discussed with those accused of DWI today.

And so it begins...

Today the US House of Representatives began the process of impeaching disgraced US District Court Judge, and convicted felon, Samuel Kent. Kent will continue to receive his federal salary of $174,000 a year plus health benefits unless he is impeached and removed from office by Congress.

A committee staffer indicated that it was likely the 12-member task force within the House Judiciary Committee would approve articles of impeachment next week with the House expected to indict by the Fourth of July. Should the House choose to indict, the Senate would conduct the trial. A two-thirds vote to convict from the Senate would remove Kent from office.

Kent sent a letter to the panel indicating that due to health concerns he would not be going to Washington.

Kent blamed his behavior on alcoholism, an unspecified personality flaw (lack of character, maybe?) and the death of his first wife. It's always ironic for a public official to refuse to accept responsiblity for his actions when that same person decries others for their refusal to do the same.

The Senate is expected to receive the case prior to their August recess.

Adding insult to injury

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

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

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

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

Convicted felon to resign from bench - next year

US District Judge, and convicted felon, Samuel Kent notified President Obama of his resignation from the bench on June 1, 2010. 

That's right. The disgraced judge who was sentenced to 33 months in federal prison refuses to relinquish his seat until this time next year in order to collect another $174,000 and his health benefits for the next twelve months.

Meanwhile, the US House continues to prepare for impeachment proceedings against Mr. Kent.

Said Mr. Kent's attorney, Dick DeGuerin "If they want to continue with the impeachment hearings, you'll know that they're doing it just for the publicity value. It's going to be brutal, it's going to be ugly and it's going to be nasty and there's no reason to do it."

No reason, except it's absurd that a convicted felon who disgraced his bench is still collecting his salary from the taxpayers.

Minnesota and CMI reach agreement on release of Intoxilyzer source code

The State of Minnesota and CMI have reached a settlement agreement in a dispute over the release of the computer source code for the Intoxilyzer 5000EN. The agreement will supposedly allow anyone accused of DWI in Minnesota full access to the machine's computer source code.

Minnesota Department of Public Safety Commissioner Michael Campion said "We are very pleased that we have given the defense attorneys everything they need to analyze the source code..." Of course he didn't mention the $50,000 CMI is handing over to the state to hire experts to defend the source code from challenges.

The agreement calls for CMI to make the source code available for review at its Owensboro, Kentucky headquarters free of charge for any "authorized Minnesota litigant," his attorney and/or his expert. A bound version of the code will also be available to any "authorized Minnesota litigant,"his  attorney and/or his expert for no more than $250.

Some issues still remain, however. Requiring attorneys and experts to travel to Kentucky could price most defendants out of a source code challenge - especially since the bound version is a decompiled version of the source code that omits key aspects, according to Minnesota criminal defense attorney Chuck Ramsey.

The settlement was reached without the input of the Plaintiff/Intervenors and the court will hold a hearing on adopting the agreement just ten days after the agreement was reached -- quite a bit quicker than the 45 days usually required under local rules for the federal courts in Minnesota.

More on the new DWI policy in Harris County

While I applaud Harris County District Attorney Pat Lykos' idea of offering pretrial diversion for first-time DWI offenders, I think she might have to rethink her proposal...

If our unlucky driver sucessfully completes a pretrial diversion and has his case dismissed and then hires an attorney to obtain an expungement, there would be no record of the DWI arrest. So if our unlucky driver is stopped again for suspicion of DWI, it would also be a first DWI.

The move from hell

On my way out to Canyon Lake last week, my wife called movers for quotes on my office move. We found one we liked (Mighty Man Movers) and booked them for a 1pm move on Friday.

All week long I returned to the office after putting my girls to bed so I could take care of all my paperwork and get the office packed. I left the office at 1:30am the night before the move. 

Friday morning broke and I headed down to Galveston to take care of a couple of matters and then rushed back to be at the office in time for the movers. Now I wasn't born yesterday and I know that afternoon moves never go off on time because the morning moves always take longer than planned. Friday was no exception. 

As I sat typing on my laptop in my office I got a phone call about 1:30pm telling me the movers were running late and that they expected to be at the office within the next 60-90 minutes. They were up off 290 and Highway 6. So I ran some errands.

I was back in the office by 3pm and still no movers. Then I got a call telling me they were on the way and asking for directions. Since they were on the Beltway I told them to get off on I-10 and come down to Chimney Rock. Easy, right?

Wrong. I called about 30 minutes later to find out where they were and the driver told me they were waiting for a tow truck to get them out of a parking lot on Westheimer and the Beltway. No one ever had a good explanation for why they were there -- and so the wait continued.

I decided that it was as good a time as any to run my computer equipment to the new office (since I didn't trust Larry, Curly and Moe) - so off I went. As I was putting boxes in the closet my phone rang. It was the movers. They were on the way to my office. I told them I would be back in 15-20 minutes. They assured me they were just around the corner.

Thirty minutes later I was back at the old office -- but no movers. Finally, about 6:15pm they made their way into the parking lot -- in a U-haul truck!?!?

About 45 minutes later everything was packed into the back of truck (and, yes I went back to double-check) and we were off to the Heights. Quite slowly, however, because apparently they had rented the 4-cylinder truck.

After what seemed like an eternity we arrived at the new office. I parked in the front lot and the movers stopped on the street. I ran to the back to make certain they could turn the truck around; but as I returned to the front of the house I heard a noise that a truck carrying all of my stuff shouldn't be making.

Larry, Moe and Curly had tried to back up the driveway and had managed to get the hitch stuck in such a way that the rear wheels of the truck were lifted off the ground. So there they are, blocking the entire width of the southbound side of Heights Boulevard. I didn't quite know what to do or say -- it was like watching a train wreck.

Luckily my wife and girls had arrived with take out from El Rey and we went inside and ate our supper while the Stooges tried to figure out who was on first. In the meantime they unloaded the truck at the foot of the driveway and began wheeling it to the back of the house.

I then had to supervise them while they moved my stuff into the new office because, believe it or not, the detailed diagram I provided them showing where everything went, was (apparently) a bit over their heads. Finally, at a quarter after nine (after getting the truck unstuck with the help of unidentified passers-by), the last of my stuff was in the office and I sent them out into the night to see if they could screw up another move.

I then hung around until a bit after 10 moving boxes around and putting my bookcase back together before heading over to Onion Creek for a (well-deserved) ice cold Shiner.

I'm just glad I can laugh about it now - because I certainly wasn't laughing yesterday.

A sensible DWI policy in Harris County

Today Harris County District Attorney Pat Lykos announced a new DWI strategy by which first-time DWI defendants will be eligible for pretrial diversion.

Under pretrial diversion, a person must complete a probation with conditions attached such as being required to install an interlock ignition device on their car, attending drug and alcohol counseling and undergoing random drug tests. Should they complete the probation successfully, the case will be dismissed without a plea being entered. The person would then be eligible to expunge all records of the case from his criminal history once the statute of limitations passed.

This differs from deferred adjudication in that a person who completes a deferred adjudication probation would have already entered a plea and is, therefore, only eligible to seek a petition for nondisclosure of records regarding that case to anyone outside of law enforcement.

Pretrial diversion also differs from deferred adjudication in that if a person is on pretrial diversion and runs afoul of the rules, he is back where he started with no penalty. If, on the other hand, a person on deferred adjudication messes up, he can be hauled back before the judge and sentenced to the full range of punishment -- regardless of what the original agreement was.

“So, we’re going to have a carrot-stick approach. It’ll be pretrial disposition if you will, or deferred prosecution — they’re put under supervision, the DWIs will have the inter-locks, they will not lose their licenses, they will go to work, they will undergo the drug treatment, the urinalysis and everything else. And if they’re successful, the charges are not filed." -- Pat Lykos, Harris County District Attorney

Ms. Lykos' plan will reduce the number of people confined in the Harris County Jail and will enable those who wish to take advantage of the program the chance to help themselves.

Harris County defense bar defends its own

The Harris County Criminal Lawyers Association released the following press release yesterday...

The Harris County Criminal Lawyers Association, Texas Criminal Defense Lawyers Association and Fort Bend County Criminal Defense Lawyers Association announce that they are beginning an immediate investigation into whether members of the Harris County District Attorney's Office committed constitutional violations of the Sixth and Fourteenth Amendments, committed the crime of official oppression, violated the special ethical duties applicable to prosecutors and/or violated the mandatory ethical obligations applicable to all lawyers in making public comments during the course of a pending capital murder trial that appear to be calculated to influence the ongoing proceedings in material and detrimental ways that are unrelated to the issues at the trial, appear to be defamatory with respect to trial counsel, and serve no legitimate or valid purpose, but rather only increase the likelihood that the accused is denied a fair trial. The remarks and their timing were inappropriate, improper and subject to the sternest possible condemnation.

For more information see:

• Fratta's attorney may face inquiry (Houston Chronicle, 5/28/09)
  
• Nude photos take center stage in court (KTRK-TV, 5/28/09)
  
• Lawyer defends forwarding admirer's revealing photo to inmate (ABA Journal, 5/29/09)
  

Defense! Defense!

The best offense is a good defense.

That's true not only in the sporting arena but also in the well of the courtroom.

"Good defense demoralizes the opposition while raising the confidence of the team or individual under attack." -- Shelby Lyman

As chess guru Shelby Lyman points out in his weekly chess column:

"...the defender may be actually quaking under the table, but the better and more determined the moves he makes under duress, the bigger and tougher he looms behind the board."

The same applies in the courtroom. Oftentimes you find yourself up against two prosecutors -- the one sitting at counsel table and the one wearing the robe. It takes a certain chutzpah to stand up and challenge either one in the heat of battle, but the harder you fight when backed into a corner, the more respect (and fear) you will reap down the road.

Regardless of the result, the very act of standing up to defend your ground is a glorious defense of the Constitution. 

Right to counsel? What right to counsel?

Earlier this week the United States Supreme Court took a whack at a citizen accused's right to counsel in its decision in Montejo v. Louisiana, 554 US ___, No. 07-1529 (2008).

Mr. Montejo was charged with first degree murder and an attorney was appointed for him at a preliminary hearing. Later that day police read Mr. Montejo his Miranda rights and asked him to accompany them on their search for the  murder weapon. Mr. Montejo agreed. During the trip, Mr. Montejo wrote a letter of apology to the victim's family that was introduced into evidence, over his objection, at trial. Mr. Montejo was convicted and sentenced to death.

On appeal to the Louisiana Supreme Court, Mr. Montejo's attorney argued that since counsel had already been appointed for Mr. Montejo at the preliminary hearing, the police violated his constitutional right to counsel by asking him to accompany them on their excursion and that, as a result, the incriminating letter should have been suppressed at trial. The state supreme court disagreed and upheld the conviction on the grounds that the right to counsel only attaches once a defendant has made a request for counsel -- and, since Mr. Montejo did not make such a request at the preliminary hearing, the right defined in Michigan v. Jackson, 475 US 625 (1986).

Justice Scalia, in the Court's opinion, wrote that Louisiana's interpretation of the law was impractical because about half the states will appoint counsel for an indigent defendant whether he makes a formal request or not. He also wrote that Mr. Montejo's position was untenable because the rule in Jackson was designed to prevent the police from badgering a defendant into changing his mind regarding his invocation of his right to counsel.

Justice Scalia argues that in Mr. Montejo's case, since he stood mute at the preliminary hearing there is nothing to indicate that he would be opposed to the idea of speaking to the police without the presence of counsel. He argues that by remaining silent, Mr. Montejo had obviously not yet made up his mind to invoke his right to counsel.

"Any criminal defendant learned enough to order his affairs based on the rule announced in Jackson would also be perfectly capable ofinteracting with the police on his own." - Justice Scalia, Montejo v. Louisiana

Of course, Justice Scalia is assuming that most criminal defendants are aware of the entire breadth of their constitutional protections.

"The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free . . . .” Herring v. United States, 555 U. S. ___, ___ (2009) (slip op., at 6). Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” Cobb, supra, at 174–175 (KENNEDY, J., concurring), but alsodeters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain unco-erced confessions is not an evil but an unmitigated good.” McNeil, 501 U. S., at 181. Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift." -- Justice Scalia, Montejo v. Louisiana

So now we are reduced to a balancing test when it comes to whether or not the right to counsel is to be observed. Silly me, I always understood our 5th and 6th Amendment rights were there to protect the individual against the overwhelming might of the state.

Ours is an adversarial system and one's basic protections should not be weighed against the inconvenience it would cause those seeking a conviction.

What do you think?

Another Minnesota court orders the release of the Intoxilyzer's source code

Today a Minnesota Court of Appeals reversed a lower court's decision to deny a request by a citizen accused of driving while intoxicated to examine the source code of the Intoxilyzer 5000EN.

Mr. William Robert Thompson was stopped by Minnetonka Police and requested to blow into the state's breath test machine. The machine determined Mr. Thompson had an alcohol concentration of .10.

Mr. Thompson challenged his license revocation asking the court to suppress the breath test result and to order the Commissioner of Public Safety to provide him with the machine's source code. Included in his request was an affidavit from Harley R. Myler, Ph.D., P.E. stating that without examining the source code, it would be impossible to determine whether the machine was operating properly at the time of Mr. Thompson's test. He also included two affidavits describing previous problems with the breath test machines used by Minnesota.

The Commissioner of Public Safety argued against the discovery request on the grounds that the state of Minnesota was involved in litigation against CMI (manufacturer of the Intoxilyzer) for breach of contract, breach of the implied covenant of good faith and fair dealing and copyright infringement.

The district court denied Mr. Thompson's requestt on the grounds that Mr. Thompson had failed to demonstrate that the source code was relevant to his defense. The court of appeals overturned the lower court's decision on the grounds that "the source code may reveal deficiencies in the accuracy of the Intoxilyzer 5000EN that would be relevant to a claim or defense..."

The tide is turning quickly on the "trade secret" defense used by CMI and the "it's not in our possession" defense used by prosecutors in DWI cases. The blueprint seems quite clear for obtaining breath test machine source code -- testimony from an expert regarding the need to examine the source to determine if the software functions correctly; evidence of machine malfunctions; case law from Kentucky, Minnesota and New Jersey where courts have ordered the state to turn over the source code; and, most importantly, a showing that an examination of the source code is relevant to the defense of the case.

It all adds up to incompetence

Today the Houston Chronicle reported that more than one-third of the attorneys appointed by Harris County judges to represent people charged with capital offenses accepted over 150 felony assignments per year -- the standard adopted by National Legal Aid and The Defender Association. The article highlights attorney Jerome Godinich, who has averaged more than 350 felony assignments a year!

Let's do the math. There are 52 weeks in a year and five working days in a week. That's a maximum of 260 days at the courthouse -- not counting holidays. That means that Mr. Godinich accepts, on average, at least 1.3 felony cases a day, every day. There is no way a competent attorney can provide meaningful representation to his clients working that type of case load.

Stephen Bright, an expert in capital case representation who has taught at Yale and Harvard law schools and reviewed the Chronicle’s findings, said death penalty lawyers have no business handling nearly 400 clients in one year. “That’s way too many cases and would not leave time for any other cases, particularly capital cases.”

The article also points out that judges have ignored their rules and doled out more than one capital assignment to an attorney within a 60 day period.

Godinich took three capital appointments in less than one 60-day period in 2008. One client was found incompetent to stand trial after drinking toilet water, disrobing and claiming he was Jesus Christ II while in the Harris County jail; another was a 15-year-old who pleaded guilty to felony murder charges and accepted a life sentence without possibility of appeal; the third hired another lawyer.

Godinich has agreed to take as many as 10 simultaneous capital cases over the past five years, though only a few were death penalty cases.

Even more disturbing is the line that "[s]ome felony cases can be resolved in minutes..." It is impossible to investigate a felony case in "minutes." It is impossible to determine whether there are any legal issues to litigate. It is impossible to analyze the factual evidence or to interview witnesses in "minutes." The only thing that's possible to do in "minutes" is to parade a client in front of a judge and have him branded a felon for life.

Godinich, who juggles federal cases and misdemeanors along with his 360 felonies, has refused interview requests. But in a letter to the Chronicle, he defended his indigent defense record, saying he aims to defend his clients “to the best of my ability.”

“That entails working seven days a week and investing countless hours in preparation to ensure that my clients receive their rightful due process,” Godinich wrote. “ It is not an easy job, but it is work that is challenging and has given me enormous personal satisfaction. That is why my clients know who I am and depend on me to stay invested in the process.”

One of his hundreds of Harris County clients, Phillip Hernandez, has been awaiting trial for 18 months on child sexual abuse charges and claims Godinich has never visited him in jail to discuss his innocence claim. Hernandez’s pre-trial hearing was scheduled earlier this month, but the inmate said he learned it had been postponed at the last minute from a bailiff. Godinich did not attend court that day, records show.

Heading out to God's Country

This weekend my wife, girls and I are going on a well-deserved family vacation to the Texas Hill Country.

My reading fare will consist of Tipping Point by Malcolm Gladwell, an old James Bond paperback I shall pick at random and a book of Sudoku puzzles. It's possible there may be a book review come next week - but I'm not making any promises.

Have a wonderful and safe Memorial Day weekend.

The eyes have it

Arresting officers in DWI cases love to get on the stand and announce that your client exhibited all six "clues" in the horizontal gaze nystagmus (HGN) test and, as a result, it was a foregone conclusion that your client was intoxicated.

But wait just a second - even though this "test" is couched in scientific terms, the follow-the-pen show on the video is far from being either scientific or valid.

Nystagmus is defined by NHTSA as "an involuntary jerking of the eyes." NHTSA states that alcohol causes horizontal gaze nystagmus.

The American Academy of Opthamology defines the condition as "is an unintentional jittery movement of the eyes" that "usually involves both eyes and is usually exaggerated by looking in a particular direction."

So, for your police officer trained to diagnose eye conditions by another police officer, nystagmus is an indicator of intoxication. To a trained medical practitioner, however, nystagmus is a medical condition.

When an officer detects "nystagmus" someone is likely to be placed under arrest and hand-cuffed. When a trained medical practitioner detects nystagmus, on the other hand, he is going to conduct a thorough evaluation and will more than likely call in another specialist to examine the patient.

When an officer conducts the pen-and-eye test in the field, there are no controls for the effects of weather, lighting or traffic conditions. The officer must estimate the time for each pass of the pen and the distance the pen travels to the side. When a trained medical practitioner conducts an eye test to determine if nystagmus is present, the test is performed in a controlled environment with medical instruments by a doctor who went to medical school.

Finally, when an officer detects "nystagmus," he is looking for evidence to confirm his suspicion that the motorist is intoxicated. When a trained medical practitioner detects nystagmus, his job is to eliminate all possible causes until he can diagnose the underlying cause.

The scientific literature indicates a myriad of conditions responsible for nystagmus - from epilepsy to Parkinson's disease and from muscular dysfunction to head trauma. But, according to the police officer's diagnosis, the only cause for nystagmus of a driver being tested at the side of the road is alcohol consumption.

The DNA effect

Fearful that a jury will accept DNA evidence as definitive as a result of the so-called "CSI Effect?" 

New research indicates that your fears may be somewhat overblown. Jurors tend to be somewhat skeptical about the reliability of DNA evidence, but, when that evidence matches the defendant, guilty verdicts tend to follow.

Juror research demonstrates that the presence of DNA evidence tends to enhance the credibility of other evidence introduced during the trial. Thus we have the dreaded "feedback loop." We are then left with the question of which came first: jurors' reliance on DNA evidence to support a conviction or juror's reliance on the other evidence?

The studies also indicate that jurors give more weight to DNA evidence when it's couched in terms of percentages rather than ranges. In other words, a juror is more likely to accept the DNA evidence when the state's expert says there is a --% chance that the defendant committed the crime rather than there is a one in a -- chance that a person selected from the general population at random was present at the scene.

Given this, the way in which DNA evidence is presented at trial can affect the way in which a juror looks at the rest of the evidence presented.

Statistician anyone?

No refusal weekend to premiere on Lake Conroe

Montgomery County has announced a No Refusal Weekend for boaters on Lake Conroe this Memorial Day weekend. Assistant District Attorney Warren Diepraam (formerly of the Harris County D.A.'s Office) said that he believes this is a first in the United States.

Between 2004 and 2008, there were 57 arrests for boating while intoxicated

(BWI) on Lake Conroe (about an hour north of Houston), however few of those arrested were ever prosecuted. Now, armed with cameras on two Lake Patrol boats and four Texas Parks and Wildlife Department boats, the Montgomery County D.A.'s Office is warning boaters to beware.

Montgomery County is also looking to purchase an infrared camera to measure jerking in the eye (nystagmus) allegedly caused by the consumption of alcohol.

The county is looking to run No Refusal Weekends on Lake Conroe on both the Fourth of July and Labor Day weekends as well.

Position yourself

In chess, as in life, position is everything. 

Shelby Lyman notes that:

"Position is the irreducible bedrock of our lives. We spend our years positioning ourselves educationally, financially, socially and intimately."

We do the same thing when handling a case for a client - whether it be a DWI, a robbery, a divorce, a slip-and-fall or a speeding ticket. 

When someone walks through my door who's been arrested for DWI, the first thing we do is talk about the process. We talk about challenging the license suspension, we talk about the various options we have to resolve the case, we talk about the possible consequences 

of each. Then we talk about the arrest. Where did it happen? When did it happen? What are the driving facts? What did the officer do? What happened at the scene? What happened at the station?

When we go to court I get a copy of the video so that I can study it and so that, if necessary, I can have an expert study it as well. I then send my investigator to inspect the scene and speak to any witnesses listed in the offense report.

"From good positions good things flow, from bad ones continuous dismay and trouble."

I do this to set up our position on the case. Do we focus on the stop itself? The field sobriety tests? The breath test? The blood test? The attitude of the officer? Does the breath test result "agree" with the video? I want to be in the best possible position when it comes to fighting the state.

Lyman does note, however, that sometimes you can win from the lesser position:

"The fog of war allows miraculous victories with inferior resources and force. Both Napoleon and Robert E. Lee were geniuses at reading a battlefield configuration, marshaling lesser forces at vulnerable points and then routing the opposing army."

Incidentally, both Napoleon and Lee were chess enthusiasts who were often found playing the game in their tents. But Lyman also notes that, with the exception of time pressure, "chess generals" don't have to contend with the "fog of war" as the board is open for all to see.

The same holds true (in large measure) at the courthouse. Build your position early, don't allow yourself to be boxed into a corner.