Beaten to death in Bangladesh

Imagine being brought before a religious council because you broke one of the Ten Commandments. You have no right to an attorney because it's not a formal legal proceeding. The only think you can do is plead for mercy. Your knees buckle when the head of the council announces you will be publicly lashed for your sin.

Nevermind if what you're accused of isn't a crime. If it's proscribed in the Bible, the Torah, the Quoran or any other religious tome, it's fair game for the religious council.

"What sort of justice is this? My daughter has been beaten to death in the name of justice. If it had been a proper court then my daughter would not have die." -- Dorbesh Khan, the father of Hena Begum

Hena Begum, 14, was alleged to have had an affair with her cousin, a married man, in Bangladesh. Village clerics issued the fatwa, or religious ruling, that Ms. Begum was to receive 80 lashes for violating Sharia law. After the lashing, Ms. Begum was admitted to a hospital for treatment of her injuries where she died six days later.

Last year another woman, Sufia Begum, was sentenced to 40 lashes for committing adultery. The 40-year-old woman died almost a month later after she was admitted to a hospital a week after the beating.

"Her body was swollen and I couldn't even recognise her." -- Taimur Rahman, Ms Begum's brother

Both of these incidents have taken place since the government of Bangladesh outlawed the practice of fatwas in early 2010. It is likely these incidents would never have made news outside of Bangladesh but for the deaths of the women. While these women died, how many others were beaten by religious officials for sinning? How many other religious councils openly flaunt the law in Bangladesh by issuing illegal fatwas?

Police have arrested six people in connection with the two deaths. No word on whether the men involved in the affairs were punished.

Lined up in the deep freeze

It would appear that my colleague, Murray Newman, beat me to the punch with his pictures of folks lined up outside the Criminal (In)justice Center this morning in temperatures that hovered around 27 degrees. Murray's photos show the view up San Jacinto Street.

As Paul Harvey might have said once or twice, here's the rest of the story -- the folks lined up in front of the courthouse on Franklin Street.

Enough of the madness. Most of the security measures at the courthouse are unnecessary. There are plenty of courthouses around this state without metal detectors and they seem to operate just fine.

It's time to stagger the morning dockets. It's time to granting longer resets for cases in which the defendant is out on bond. It's time to tune down the metal detectors. Do we really need everyone to take their shoes and boots off just to get into the courthouse?

You can bet that if the judges, prosecutors, county commissioners and the Office of Court Administration had to stand outside in a slow-moving line in sub-freezing temperatures, things would change.

Police brutality in action

Courtesy of KTRK-13 in Houston and Quannel X, this is the actual video footage of the beatdown of burglary suspect Chad Holley by members of the Houston Police Department.

You will see Mr. Holley getting clipped by a patrol car, falling to the ground, rolling onto his stomach and putting his hands behind his head. Then you will see members of Houston's finest kicking and punching Mr. Holley while he is on the ground.

Anyone who thinks this is an isolated incident is naive. It's just that, more often than not, these incidents take place away from security cameras.



I had a conversation with a client's mother today who couldn't understand why the prosecutor wouldn't dismiss a case against her son. I told her it was because when a prosecutor reads an offense report, he takes it as the gospel truth. Prosecutors either don't realize, or don't care, that offense reports, particularly the reason for the encounter, have more in common with historical fiction than the truth.

Of course when the only person who can challenge the assertions made in the report is the person who arrested, you can almost lie with impunity -- so long as there's no video camera around.

Is the courthouse open?

From Bonnie Quiroga, the director of Justice Administration for Galveston County, comes this link to find out which courts are closed due to inclement weather.

http://www.courts.state.tx.us/courtclosures.asp

Is wintry mix found next to spring mix in the produce section?

Here's what we have to look forward to tonight and tomorrow. My daughter can't quite understand why her daddy doesn't want snow. Ah, the innocence of youth.

Who knew this cold weather was coming?

And what was the cause behind today's rolling blackouts in Texas? A frozen pipe and a busted pipe at two coal-fired power plants took some 7,000 megawatts off the grid this morning. Compounding the problem were pressure drops in natural gas lines due to the freezing temperatures.

A frozen pipe and a broken pipe. Just think about that for a second. The utility companies are swimming in cash but couldn't be bothered with insulating their pipes? The freezing weather wasn't a surprise - we all knew it was coming.

And here's something for all of y'all who had to deal with periodic blackouts -- Jerry World (otherwise known as Cowboys Stadium) was not affected by the blackout order.

One of the state's largest utility providers said rolling statewide electrical outages that started Wednesday in response to high demand from a rare ice storm will not affect Cowboys Stadium in suburban Arlington. But Oncor spokeswoman Jeamy Molina said other Super Bowl facilities, such as team hotels, were not exempt.

So not only do the owners of sports franchises receive public money to build their money-making monuments to wastefulness, they are also exempt from the blackouts that other residents of Texas have had to endure today. Public expenditures for private gain. That, apparently, is the capitalist creed these days.

Think about that while you're watching the millionaires' ball Sunday evening.

Is there an information blackout, too?

Looking for information from ERCOT (Energy Reliability Council of Texas, Inc.) about the rolling blackouts across Texas? Here's what you'll find on their website:

Page Not Found

The page you have requested cannot be found.

Please check to make sure that the URL is typed correctly. The page might also have been removed, had its name changed or is temporarily unavailable.

The site navigation above, the site map or the search function can help you to locate the information that you want.

Texas court lowers the standard for reasonable suspicion

Over the years court have continually lowered the standard by which a police officer may intrude upon the liberty of an individual. A law enforcement officer in Texas can stop a motorist on what the law calls "reasonable suspicion." A mere hunch is not good enough. An officer must be able to point out specific facts that lead to reasonable inferences that some criminal is afoot.

If the officer can't do it, then there was no reasonable suspicion and the stop is deemed illegal.

Well, at least that's the way we learned it.

According to the Texas Court of Criminal Affirms Appeals, a person's strange, non-criminal behavior, can give rise to reasonable suspicion that he would soon engage in a criminal act.

In Derichsweiller v. State, No. PD-0176-10, (Tex.Crim.App. 2011), an officer was called out to a Wal-Mart parking lot after a couple in the McDonald's drive-thru called 911 about a man who drove up alongside their car and grinned at them. He drove around the restaurant and stopped and grinned a second time before driving off into the Wal-Mart parking lot.

There were no allegations that Mr. Derichsweiller was doing anything illegal -- just weird. The officer stopped Mr. Derichsweiller while he was circling the Wal-Mart parking lot. The officer didn't witness Mr. Derichsweiller doing anything remotely illegal. Of course after he stopped him, the officer noted a strong odor of alcohol and then commenced a DWI investigation. And Mr. Derichsweiller had two prior DWI convictions.

The trial court found no problem with the stop and denied Mr. Derichsweiller's motion to suppress. The Court of Appeals, on the other hand, had a problem with the stop and reversed the trial court on the grounds that neither the officer, nor the couple at the restaurant, witnessed any behavior that suggested Mr. Derichsweiller was involved in criminal conduct.

The Court of Criminal Appeals disagreed and stated that

[w]hile it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant's conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability--a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.

So now what does "reasonable suspicion" even mean? Does it mean anything? Sure, Mr. Derichsweiller's behavior was bizarre, to say the least, but does it follow that bizarre behavior now gives rise to reasonable suspicion that someone is about to commit a crime?

Reasonable suspicion of what? The facts pointed to no criminal offense. The officer's observations of Mr. Derichsweiller's driving pointed to no criminal offense. It would appear that the court's decision had more to do with finding a way to uphold a felony DWI conviction than upholding the Constitution.

Rolling blackouts come to Texas

Deregulation will usher in a new era of lower consumer prices and more reliable service.

Those words, or words to that effect, have been uttered every time a regulated industry has been turned loose from government reins. In some instances, it's true. Air travel is much cheaper now that it ever was during the days the government oversaw the industry. The cost of making a long distance call is cheaper than ever, as well.

But when it comes to utilities, the promised benefits of deregulation are (almost) always just beyond reach.

ERCOT, which overseers power supplies in Texas, has asked electrical companies to institute "rotating outages" to compensate for increased demands for electricity during the wintery cold snap gripping the state.

Electricity deregulation was sold to Texans just like it was sold to everyone else. And we've all looked at California's annual rolling blackouts during the summer when energy prices skyrocket. Of course Enron had their hand in the mess by engineering shortages in order to drive prices even higher.

Now we have rolling blackouts in Texas due to the extreme winter weather that has moved into the state. But we've always gotten at least one nasty "blue norther" a year without the state calling for rolling blackouts. What's different?

In the old days the local utility owned the lines (transmission) and the power plant (generation). Money was to be made through the sale of power. The lines were a fixed cost that the power companies had to eat. The Public Utility Commission would approve rate requests from the utilities that took into account the cost of putting up poles and stringing lines.

When the energy market was deregulated the utility companies shed their lines and because marketing companies that bought and sold electricity. The utilities spun off units that maintained the transmission lines. These units became independent companies who made their money charging the marketing companies for shipping electricity across their lines.

In theory, the new utility companies were free to make money without worrying about the cost of installing or maintaining the power lines. This made the companies more profitable. As we all learned in economics, companies who wish to become more efficient take those profits and reinvest them in the company - constructing new plants or exploring new technology to generate electricity.

A growing futures market in electricity developed. Companies could enter into contract to deliver, or purchase, electricity for a given period at a fixed price. Companies could enhance their profitability by hedging their bets with these contracts. Guaranteed fixed prices for electricity and long-term contracts with customers turned the utility market into the equivalent of shooting fish in a barrel for the utility companies.

In reality the utility companies took their buckets of cash and showered their executives with lavish bonuses and plastered their names on sports stadiums throughout the state. The result was that production capacity has failed to keep up with the demand for electricity.

"Although we realize this is an inconvenience for our customers, these controlled rolling outages are planned emergency measures designed to avoid potentially longer, and more widespread power outages. We will continue these rolling outages until we receive direction from ERCOT that the electric supply in Texas has stabilized." -- Scott Prozchaka, CenterPoint Energy

Funny how no one ever mentioned the term "rolling blackouts" when trumpeting the benefits of deregulation.

Pounding the pavement

My knees and calves are still a bit sore from running 26.2 miles through the streets of Houston on Sunday - but it's a good kind of sore. It reminds me that I'm still able to lace up a pair of running shoes and do something that most folks can't do. It reminds me that running a marathon isn't about coping with aches and pains and exhaustion; it's about coping with your own mind. It's not that hard if you break it down -- just put one foot in front of the other and repeat...over and over and over...

Here are a couple of pictures to let you get a sense of what it's like just before the race. Both of these pictures were taken about 6am Sunday - the first is outside the convention center and the second is inside the convention center.

I wish I had some in-race photos to share with y'all but, since I refuse to run with anything I don't need, I don't. The most stunning sight continues to be the sea of runners crossing I-10 on the Elysian viaduct in the first mile of the race. My favorite sight will always be seeing my wife and girls along the course.

With the threat of thunderstorms on Sunday morning, the organizers did an awesome job of keeping everyone informed as to what would happen in the event of violent weather in the area. As it turned out, it was wet but the thunderstorms stayed away. Thanks to all of the volunteers along the course - without your hard work this race wouldn't be possible. I get up at 4:45 a.m. and run in the cold and wet because that's what I do for fun, the race volunteers do it so I can have my fun. And thanks to the quarter million folks who turn out on the streets during the day to cheer us on. There are times during the race that I feel I'm running out onto the Cotton Bowl field to do battle with the evil Sooners.

I realize that I'm fortunate to be able to run a marathon. I'm fortunate that I live in a city like Houston that hosts a marathon. After 23 marathons, my best marathon running days are behind me but I keep pressing on because I know that one day I won't be able to.

The perpetual state of war

Being in a perpetual state of war is the perfect way to deflect attention away from the lack of civil rights and liberties and from the growing gap between rich and poor. After all, your boss can't be your enemy if you're fighting an endless war with a neighboring country.

Just look at what evil plans our enemy has in store, the government tells its people. We must defend ourselves against the aggressor next door.We all must make sacrifices so that we can outlast our enemy and win this war. Protesting about your station in life will only show our enemy chinks in our armor -- it is the equivalent of treason. Rally behind the flag.

And so it went in Egypt until a week ago when the masses finally reached their breaking point. Without having Israel as the perpetual enemy of the people, light has finally shone on the policies of the Mubarak government that have left the vast majority of Egyptians living in poverty.

Of course the United States has been in a continual state of war since the attack on Pearl Harbor in 1941. Japan. Germany. The Soviet Union. Vietnam. Libya. Iraq. Afghanistan. Poverty. Drugs. Terrorism.

North Carolina crime lab withheld test results in over 200 cases

Never forget who runs the "crime labs" in most jurisdictions. In most instances they are under the control of a local or state policy agency. In North Carolina they're run by the State Bureau of Investigation.



An audit conducted on the North Carolina crime lab in 2010 found that between 1986 and 2003, there were over 200 cases in which the lab had withheld blood test results. One of those cases involved Mr. Greg Taylor who sat in prison for 17 years for a crime he didn't commit.

According to Chris Swecker, a former FBI assistant director hired to conduct an audit on the North Carolina crime lab:

"There were over 230 cases where reports were not complete. Or reports didn't actually correspond to the laboratory notes, or information was not presented in the report that was in the laboratory notes as to the results of the test. What we saw was ... just not right." 

It may not have been right but it is par for the course in the criminal courthouse.

The state brings charges against an individual through the office of the district attorney following an investigation or arrest by a law enforcement agency. If any tests are conducted on blood, fluids or other substances at a crime scene, those samples are sent to a crime lab operated by (in most cases) either a local law enforcement agency or the state police. The lab technicians were trained by the law enforcement agency, paid by the law enforcement agency and taught to testify by the law enforcement agency. The results of these tests are then accepted as gospel by courts and force fed to juries. Should the defense wish to retest any samples, the defendant must cough up the money for another lab to conduct tests.

This is not unbiased science. This is "science" that is paid for and conducted for the same folks who are trying to lock our clients up. Tests are conducted and reports are written by folks who consider themselves part of the prosecution's team at trial. These same labs then require defense attorneys to issue subpoenas or obtain court orders in order to get copies of reports and test results.

Until these labs are separated from law enforcement and placed under the authority of those not involved in the investigation or prosecution of crime there will be more stories like that of Mr. Taylor.

Death sentence for DUI?

According to this report from WCGL-TV in Atlanta, that's exactly what Willie Sutton received when he was arrested for a second DUI.

Willie Sutton spent 14 hours tied to a restraint chair on the day of his death. And that's just the beginning of this horrible story.

CBS Atlanta has obtained disturbing video from inside the Coweta County Jail that tell the tormenting story of Willie Sutton's death. He was sentenced to 45 days of jail time as a repeat DUI offender. Eight days later, he was dead.

Mr. Sutton, who was suffering from severe delirium tremens as a result of alcohol withdrawal while in the Coweta County Jail, was strapped into a restraining chair that looked straight out of the 1940's for over 14 hours. At the end of the 14 hours, he was dead.

“Well, that's unfortunate there. Death doesn't stop because you come to jail.”  Coweta County (GA) Sheriff Mike Yeager.

While drunk driving is a crime, it's really a symptom of a much deeper problem. Alcoholism is not an issue that our criminal (in)justice system can expect to resolve; it's a medical condition that requires an entire support system. Mr. Sutton may have committed a crime, but he needed to be in a hospital, not in a jail cell.

Sure, there are plenty of folks who are arrested for drunk driving who aren't alcoholics and who don't have drinking problems. For the vast majority of them, a DWI arrest and the subsequent ordeal is enough to change their behavior - that's the reaction of a rational person to the introduction of incentives and disincentives. For the person addicted to alcohol, however, the strongest incentive may not be enough to overcome the addiction.

Willie Sutton needed help. Coweta County decided it would be more efficient to kill him, instead.

Guilty unless proven otherwise

Who among us hasn't commented about the "black-robed prosecutor" sitting on the bench or about having to try a case against two prosecutors - the one at the table and the one at the bench?

On numerous occasions I've sat in the courtroom while the jury was out of the room and listened as the judge advised a young prosecutor how to get a specific piece of evidence admitted or how to lay the proper predicate.  One judge even told a prosecutor while the jury was out to offer our client five days on a second DWI because, as the judge said, the conviction mattered, not the time.

Critics say the judicial system in the Khodorkovsky case worked just the way Prime Minister Vladimir Putin wanted it to. Days before Khodorkovsky's new conviction, Putin said on television that "a thief belongs in jail." It was almost as if he gave the judge a signal, instructing him on what to do.

According to a piece on NPR's Morning Edition, we're not the only ones playing against a loaded deck.

It seems that one is not presumed innocent unless proven guilty in the Russian Federation -- one is merely waiting to see how bad the sentence will be.

[J]udges seem to behave like they are an extension of law enforcement. Prosecutors file charges, and it's a judge's job to convict rather than interfere.

Wander in and out of enough courtrooms at the Harris County Criminal (In)justice Center and you may very well walk away with the same impression. During the recent election it was hard to tell whether some of the judicial candidates were running for the bench or for county sheriff.

One former judge, Alexander Melikov, told NPR that the judges are not bad people. It's just that many have a "mindset that a court is a law enforcement body; it is not an institution there to protect citizens." When he tried to work outside the system around 2003 and '04, his superiors complained that his decisions were too lenient — and he was fired.

It may attract votes to run on a platform of being tough on crime, but it's highly improper and might even be (gasp) unethical. A judge's sole role on the bench is to act as am impartial arbiter. His job is to listen to the arguments of counsel when deciding upon the merits of a motion or determining whether objections should be overruled or sustained.

And, should a defendant come before the bench for sentencing - either on a plea without a recommendation or as the result of a conviction, the judge is obligated to consider the entire range of punishment for that offense -- including probation.

I've asked the question before, and I'll ask it again, when a judge's campaign material says he's "tough," what does that mean? Is he going to hold the state to its burden of proof? Is he going to lend a critical eye to allegations that the police violated a defendant's constitutional rights? Or is he going to act as the second prosecutor in the courtroom?

That's what they do in Russia.

Does the State Bar even care about us?

I sat through three hours of CLE yesterday listening to the pros and cons of the State Bar's proposed changes to the Texas disciplinary rules.

First I listened to Amon Burton, Charles Herring and Jim McCormack tell me what was wrong with the proposed amendments. Well, to be honest, what was wrong with a small handful of them.

According to the State Bar, there will be no material changes to the rules as a result of the amendments. Mr. McCormack then asked the question that every lawyer in Texas should be asking: If you're not going to make material changes, why make the changes?

Just stop and think about that a bit. Let it sink in. So either the State Bar is proposing change for the sake of change or they're just plain lying about the effect of the changes.

As a rule of thumb, we make changes to address problems we encounter. If we're always late in the mornings we wake up earlier. If we think we weigh too much, we make changes in our diet.

In the context of the proposed changes, Mr. Burton wants to know what problem are these proposed changes meant to address. He also wants to know what goals the drafters of the proposed amendments had in mind. Finally he wants to know how much it's going to cost Texas lawyers to comply with the proposed changes.

Mr. Burton estimated that the 88,000 or so attorneys in Texas would each spend an average of 4.33 additional hours making sure they were in compliance with the new rules. He then estimated an average(?) billing rate of $262/hour for a total cost of $99,832.480. I'm not certain where he came up with his estimates, but I'm sure most of my colleagues on the defense bar would love to get a piece of that $262 an hour. It kind of puts into perspective how much counties car about providing quality representation for indigent defendants when the going rate in the Harris County area is anywhere from $50 to $100 an hour for appointed cases.

Then I listened to the State Bar's propaganda piece CLE and my head began to spin as I tried to keep up with the ball as it moved from cup to cup. First you had the State Bar's presenters tell us not to worry that the proposed changes differed from the ABA model rules. No one uses the ABA rules, they insisted. Then later on they said the State Bar used the ABA model rules as a guide or jumping-off point when drafting the rules. Then they told claimed there were no difference between the proposed changes and the ABA model rules.

Oh, lest I forget, the CLE began with an introductory video featuring the State Bar president, Terry Tottenham. And wouldn't you know it, the first thing out of his mouth was that it had been 20 years since the rules had last been changed and that was just too damn long. So that's your main selling point?

One of the presenters told us that some of the rules differed from the ABA model rules because the State Bar wanted the specifics of the rule to be found in the rule itself instead of being hidden in the comments. Then they all spoke of how we needed to read the comments for guidance in how to follow the proposed amendments.

We were told that attorneys who opposed the changes in the conflicts rules were probably acting unethically in the way they practiced. We were told not to worry about the changes in the confidentiality rule because Texas was already less stringent than the ABA on what constituted privileged communication between an attorney and a client.

And we were told it's not a good idea to sleep with a client or condition representation on the willingness of a client to sleep with you. Well, yeah, and if you juggle sharp knives you're likely to cut yourself to shreds.

The presenters also spent a good deal of time telling us how we needed to change the rules so we could show the legislature and the people of Texas that we could govern our profession ourselves. They seemed more concerned with the sunset review of the State Bar in 2015 than with how the rules affected criminal defense attorneys.

Interestingly enough, during the course of the entire three hours there was no one mention of the rules affecting  flat fees or IOLTA accounts. Not a one. Both presentations seemed geared toward attorneys working in large firms who might actually run across situations in which an attorney, or the firm, might be conflicted out of representation.

I really don't care about how large firms run conflicts checks when a prospective client walks in the door. I represent (for the most part) folks who are charged with committing criminal acts; and since I don't assist the state in its efforts to infringe upon the citizenry's rights and liberties, I have very little concern about being conflicted out of a case.

The State Bar of Texas doesn't care about those of who defend those accused of breaking the law. Is the self-governance of the profession really our concern?

I'm from the government and I'm here to help

Now we have a judge in Harris County who is concerned about the amount of time our clients miss from work or school as the result of appearing at court settings in criminal cases. At least that's the story going around.

In order to combat this problem, the Honorable Jay Karahan has decreed that there will only be three pre-trial settings in matters in his court: the initial appearance, a motions setting and a final setting either to plead the case or set it for trial. But will this "rocket docket" actually benefit our clients?

The answer is a resounding no.

Being required to make multiple appearances in court is an inconvenience for most of our clients. They have jobs. Or they're in school. Or they have family obligations. However, in some cases, multiple settings is the only way to obtain the evidence that is necessary to defend the case.

How long will it take to get that blood test result back? What about that lab report on that little rock in the floorboard? What about having to wait for an ALR hearing in a DWI case? How about obtaining maintenance records for a breath test machine?

Will the settings be 30 days apart? 45 days apart? 60 days apart?

Reducing the number of settings will benefit those attorneys who live by "churning and burning" their clients into quick pleas. No longer will they have to pretend to work a case to satisfy a client. Now they can scare their clients into pleading out by telling them that the case is bad and can't be won at trial.

The other result of the "rocket docket" will be more and more cases set on the trial docket. It takes time to prepare a case properly for trial, especially cases in which we're dealing with (pseudo)scientific evidence. It takes time to get an ALR hearing. It takes time to get lab results. It takes time to interview witnesses.

I can think of no reason a client in a criminal prosecution benefits by speeding up the docket - unless they're already in custody (in which case they aren't inconvenienced by multiple appearances). After all, every day that your client is out and about is a victory when you are up against the oppressive power of the state.

If the dockets have become unmanageable, maybe we should look to what's happening on the 6th floor at 1201 Franklin. Harris County District Attorney Pat Lykos operates her office using fear as a motivator. There are prosecutors who are scared to dismiss questionable cases out of fear of retribution by Ms. Lykos.

The "rocket docket" is not being implemented to benefit our clients. Nothing in the criminal courthouse is designed to benefit our clients. The purpose is to coerce more pleas and deprive more citizens of their right to a trial by jury of their peers.

Slow and steady wins the race

I recently handled a dope case in which the police claimed to have found one rock of cocaine in his vehicle. The officer, after cuffing my client and placing him in the back of his patrol car, conducted a warrantless search of my client's vehicle in violation of Gant.

During this illegal search, the officer found what he described as a "small beige piece of rock" on the floorboard of the vehicle. Using his handy Scott Cocaine Test Kit, the officer noted the rock turned blue, indicating the test was positive for cocaine.

According to the Scott Company's website:

Scott Company Drug testing products are Colormetric Field Tests for the presumptive identification of narcotics, illegal drugs and controlled substances.  The chemistry of the reagents found in these tests is of the same type relied upon by forensic chemists in laboratories to detect and identify illicit drugs & controlled substances. We have placed these reagents in better, more accessible packages that allow them to easily and safely used in the field by law enforcement officers. 

Though test accuracy is subjective contingent upon the composition of the substance being tested, we certify our test kits to be no less than 99% accurate. To date, there is no colormetric drug test kit (suitable for field use) produced by any manufacturer that is completely 100% accurate and immune from either inconclusive or false positive readings. 

We were set to argue our motion to suppress some five months after my client was arrested.

On the day of the hearing I got a call from the prosecutor handling the case telling me they were dismissing it. The state wasn't dismissing the case because the prosecutor came to the realization that my client's constitutional right against unreasonable search and seizure, the state was dismissing the case because the lab who tested the rock found in my client's vehicle said it wasn't cocaine.

In the lead up to the suppression hearing, I had another prosecutor tell me that the search was good and that he would offer my client two years in prison in exchange for a guilty plea.

I don't know what disturbs me more about this case: the fact that no one from the DA's office notified me of the lab results until five months after my client's arrest or that a prosecutor was more than willing to send my client to prison for two years without any proof he had broken any law.

The opposition grows

The number of organizations coming out against the State Bar's proposed changes to the disciplinary rules continues to grow:

• Texas Criminal Defense Lawyers Association
• Harris County Criminal Defense Lawyers Association
• Galveston County Criminal Defense Lawyers Association
• Houston Trial Lawyers Association
• State Bar of Texas Council of the General Practice, Solos and Small Firms Section (Props A,B,D and E)

If you know of any other organizations that have announced their opposition to the State Bar's proposals, please let me know so that I can add them to the roll.

Political propaganda disguised as education?

Not to be outdone by those opposing the proposed changes to the disciplinary rules, the State Bar of Texas has decided to bring out of retirement, a free two-hour CLE about the proposed changes. I'm sure that our dues money isn't being used for this propaganda push otherwise passing for continuing legal education.

According to the State Bar:

During this presentation on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct, the panelists will touch on the process of amending the rules but will focus mainly on four of the proposed new rules – Rules 1.00, 1.13, 1.14. 1.17 – and the proposed amendments to four conflict-of-interest rules – Rules 1.06 through 1.09 – that have sparked considerable debate during the amendment process. This webcast is intended to help lawyers understand the current content of proposed rules that will go to a referendum between January 18 and February 17. Take advantage of this opportunity to learn about these proposed rules before exercising your right to vote.

With a panel made up of a former chair of the State Bar's committee on the disciplinary rules, the current chair of the Supreme Court's task force on the disciplinary rules and the Supreme Court's rules attorney, I'm sure you will hear a balanced assessment of the proposed changes.

To the island and back

Here are a couple of interesting photos I took on my way back and forth to the island the other day. Yes, I took them while I was driving. I'm one of those folks who messes around with his cell phone while driving.

I was fascinated with that beam of sunlight making its way through the clouds. This is on my way down to the island.

I found the gradations of grey in the sky had a haunting beauty. This is on the way back to Houston.

Your state bar dues money in action

While killing time at the Galveston County Law Library, I came across this pamphlet on the proposed ethics rule changes. The pamphlet was produced using our dues money and toes the company line on the "need" for reforming the rules. There is no evidence in the pamphlet of any opposition to the proposed changes.

It's telling when the first thing the State Bar president mentions is that it's been 20 years since the ethics rules were last reviewed and changed.

In the January 2011 issue of the Texas Bar Journal Mr. Tottenham notes that "the practice of law has changed significantly over the past 20 years...For example, we did not use technology to the degree we do now." That's all well and good, but what on earth does technology have to do with trying to abolish the flat fee?

Mr. Tottenham, change for the sake of change is not only not a good idea, it's not good policy. If you can't come up with a better argument for changing the rules then I can think of no good reason the rules should be changed.

UT Law offers free CLE on proposed rule changes

For those of you who want more information on the State Bar's proposed disciplinary rules changes, the University of Texas is offering a free one-hour online CLE that addresses issues and problems with the proposed changes.

The CLE is free through January 29, 2011 and again from February 2-18, 2011. There will be a $35 fee for the CLE between January 30 and February 1.

The discussion is hosted by Amon Burton, Charles Herring, Jr. and Jim McCormack who have all spoken out against the proposals.

For more information, click here.

Grievance filed against Judge Killer

The presiding judge of the Texas Court of Criminal Appeals, Sharon Keller, now finds herself the target of a grievance filed by the Texas Civil Rights Project. The grievance alleges that Judge Killer is unfit to practice law (or whatever it is she practices) in Texas.

The group alleges that Judge Killer broke Texas law by failing to disclose her personal finances as required of elected officials. The grievance also accuses Judge Killer of being less than forthright before a tribunal when asked about her role in the execution of Michael Richard.

The text of the Texas Civil Rights Project's press release follows:

GRIEVANCE FILED AGAINST PRESIDING JUDGE OF COURT OF CRIMINAL APPEALS
Alleges Judge Sharon Keller is Unfit to Retain Her License to Practice Law

AUSTIN – A disciplinary grievance against Judge Sharon Keller, Presiding Judge of the Court of Criminal Appeals, the highest court of appeals in the state for criminal matters, will be filed later today with the State Bar of Texas. The grievance challenges Keller’s fitness to retain her license to practice law, citing multiple acts of misconduct by Keller that were revealed in 2010 by the Texas Ethics Commission and the Commission on Judicial Conduct. Keller must be licensed to practice law to remain the Presiding Judge of the Court of Criminal Appeals. Tex. Const. Art. 5 § 4(a).

Texas Ethics Commission
On April 28, 2010, the Texas Ethics Commission (TEC) found that Judge Keller had committed numerous class B misdemeanors in 2007 and 2008 by failing to make personal financial disclosures required by elected state officials in Texas.

Texas state officers and employees must disclose their financial information, swearing under penalty of perjury that each statement is true, to ensure they do not have a direct or indirect interest that substantially conflicts with their duties in the public trust. Tex. Gov’t Code 572.001. However, TEC found that in last two elections years, if not more, Judge Keller failed to disclose a wealth of personal financial information, including:

• Eight sources of income, totaling about $121,500.00;
• Between 100 and 499 shares of stock;
• One money market account, two notes, and 22 certificates of deposit.

State Commission on Judicial Conduct
On July 16, 2010, the State Commission on Judicial Conduct released extensive findings made after a year-and-a-half long inquiry into her conduct leading up to the execution of Michael Richard.

The Commission concluded that Judge Keller knowingly violated Execution-day Procedures of the Court of Criminal Appeals, unlawfully denying Richard the right to be heard, in contravention of the Court’s own rules and Richard’s constitutional rights. Richard was executed at 8:23 p.m. on September 25, 2007.

Lack of Candor to a Tribunal
In addition to the inquiry by the Commission started in the aftermath of Richard’s execution, Judge Keller was sued in federal court by Richard’s next of kin. As the documents included in the grievance demonstrate, Judge Keller’s statements before the federal court and her statements to the Commission were in complete contradiction of each other.

Lack of candor before a tribunal is the most explicit demonstration that an attorney lacks the honesty and trustworthiness to practice law.

Substantial Question as to Honesty, Trustworthiness, and Fitness to Retain Her License Honesty and trustworthiness are the most important requirements for an attorney. The ethical rules governing a lawyer’s conduct prohibit the abuse of positions of public or private trust. This holds even truer for judges, who are “the symbol[s] of both the judicial system and administration of justice.” Texas Lawyer’s Creed, IV.1. Sharon Keller has sullied that symbol.

Public shaming, part deux

First there was the Twitter campaign by the Montgomery County (TX) District Attorney's Office. To refresh your memories, the MCDAO made a big to-do about tweeting the names of motorists arrested on suspicion of drunk driving in Montgomery County. Strangely enough, the MCDAO doesn't seem to tweet the names of those fortunate folks who have been acquitted by Montgomery County juries.

Now it's time for another social media campaign aimed at motorists arrested on suspicion of drunk driving. Now it Huntington Beach, California and Facebook.

City Councilman Devin Dwyer wants to shame motorists arrested for driving under the influence more than once  by posting their mugshots on the police department's Facebook page.

There is a saying: Come to Huntington Beach on vacation, leave on probation. -- Randall Bert, local attorney

Interestingly enough, Huntington Beach Police spokesman, Lt. Russell Reinhart, thinks the idea is a bad one.

We see no value in doing that. Law enforcement is not about public shaming. - Lt. Russell Reinhart

Again, I ask Mr. Dwyer the same question I asked Warrenn Diepraam of the MCDAO: are you going to issue apologies to those folks who aren't found guilty?

Court deems lab reports inadmissible

While standing trial for possession with intent to distribute narcotics, Ronald Johnson objected to the admission of lab reports attesting to the weight of the drugs and to testimony from a supervisor about the contents of the reports in the absence of the lab techs who wrote the report.

The trial court, finding no harm in allowing a witness to parrot the information contained in a lab report written by someone else regarding tests performed by another person, allowed the reports to be entered into evidence and allowed the supervisor to testify to the contents of the reports. Surprisingly enough, Mr. Johnson was convicted.

On appeal (Johnson v. State, No. 09049F (Tex.App.--Dallas, 2011) Mr. Johnson argued that the trial court's decision violated his 6th Amendment right to confront the witnesses against him. The state argued that even if the reports were inadmissible, an expert witness may base his testimony on inadmissible hearsay.

In dismissing the state's contention that the supervisor's testimony was admissible, the court stated that while it was permissible for an expert base his expert opinion on inadmissible hearsay, it was not kosher for a person to act as "little more than a conduit for...testimonial hearsay."

The court found that the reports were testimonial in nature and that Mr. Johnson had not been afforded the opportunity to cross examine either the author or the person who performed the tests. Since the court found the evidence violated Mr. Johnson's 6th Amendment right to confrontation, the court:

should consider several factors: (1) The importance of the hearsay statements to the State's case; (2) Whether the hearsay evidence was cumulative of other evidence; (3) The presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) The overall strength of the prosecution's case.

Having found that the state's case rested entirely on the reports in question, the court reversed the conviction.