Highway fatality rates drop to lowest level since 1949

With state after state ramping up DWI enforcement and dreaming up new ways to violate motorists' rights comes news that the rate of traffic fatalities per 100 million miles has fallen to its lowest rate since 1949. In 2009 there were 33,808 traffic fatalities in the United States, last year that number dropped to 32,788 - despite an increase in the number of miles driven.

But those numbers are doubly interesting because of another NHTSA report I wrote about last December. That report stated that 45,230 motorists were involved in fatality accidents in 2009. It seems like NHTSA's playing around with its numbers. The prior report counted everyone involved in a traffic fatality accident -- regardless of whether or not they were responsible for the accident or injured or killed in the accident.

Some may point to the drop in fatalities as proof that stricter DWI enforcement (and gutting of the 4th Amendment) is working. Any such conclusion is not supported by the evidence, however. Safer cars and the increased use of seatbelts have played a large role in reducing the number of highways deaths. According to the report:

NHTSA has also taken action to improve vehicle safety. The agency has urged automakers to swiftly and voluntarily report safety defects to keep the driving public safe. NHTSA has also encouraged the development and use of technologies to prevent crashes, such as electronic stability control, forward collision warning and lane departure warning systems. The agency also unveiled an updated 5-star rating system in 2010, which established more rigorous crash-test standards and began providing consumers with improved information about which cars perform best in collisions. 

The U.S. Department of Transportation's Federal Highway Administration (FHWA) has also been encouraging the use of Safety Edge technology -- which reduces drivers' risk of running off the road by shaping pavement edge -- on new road and highway projects. FHWA has also promoted the use of rumble strips and cable median barriers to separate opposing directions of traffic to reduce the incidence of crossover head-on collisions.

The rate of highway fatalities decreased the most in the Pacific Northwest and in California/Arizona. Areas in the South where the assault on the Fourth Amendment has been more pronounced saw a much smaller drop in highway deaths.

The fact remains that most DWI stops involve driving behavior that an officer wouldn't think twice about during daylight hours. How many people do you see on the roads everyday that don't signal each and every turn and lane change? How many of y'all do? How many folks get pulled over for malfunctioning lights or turn signals during the day?

The roads are safer today than they've ever been. Too bad we can't say the same about the Bill of Rights.

Maybe their faces will turn up on milk cartons

Neutral and detached magistrates are looking more and more like an endangered species -- particularly in Missouri, according to this piece in the ABA Journal.

In southwest Missouri law enforcement types have decided to declare open season on motorists' 4th Amendment rights and run No Refusal Weekends at DWI checkpoints. That's right, not only will motorists be subject to being stopped without probable cause, they will be compelled to produce evidence that will be used to prosecute them.

Once again we have the police pontificating about the dangers of drunk driving and that motorists should be aware that it's against the law. Points taken. It is dangerous, and illegal, to get behind the wheel of a car if you're intoxicated. The problem is that everyone of us is different and our bodies process alcohol in different ways. Checkpoints don't prevent folks from breaking the law. All they do is allow the police to cherry pick whomever they wish to stop - absent any evidence of bad driving.

But I digress. The new twist in Missouri is the appearance of prosecutors and judges at these checkpoints. Now the officers can fill in check-the-box formatted search warrant affidavits and have a judge sign them on the spot without ever questioning the need to execute a forced blood draw. The presence of the prosecutors allows the state to have little confabs with the men in black robes before the motorist ever gets to speak with an attorney.

If we're going to be fair, then there should also be court-appointed attorneys or public defenders present to consult with the motorists whom are facing the needle and to argue the merits of a search warrant before the judge. But, of course, we'll never see that because our presence would just gum up the works and might actually cause the police and prosecutors to work to obtain convictions in DWI cases.

It's always so nice to see judges who are willing to prostitute themselves out in order to favor curry with the voters for being so tough on crime. If these judges cared one iota about the Constitution they swore to uphold when they took their oath of office, they wouldn't accept fill-in-the-blank or computer generated "auto-texted" search warrant applications for forcible blood draws. If these judges were interested in being neutral and detached, they would question the officers for the need to strap a motorist down and extract a blood sample for a misdemeanor that's just one step removed from a traffic ticket.

But they don't.

Walking a thin line

Until it has been proven that a crime was committed, there are no victims - there are complaining witnesses. It's one of the biggest philosophical problems I have with the whole notion of "victims' rights." The only folks who have rights in the criminal (in)justice system set out in stone (apparently a soft stone such as soapstone) are those accused of breaking the law.

While a case is still pending there is no such beast as victims' rights. Judges and prosecutors who go on and on about protecting the rights of victims in pending cases are either being intellectually dishonest or they just don't get this whole Constitution thing.

That brings me back to a letter I saw in a case file. The letter was sent by an prosecutor to the complaining witness in a theft case. In the letter he informed the complaining witness that the accused had been indicted by a grand jury. So far, so good. He asked the complaining witness to notify him if she moved or got a new phone number. He also asked her to provide proof of any actual losses she may have suffered. Okay. 

But then there was this:

"If someone outside this office contacts you for an interview, notify us before you give the interview. It is your decision whether or not you wish to grant the interview. If the person contacting you states that he is an investigator of the court or a representative of the District Attorney's Office, always ask for identification or feel free to call us."

As near as I can tell, the District Attorney doesn't represent the complaining witness in this case (or in any other case). The complaining witness is just that - a witness. Both the prosecutor and the defense attorney have a right to speak to any witnesses in a case. It's true that oftentimes witnesses don't want to speak with the defense attorney (particularly if they are law enforcement officers), but the District Attorney certainly has no right to tell a witness not to talk with a defense attorney.

The entire tenor of the request is to dissuade a complaining witness from speaking to a defense attorney. Now I understand why a prosecutor might want to do that -- a witness' story tends to change after they've had the opportunity to be briefed by a prosecutor. What a witness says before being prepped tends to be a more truthful account of what happened. (Attend any ALR hearing and you'll see what I'm talking about.)

On the other hand, if a witness speaks with the defense attorney it can actually move the case along more quickly. The attorney can flesh out the story in the offense report and advise his client about what the testimony is likely to be at trial. Such an interview might lead to the defendant accepting a plea instead of pushing a case to trial. The interview might also point out inconsistencies in the story related to the police and allow the prosecutor to adjust an offer or reduce or dismiss a case.

While the letter does not tell a complaining witness not to talk to a defense attorney, it certainly has a whiff of that admonition. While the tone might not cross that ethical line pertaining to witness tampering, it certainly is dancing on the chalk.

Sticking it to the solos

State Representative Burt Solomons (R-Carrollton) has authored a bill (HB1072) that would exempt attorneys employed by the State of Texas from having to pay "membership" fees to the State Bar of Texas. The bill is being promoted as a cost saver for the state.

The bill has passed out of the Judiciary & Civil Jurisprudence Committee this past week.

According to the fiscal analysis, there are 1522 full-time attorneys employed by the State of Texas. Each of those attorneys pays annual dues of $235 to the State Bar for the privilege of being an attorney in the Lone Star State. The passage of the bill will result in the State Bar's losing $357,670 a year for the next five years (assuming that the number of attorneys employed by the state remains constant).

Since the State of Texas pays the annual dues for the attorneys it employs, the bill would save the state $357,670.

The Comptroller of Public Accounts, however, says there are 2,778 attorneys employed by the State so the actual loss to the State Bar would be $652,830 a year.

The problem is the State Bar is going to want to recover that money from someone. And who would that someone be? Every attorney in private practice - or working for local governmental entities. Since firms tend to pay the membership dues of the attorneys working for them, the people who will be hurt the most are solo practitioners who have no one else to pay their bills.

Waving your rights goodbye

The other day I found myself in the discovery room at the Galveston County District Attorney's Office reviewing a file in a new case. Another attorney was in the room with her client. They were watching an in-car video on a computer monitor. The attorney's client was wearing an orange county jail-issue jumpsuit. Standing right behind him were two deputies from the Galveston County Sheriff's Office.

While watching the video, the defendant made comments about police brutality and other alleged sins on the video. All while two officers stood behind him, watching and listening.

His attorney talked to him about what they were viewing, answered his questions and told him what the law was. All while two officers stood behind him, watching and listening.

There needs to be some mechanism by which defendants who are held in jail awaiting trial can view videos pertinent to their case. I understand that an inmate can't just be left alone with his attorney in the discovery room. But reviewing evidence and discussing the law and trial strategy in front of two sheriff's deputies isn't a very good game plan.

The conversation between attorney and client is no longer privileged because neither the attorney nor the client had any reasonable expectation of privacy talking in front of two law enforcement officers. Everything that defendant said can now be considered an admission.

Just what was his attorney thinking? How can you have a meaningful discussion with a client when there are two officers standing right behind him? How can you even allow your client to open his mouth in the presence of the officers? Why not ask that other arrangements be made that would allow you and your client to converse in private?

Of course if the entire purpose of the gathering was to convince your client to plead out his case, instead of fighting it, I suppose it doesn't really matter that you violated your ethical duties.

Just for the heck of it

 Tattoos? I can take 'em or leave 'em.

The end of the ride?

I came across this item on my Google Reader app on my phone this morning:

Blawg Review #305 is hosted by a fool in the forest. Being the last waltz for Blawg Review, as it were, this is dedicated to all those who have hosted the carnival of law blogs during the past six years. Adieu.

I was stunned when I read it. I love the variety that Blawg Review brings each week. I've had the privilege of hosting the weekly blawg carnival twice and looked forward to doing so again in the near future.

Of course when I got back from my morning run and sat down to breakfast it dawned on my that today is April Fool's Day.

That was a good one, at least I hope it was.

And now a word from the kingmaker

What follows is from an open letter to the Texas Republican Party by Houston-area kingmaker and all-around wingnut, Dr. Steven Hotze...

Dear All,

Greetings! I am taking my stand with Norman Adams. He appears to be the lone voice of reason and common sense on the immigration issue.

I personally like the Hispanic people and their commitment to family and the work ethic. They are also a Christian based culture. I don't blame them for having made it to America by hook or crook. My great great grandfather pealed potatoes on a boat from Germany to get to America and the WASPs did not like him or the other immigrants that came with him. They also did not like the Irish or the Italians.

We had better embrace the Hispanics because they are going to be the dominant culture in Texas in no short order. I hope that Sen. Marco Rubio from Florida is our Republican VP in 2012.

Conservative Republicans from Texas helped elect 7 Hispanic Republicans to the Texas House. There were 2 Republican Hispanics elected to Congress from Texas. Why should we let the democrats steal them from our party?

It seems to me that there may be nativistic and prejudicial thinking on the immigration issue by many Caucasians. The argument is that millions of Hispanics broke the law to get here. Which one of you would not have done the same thng had you been in their shoes? I like people who take risks to help their families and are willing to work to better their families' lives. We have a whole lot of American born citizens who I would gladly trade in exchange for hard working Hispanics.

The majority of the Hispanic culture in America is Christian, pro-family, pro-life and pro-free enterprise. Sounds like they would make great Republicans to me. Let's go recruit them!

Gentlemen, it seems that the real problem we face is the Muslim immigration invasion of America. The Hispanics are our natural allies against the Democrats and Muslims.

With much appreciation, I remain, as always,

Sincerely yours,

Steven Hotze, MD

I hardly know where to begin. I will start off by saying that it is refreshing to hear a conservative speaking out in favor of immigration. Dr. Hotze is well aware that if his party "goes Arizona" here, they will lose the opportunity to build strong roots in the Hispanic community.

On the other hand, I am troubled by much of Dr. Hotze's commentary. Who are the citizens the good doctor would "gladly trade" for more folks from down south? Hmm. Not whites, I'm certain. Probably not Asians, either. That would leave African-Americans.

And let's not forget who our "real enemy" is. It's those folks from the Middle East that talk and dress funny. He can cast a net over the entire Hispanic diaspora as "good Christians" and then stereotype anyone who prays to Allah as the evil invaders.

And should I assume that Democrats and Muslims are the enemies of "right-thinking" conservatives? Haven't we had enough of the war metaphors for one lifetime, Doc? Does this mean that the judges who come to Dr. Hotze hat-in-hand must pledge fealty to the Republican cause and do battle against the good doctor's enemies? Just how many judges sitting on Harris County benches made such a blood oath in order to get the thumbs-up from Dr. Hotze?

It's hard enough for criminal defendants to get a fair shake in the courtroom as it is. How many more are starting squarely behind the 8-ball because of their faith?

Out of the mouths of unethical prosecutors?

Rule 3.07 Trial Publicity

(a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.
(b) A lawyer ordinarily will violate paragraph (a), and the likelihood of a violation increases if the adjudication is ongoing or imminent, by making an extrajudicial statement of the type referred to in that paragraph when the statement refers to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness; or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense; the existence or contents of any confession, admission, or statement given by a defendant or suspect; or that person's refusal or failure to make a statement;
(3) the performance, refusal to perform, or results of any examination or test; the refusal or failure of a person to allow or submit to an examination or test; or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or
(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.

The Texas Disciplinary Rules of Professional Conduct refer to conduct engaged in by attorneys during the course of representing a client (whether that client be a criminal defendant or the State of Texas). We are forbidden from making statements that we know, or should know, may prejudice one of the parties in a lawsuit.

"The DEA conducted a brilliant investigation and has stopped a dirty doctor and his cohorts from continuing to profit from the wretchedness of addiction." -- Harris County District Attorney Pat Lykos

Ms. Lykos was referring to Dr. Gerald Ratinov who was charged with running an illegal "pill mill" that dispensed pain killers.

Ms. Lykos represents the State of Texas, the party who is prosecuting Dr. Ratinov. Ms. Lykos made an extrajudicial (outside the courtroom) statement that brought Dr. Ratinov's character and reputation into question. That would appear to be a violation of Rule 3.07(b)(1).

Ms. Lykos' statement implied that Dr. Ratinov was guilty. Considering that Dr. Ratinov is charged with a felony that could result in his incarceration, that would appear to be a violation of Rule 3.07(b)(4).

Ms. Lykos has been in office for over two years now, she should be aware of the ethics rules governing what she can and cannot say about a pending criminal case. Ms. Lykos should be held accountable for violating those rules. Someone should file an ethics complaint. But, will anyone step up to the plate?

Maybe someone could schedule a meeting with Ms. Lykos. They could sit down and discuss the matter - and maybe become best friends by the end of the day. Maybe she'd even say she was wrong and that she wouldn't do it again. A group of defense attorneys could argue about whether filing an ethics complaint would be piling on poor Ms. Lykos. Maybe her new best friend could bring her to a meeting while the group is deciding what to do. Maybe that group might decide to do nothing because they don't want to piss off Ms. Lykos or her supporters.

On second thought, there's no way anything like that could happen. Is there?

Play ball!

There are some things in life that don't need to be changed because they're perfect just the way they are. Change is fine - if by changing it, you're making it better or more efficient. Change for the sake of change, on the other hand, is not so good (see the State Bar of Texas' attempt to ram changes in the ethics rules down our throats).

Today should be a holiday. Today should be a day that is held in reverence. Today is a day of rebirth and of dreams waiting to happen. Today is Opening Day!

The only problem is, today is not the first Monday in April. In fact, it's neither a Monday nor April.

And that's just plain wrong.

It's bad enough that the Astros are opening on the road because of this March Madness foolishness (by the time the final rolls around Monday night it won't be March anymore). But now the entire world is out of whack because Bud Selig - the moron who brought us interleague play and the wildcard - decided that the World Series shouldn't be played in November.

Well no shit, sir. But it was your idea of allowing teams that couldn't even win their own division to earn berths in the playoffs. Haven't you ever heard of doubleheaders? Schedule them a couple of times a year -- that'll kill off a couple of days of the season.

I want the flyover. I want folks parachuting into the ballpark. I want to see the entire rosters of both teams (plus coaches) lined up along the foul lines. I want to hear "Play ball!" for the first time this spring. But now I have a wait more than a week for the home opener (and, please, that's nowhere near as cool as the season opener). I want to sit outside the ballpark in the sun and crush peanuts and drink a Dr Pepper with my daughter as we celebrate the beginning of a new season.

But not on a Thursday.

Reasonable doubt?

Harris County (Texas) Commissioner Jerry Eversole (we might need to start calling him Teflon) walked out of the federal courthouse in Houston, Texas on Wednesday after a judge declared a hung jury.

Mr. Eversole was charged with accepting a bribe, conspiracy and filing false tax returns.

The feds alleged that Mr. Eversole had accepted bribes from real estate developer and personal friend Michael Surface. Mr. Eversole argued that any gifts that exchanged hands had nothing to do with county business and were private transactions between he and Mr. Surface.

After four days of deliberations, the jurors (once again) informed US District Court Judge David Hittner that they were deadlocked and that there were no expectations that they could come to a unanimous verdict. After receiving the note, Judge Hittner informed the jurors that if they could not reach a unanimous verdict another jury would have to be picked and all of the evidence would have to be presented again.

In other words, he asked the jurors to do their civil duty and save the feds some money.

His exhortation was to no avail as the jurors came back after some more deliberations without a unanimous verdict on any of the counts.

As to be expected, US Attorney John Pearson announced that los federales were prepared to tee it up again in their quest to convict Mr. Eversole.

In recent weeks both Scott Greenfield and Gideon have written about what beyond a reasonable doubt actually means. The jurors in Mr. Eversole's case heard the evidence. They went back in their little room, sat around a conference table and argued for some 18 hours about whether los federales had proven each and every element of their case beyond all reasonable doubt.

They were even castigated by a judge (and, in essence, were told they were wasting taxpayers' money if they couldn't come to a unanimous verdict) and went back and argued some more. Still they couldn't reach a unanimous decision on any of the four charges.

What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn't prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn't prove beyond all reasonable doubt?

I'm a (true) believer

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.

Texas Code of Judicial Conduct, Canon 3(b)(6)

Oh, Murray, Murray, Murray.

Don't speak so quickly. Have you forgotten that there was a Thirteenth Apostle (the Christian equivalent of George Best, I suppose)? I'm sure if we look long and hard enough that somewhere we'll find a testament written by some guy named Murray claiming to be that long lost apostle. Maybe that's who wrote the alleged Christian texts found in a Jordanian cave between 2005 and 2007.

(By the way, Murray, I liked the old layout better. I'm getting older and it hurts my eyes. There's always Google Reader, though.)

Another Houston colleague, Eric Davis, chimed in with a defense of Judge Clinton's using the bench as a pulpit. I understand what the judge gave as his motivation to offer "Jesus time" in lieu of community service. There are too many judges out there who just line up defendants and bring out on the chain for a mass plea (about how you'd expect the Rev. Sun Myung Moon to do it if he were a judge and not a huckster whatever he is). The problem though is that Judge Clinton was imposing a religious test in determining a person's sentence. And that, no matter how "divine" the intention, is just plain wrong.

Wiping out eight hours of community service in exchange for a person writing an essay about what it means to be on probation? Excellent idea. Discussing Jesus over coffee in exchange for wiping out the rest? Not so good.

This idea that having someone read a Christian self-help book will help them turn their lives around is fairly laughable when you stop to consider that some of history's greatest mass murderers were "God-fearing" men and that the Catholic Church conspired to cover up the world's largest child molestation ring. Just because you accept Jesus Christ as your savior or because you've completed a bunch of workbooks in Sunday school doesn't mean you're a saint. And, conversely, just because you're not a Christian (which I guess would be the majority of our fellow denizens of the earth), doesn't mean you're bad.

And just what is the message in Judge Clinton's book?

The origin of all problems–family, finances, career, relationships – can all be traced back to a single source: life-dominating sin. No human remedy can cure it. But everyone can find victory over sin in the Word of God.

Yes, you can also have victory over life-dominating sin, based on two biblical principles remarkable in their simplicity:

1. There is no human remedy for sin.
2. The only cure for sin is in Christ.

So, unless you subscribe to these principles, you can never achieve "victory over life-dominating sin." In other words, "I'm right and you're wrong."

Mark Bennett got it right when he looked at it from the perspective of the folks who didn't get offered the "I'm a Believer" discount. I don't think either of us is being alarmist when we ask whether the 4th, 5th or 6th Amendments are safe in Judge Clinton's courtroom.



This isn't a religious debate. I'm all for whatever people need to get through each day. I happen to prefer to lace up my running shoes and run around the neighborhood before the sun rises - but that ain't for everyone.

During the course of a meeting of the board of the Harris County Criminal Lawyers Association yesterday (called for the purpose of deciding what action, if any, to take regarding this incident), a member (who had spoken to Judge Clinton at the behest of the president) decided it would be a good idea to bring his new buddy, the judge, to the meeting.

And there he was, wearing a suit with a huge cross lapel pin. A true believer. The judge said he asked selected probationers if they were men of faith. He then asked if they were Christians. If he got the answers he was looking for, he offered them some "Jesus time" instead of community service. How could he not know that wasn't right?

In the end the leadership of HCCLA tucked its collective tail between its legs and decided not to do anything. Something about massaging the judge instead of stepping on him.

Said Stanley Schneider, past president of the Texas Criminal Defense Lawyers Association:

“I think this is a man that we really need to get behind. Anyone who wants to take the innovative, and trying to do something to help people in his courtroom to succeed in life, he’s someone we need to applaud.”

Dottie Griffith of the American Civil Liberties Union of Texas (who filed a complaint against Judge Clinton) had a slightly different take:

“The idea that a judge would use the power of the bench to coerce individuals appearing before him into accepting his religious beliefs offends the Constitution and should offend all Houstonians. If true, Judge Clinton’s actions are patently illegal.”

See also:

"Judge's sentence involving Christian book causes controversy," KHOU-TV (3/28/2011)
"Reading lesson for cons was Christian book," Houston Chronicle (3/29/2011)

Is this thing on?

Would you try a DWI case without a court reporter? What about an assault case? A dope case? A burglary case?

Would you even consider trying a case without a court reporter present?

That's what two legislators from Houston have in mind for the municipal courts in Houston. State Senator Joan Huffman and State Representative Beverly Woolley have filed bills (SB1879 and HB3807) that would allow the Houston Municipal Courts to conduct trials with a tape recorder taking the place of a court reporter.

What's the big deal, you might ask.

A court reporter can ask an attorney, the judge or a witness to repeat a question, an answer or a ruling from the bench. A tape recorder can't. (Take a look at an ALR hearing transcript and count the number of times the transcript says "unintelligible" for an answer.)

A court reporter can ask an attorney or a witness to speak slower or to speak louder. A tape recorder can't.

A court reporter can ask the attorneys, the judge or a witness not to talk over one another. A tape recorder can't.

A court reporter takes down everything that is said while "on the record." A tape recorder only records if it's turned on.

An attorney can obtain a transcript of a hearing by contacting the court reporter. If it's a recording -- you've got to go through the court.

An attorney or the judge can ask the court reporter to pull up specific testimony for review on a motion or for cross examination. No can do with the tape recorder. (Do you really think a municipal judge is going to play back an entire tape to get the answer to one or two questions on a motion for directed verdict?)

In the justice of the peace courts if you don't get a favorable decision your client can post an appeal bond and you get a fresh bite at the apple in county court. No such luck in municipal courts of record.

The purpose of these bills is to reduce the expense of running the municipal courthouse in Houston. It was the same rationale used to tell officers they could wait until 1pm to come to court even though the citizen accused of speeding had to appear at 8am.

Revenues are down because officers are writing fewer tickets and fewer cases are being cleared because it doesn't make sense to plead out a case if you don't know if the officer will appear after lunch. Now the city's taking aim at the due process rights of the accused by axing the court reporters.

I agree that it's only a Class C misdemeanor. But it was important enough for that motorist to hire an attorney to handle the case. In Texas, that motorist has the same rights to a trial by jury as does the man accused of capital murder.

Sacrificing due process to balance a budget is inexcusable.

Paper training for judges?

What is the proper response when you have evidence that a judge has violated the Constitution in the course of suspending someone's sentence?

How do you react when a judge asks a defendant entering a guilty plea whether or not he believes in Jesus?

Do you (a) send someone to have a private heart-to-heart with the judge, or (b) file an ethics complaint? Do you accept an explanation that the judge didn't realize he was doing anything wrong, or do you call bullshit based on the politics of the folks he keeps company with?

Is it even that big a deal? We are, after all, supposedly a Judeo-Christian nation. The Founding Fathers, however, were Deists who brought a whole different perspective to the dinner table than evangelical Christians.

If you launch a head-on assault on the judge, do you risk turning the Bible-thumping Teabaggers out in greater numbers to vote for judicial candidates with R's after their names? Or is it politics be damned, it's time to take a stand?

If we make a big stink about it, do we make it harder for any clients we may have who find themselves in that court? Or, do we stand for principle?

I will say this, I find it hard to believe in this day and age that a man could practice family law and then run for a criminal court bench without having a clue that religion has no place in the courtroom. The path to the Republican nomination in Harris County is to pander to the Christian right - and that means putting God "back" in government. That dynamic isn't going to change -- the nature of our political process means that candidates on the extreme fair better in party primaries than candidates in the mainstream; in the general election, however, both candidates move toward the middle and hope that no one was paying attention to the primary season.

If a judge knows that if he crosses the line all he'll get is a chat over coffee with a defense attorney, where's the harm? On the other hand, if a judge realizes he might get slapped with an ethics complaint, he, and his colleagues, will think twice.

Maybe this situation is touchy because no one wants to be seen as being opposed to religion. I think there are some folks out there who are afraid to confront a judge because they don't want the judge to take it out on their clients. Well, if that's the case, the judge will have future complaints on his plate for acting vindictively.

Futhermore, our very presence in the courtroom pisses off judges. Just think of how efficiently the docket would move if there weren't defense attorneys pushing for better deals and challenging the legality of police conduct. Without us mucking up the works, just imagine how many cases would plead out on the first setting in plenty of time to get a round in that afternoon.

It's a matter of principle, not expediency. If a judge is going to be so cavalier as to ignore the First Amendment's prohibition of state-sponsored religion, how's he going to treat the Fourth, Fifth and Sixth Amendments?

Just like that cute little puppy that left you a present in the living room; sometimes you have to stick his nose in it.

Closure?

It is our realization that we are mortal that sets us apart from the rest of the animal kingdom. As we grow up we see those around us die. The older we get, the more we are faced with our inevitable demise.

My grandmother is dying. I've know for years that we would reach this day at some point. It doesn't make it any easier, though.

She's had a series of health issues over the last few years - some more serious than others. She had to undergo surgery this past week. The after effects of invasive surgery are not kind to 93-year-olds. She's in the hospital, in pain and fighting off an infection.

I think of the things my grandmother saw throughout the course of her life and it never ceases to amaze me. Today we take the internet, satellite television, cell phones, air conditioning, indoor plumbing and air travel for granted. We sometimes forget that there once was a day when these things didn't exist. My grandmother witnessed World War II. She was around when the Soviets launched Sputnik and when Neil Armstrong landed on the moon.

My grandmother also got to see all four of her grandchildren grow up. She's had the pleasure of seeing her four great-grandchildren on a regular basis. She's lived a good life.

I received a call from my dad the other day. He wasn't optimistic and suggested I come up to Conroe because he wasn't sure how much longer she'd be around. I cleared my schedule, called my wife and we loaded the girls into the car and drove to the hospital. My grandmother was in pain from the surgery. She was being fed with a tube. Will that be the last time I see her alive? I don't know. Maybe she'll pull herself out of it and maybe she won't.

I love you, Grandmother.

Update:

A few hours after I wrote this I got a call from my mother telling me that my grandmother had been transferred from the hospital to a rehab center. Apparently she is, as she likes to say, as mean and ornery as ever.

Washington's latest assault on the Fourth Amendment

The existence of sobriety checkpoints on our roadways is an affront to the Fourth Amendment. The very notion that it's okay for the police to stop folks without cause simply because they are driving on the road should have all of us up in arms.

Of course it doesn't because most folks are lemmings who are more than happy to hand over their liberty in exchange for the "protection" of the state.

The Fourth Amendment says that the police can't arrest you without a warrant absent probable cause. Our courts managed to screw that up by proclaiming that the police can stop a person if the officer has reasonable suspicion to believe that criminal activity might be afoot. This lowering of the standard had led to police arresting motorists for driving while intoxicated even though they can't point to a single traffic violation as the basis for the stop.

Now the Constitution has never gotten in the way of our beloved senators and representatives in Washington. Quite a few senators are up in arms over a couple of apps available for your smartphone that will tip you off to the location of sobriety checkpoints. The senators called on Apple, Google and Research in Motion to remove the apps from the online stores.

As a result, if you own a BlackBerry, RIM sold you down the river. (But you can still get a game the glorifies Al Capone.)

PhantomALERT and Trapster will provide motorists with notices of nearby checkpoints as well as speedtraps and red light cameras.

"These applications are nothing more than a how-to guide in avoiding law enforcement and they provide drunk drivers with the tools they need to go undetected, putting innocent families and children at risk." Sen. Charles Schumer (D-NY) 

Hey, Chuck, since you took that oath to uphold the Constitution, you might want to revisit the presumption of innocence and the Fourth Amendment. It's not against the law to have a drink and then get behind the wheel of a car. It's against the law to do so if you've lost the normal use of your mental or physical faculties.

Sure, there will be drivers who are intoxicated that avoid a checkpoint thanks to their smartphone -- but there will be many more drivers who are able to avoid the assault on their civil liberties and privacy. Contrary to what Mr. Schumer and his ilk believe, we shouldn't be subjected to mandatory encounters with the police just because there are some folks out there breaking the law.

Preaching from the bench

"Do I ever have a deal for you. I know you don't have time to do all that community service you will be assigned as part of your probation -- so what would you say if I were to waive it in exchange for you reading something instead? Sounds pretty good, so far, doesn't it?


I'll tell you what. If you'll read this bible study book that I've written, I'll waive all of your community service hours. Sound like something you'd like to do? It's a whole lot more convenient than having to get up and go somewhere for some forced "volunteer" work, isn't it?


Hey, while we're at it, here, before you enter that plea, do you believe in Jesus?"

I'm sure that's not exactly how the talk goes when entering a plea in Harris County Criminal Court at Law No. 4,  but it is apparent that Judge John Clinton hasn't spent much time reviewing the Establishment Clause. It is also apparent that the judge either doesn't know, or doesn't care, that there are many religions around the world that don't exalt Jesus as the earthly embodiment of God. A trifling detail, I know.

I wrote about Judge Clinton when he was still candidate Clinton prior to last November's election. Judge Clinton is a retired police officer who was allowed to attend law school while working so long as he promised not to practice criminal law. He and his wife opened up a family law practice. That's his experience. At least the black-robed prosecutors judges who went directly from the DA's Office to the bench have experience in criminal law.

When asked why he was running for the bench, Judge Clinton replied:

This race is important because I see these as gateway courts. Often, young criminals make their first stop here. We have to make a firm impression on them. We must also protect the rights of both the accused and the victims. I think that often we look beyond the victims and what they are going through when crime enters their lives. These courts play a vital role in keeping our community safe and secure.

Excuse me, your Honor, the last time I checked, the Constitution laid out the rules that protect the citizen accused. The duty of the judge is to ensure that the accused's constitutional rights are protected from the time he is approached by the police until the time the case is resolved. It is the defendant who has the right to a fair trial and due process -- not the state and not the alleged victim.

That's right, until the state has proven beyond all reasonable doubt that a criminal act has taken place, there is no victim. There is a complaining witness or an alleged victim - but that's it. Using the word victim implies that one has already decided that a criminal act took place.

He then went on to say

I am the candidate with the practical experience and the perspective we need in this court. I will always look out for victims and protect the Constitution. These courts play a vital role in protecting our community. That's something I've been doing my entire adult life.

Judge, the role of the courts is not to protect the community. The role of the courts is to ensure that a person accused of a crime is afforded a fair trial and due process of law. Protecting the community is a task assigned to law enforcement agencies, not the men and women wearing black robes sitting behind an ornate raised desk.

While Judge Clinton is forcing his religious beliefs on the people in front of him, he might want to take a look at Matthew 7:1 --

Judge not, lest ye be judged.

Let's face it, when the only qualification for a judge is whether or not there's an R or a D after their name, we get exactly what we deserve.

A job well done

One of my Facebook friends posted the following comment on her wall the other day:

Okay, so in court today someone said, "the only person I've seen in court that is nasty as you are is Paul Kennedy." Now I wonder...was that a compliment or a slam?!

It's not our role as criminal defense attorneys to be liked in the courtroom. Respected? Yes. Liked? Nope. Our very presence is annoying to those who wish to take away our clients' liberty. How dare we stand up and challenge the state to prove each and every element of their case. How dare we stand up and challenge the legality of a stop, a seizure or a search. How dare we stand and challenge the rulings of the court. How dare we stand in the face of all the evidence pointing to our client's guilt and enter a plea of not guilty.

So, to the unnamed person who referred to me as nasty in court -- thank you. I take that as a compliment. It's means I'm doing everything I can to defend my clients.

The death machine keeps a-rollin' along

So Travis James Mullis will die. Mr. Mullis will be murdered by the State of Texas as the result of his conviction for stomping his 3-month-old to death along the Galveston seawall back in 2008.

But that won't bring back his 3-month-old son. It will satisfy our bloodlust and our need for revenge. It won't fill the holes in the lives of those involved. It will satisfy our desire to be seen as tough on crime. It won't change what happened that night. It will be notch on the belt of Jack Roady, the Galveston County District Attorney.

A jury found Mr. Mullis guilty of capital murder. There was no dispute that Mr. Mullis killed his son. The only issue was intent. Well, Mr. Mullis' videotaped confession to Philadelphia police made that a moot point as far as the jury was concerned.

Mr. Mullis was born into an unhealthy life. He was hospitalized for 71 days as an infant suffering from a disease that destroys the bowel. His mother was morbidly obese with a host of other medical conditions at the time of his birth. She died when he was 10 months old. Mr. Mullis was then adopted by his mother's half-brother.

As a child, Mr. Mullis was molested by his adoptive father until he reached the age of six. Mr. Mullis then turned to molesting young children while he was teenager. He was sent to the Jefferson School in Maryland (where he lived) until the age of 15 when he was discharged right about the same time the insurance benefits ran out.

None of this excuses what Mr. Mullis did on that January night over three years ago. It does make you wonder what was going on in his head that night, though.

In the end the State of Texas will murder a man -- but it won't change a thing.

Game theory, poker and trial strategy

When playing poker, is it better to bluff when you think your hand has a chance of winning or is it best to bluff when you think your hand stands no chance of winning?

In other words, do you shove your chips into the middle of the table with a pair of jacks or with nothing better than a ace-high?

According to game theory, the optimum bluffing strategy is to bluff when you have the weakest hand.

Chris "Jesus" Ferguson has a Ph.D. in computer science and relied on game 

theory in winning the 2000 World Series of Poker Main Event.

To see why, let's pretend we are playing one-card poker with a deck of an ace, a deuce and a trey (with the ace being the lowest card). When it's your turn to act you have the choice of betting or checking. Your opponent then has the choice of calling the bet, checking behind you or folding.

Logic dictates that you will alway bet when you have the trey. You know your opponent can't beat you because you have the highest card. If you don't bet and your opponent checks behind you, you win nothing. If you bet and your opponent folds then you win nothing. But, if you bet and your opponent calls the bet, you win his bet. The only way to make any money when holding a trey, then, is to bet first.

If you have the deuce there is an equal chance your opponent has a trey or an ace. If you bet with the deuce, you will win half the time and you will lose half the time. If you check with the deuce you are forced to fold your hand if your opponent bets. If your opponent holds the trey, he will bet. If he holds the ace, he will fold. The best play, then, if you hold the deuce is to check.

On the other hand, if you have an ace, you know you have the worst hand. If you don't bet, but your opponent bets you are forced to fold and lose nothing. If you bet and your opponent bets then you  lose the bet. But, if you bet and your opponent folds, then you win his bet.

Let's say, for instance, you hold the ace. Your opponent therefore holds either the trey or the deuce. If you bet and he holds the trey, your opponent will call your bet and win the hand. If you bet and he holds the deuce he will be forced to fold his hand because he can only beat a bluff. The best play, then, is to bet whenever you hold the ace - since the only way you can win the hand is if your opponent folds in the face of your bet.

By following this strategy you will win every time you hold the trey and half the time you hold either the deuce or the ace. Your opponent will be forced to fold whenever he holds the ace or deuce meaning you have a 2-to-1 chance of winning every hand when it's your turn to act first.

Whenever your opponent acts first and bets out you will call if you hold a trey or a deuce - since you can never win calling a bet with an ace. If your opponent checks you will bet if you hold an ace or a trey, since he can only call your bet if he has a trey.

Now that's all well and good, you say, but what on earth does that have to do with defending folks accused of committing crimes? Just imagine all of your cases could be sorted like cards. Some cases are strong, others are weak and the rest fall somewhere in the middle. What is the optimum strategy for defending these cases?

According to game theory you push the prosecutor to trial on your best cases. That forces the prosecutor to evaluate the case and should, in most instances, result in dismissals (or at the very least, reductions). But you already knew that.

What do you do with the bad cases and the cases that fall somewhere in the middle (the aces and deuces)? Based on our poker game example, you push the bad cases to trial as well and try to work out the rest. Why you might ask would you do such a thing?

You do it because it's the only way you're going to get a dismissal on the worst cases. If you push a case to trial then the prosecutors have to deal with witnesses, some of whom are reluctant or live out of town, and evidentiary issues. You never know what's going to happen. Maybe the prosecutor thinks twice about whether her case is a whale (a trey) or a dog (an ace).

You should win (or get dismissals) on your best cases. The only chance you have of winning your weak cases is to go to trial. If the case falls in the middle, however, you have to weigh the benefit or winning with the risk of losing. These are the "coin flip" cases that could go either way. These cases have to be "played for value."

If you think about it, you should already be doing this intuitively. We tell some clients their cases are slam dunks. We tell others that they have nothing to lose by going to trial. It's the ones in the middle that are the most difficult to handle.

***

For more information on Chris Ferguson, game theory and the World Series of Poker I recommend you check out Positively Fifth Street by James McManus.

Issue spotting

Here's your criminal law final for the semester. Who could you charge and what would you charge them with?

Artificial reality

Artificial turf in front of the Harris County Civil Courthouse. What a perfect metaphor for what happens in trial.

In trial an action is deconstructed before our very eyes and ears. That same action, or a reasonable facsimile, is then rebuilt through testimony and physical evidence. But few, if any, of the actors really know what happened. Memories fade. We speculate. We look for patterns that we can plug what we see and hear into to try and make sense of it.

If you ever speak to artificial intelligence gurus they will tell you that the key to building a more intelligent machine is to develop pattern recognition algorithms so that the machine can make assumptions based upon the context of the information fed to it. That's how our brains work. We see part of a picture or part of a word and we fill in the blanks based on the context. Most of the time we're right -- but sometimes we're wrong.

Witnesses "refresh" their memories by reviewing documents prepared by someone else sometime after the events occurred. They testify in absolutes. Let's face it, most of us don't remember what we had for dinner two or three nights ago -- but witnesses will testify as to exactly what happened one night over a year ago based upon a casual glance.

The attorneys have an agenda. We ask questions that we know will give us the answers we need to fit into our theory of the case. We don't want a witness rambling on about what they saw, heard or thought they saw or heard.

We take the raw earth and we construct our own structure atop it. A structure that may or may not bear any semblance to reality. We then expect six or twelve folks plucked off the street to make sense of what happened and render a judgment as to who's at fault or who acted badly.

What happened on the night may be fact. But what we see and hear in the courtroom is anything but.

Still a bad idea -- even with a fancy name

Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?

Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:

Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.

Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.

In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.

The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.

Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.

Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.

That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.

We should never do anything to lessen that burden. That could be you on the other side of the v. one day.

At what point does a budget crisis morph into a constitutional crisis?

According to an article in this week's Texas Lawyer, the bickering between Demopublicans and Republicrats over funding the federal government has put a stop to the payment of vouchers for attorneys taking appointments in federal court.

"Notices prominently displayed on the websites for the Northern District of Texas and the Western District of Texas let lawyers know that the two-week continuing resolution President Barack Obama signed into law extends federal funding until March 18, 2011, but it only provides enough funding to pay for vouchers that were processed but not paid during a recent suspension. 

The government will be unable to pay vouchers received after March 7, 2011. the notices on the Northern and Western Districts state that 'all vouchers that are submitted will be paid when funding is available.'"

At what point does this funding crisis infringe upon an indigent defendant's right to appointed counsel? At what point to private attorneys decide not to take on new federal appointments because of the uncertainty of getting paid?

"There is no doubt in my mind that this development will discourage criminal defense attorneys from accepting criminal appointments in the federal justice system going forward. We have overhead, we have staff, we have rent, we have families, we have health insurance, and to ask a private practitioner to forgo payments for services rendered for an indefinite period of time is untenable." -- David Finn, Dallas criminal defense attorney

The federal courts rely on private attorneys to take on cases so that the federal public defenders aren't swamped with too many cases. Without private attorneys willing to take on federal appointments, los federales would have to increase the number of public defenders -- something that is more costly than doling out cases to private attorneys.

Of course it doesn't help that there is no effective lobby for indigent defendants across this country. My guess is that, give a choice, most Americans would cut back on funding for indigent defense before cutting back on any programs near and dear to their hearts.

But this isn't just politics as usual. We're talking about our Sixth Amendment right to counsel - a right that belongs to all of us, regardless of our economic or social status.

Go big, or go to the big house

While 16 employees of the City of Houston's public works department face criminal prosecution for allegedly stealing copper, brass and other scrap metal from city work sites, a handful of state legislators have profited handsomely from windstorm insurance fees and commissions.

The city workers allegedly took scrap metal from work sites, in city-owned trucks, and sold it at area scrap yards. If the allegations are true, those workers defrauded the citizens and taxpayers of Houston by siphoning away revenue that could have been used to fund city services.

The state legislators, who oversaw the insurance industry in the state, made their money either by selling windstorm insurance to homeowners or through litigation over damage due to Hurricane Ike. The vice-chair of the House Insurance Committee, Craig Eiland (D-Galveston) picked up $627,000 in legal fees as the result of a class-action suit filed by homeowners who lost everything. The head of the joint committee overseeing windstorm insurance, Larry Taylor (R-Friendswood) made $390,000 in commissions for selling windstorm policies between 2006 and 2010. Todd Hunder (R-Corpus Christi) who used to be a lobbyist for the windstorm insurance industry made $65,000 mediating windstorm cases and another $8,750 for other cases.

The city workers will be prosecuted. The legislators will be wined and dined by lobbyists. The city workers face jail time. The legislators will attend fundraisers. The city workers thought they could game the "system" - they were wrong. The legislators thought they could game the system - they were right.