Another attempt to microblog

I am set to try a DWI case on October 1, 2008.  My client was involved in an accident with a motorcyclist and was subsequently arrested for DWI. I will be blogging updates during breaks in the trial on Twitter.  You can follow the trial by scrolling down to Twitter Updates on the right side of the blog.

Ten things you need to know about DWI

1.    You have the right to refuse to perform 
roadside sobriety tests.

2.    You have the right to refuse the breath test.

3.    You have the right to an independent blood 
test within 2 hours of taking a breath test.

4.    You have the right not to answer any 
questions.

5.    If you are arrested for DWI, you have 15 days 
to appeal the suspension of your Texas 
Driver's License.

6.    If the roadside sobriety tests are not 
administered in strict compliance with NHTSA 
guidelines, the validity of the test results is 
compromised.

7.    The police officer administering the breath test 
has no knowledge of the (pseudo)scientific 
principles behind the breath test machine.

8.    It may take up to 2 hours for the alcohol you 
consumed to make its way into your 
bloodstream.

9.    If the police didn't have a valid reason to stop 
you, all evidence gathered after the stop may 
be inadmissible in court.

10.  You need an experienced DWI attorney who 
knows the law and who knows the tests, to 
represent you.

Have you been drinking?

I'm asked all the time whether someone should tell the truth if a cop asks them how much they had to drink.  My answer is always the same -- you're in trouble no matter how you answer it. It's a trick question.  The officer might as well ask you when you stopped kicking your dog.  By the time an officer asks you how much you had to drink, he's already made up his mind that you've been drinking.  He's now in the process of gathering evidence to use against you.

If you tell him that you haven't been drinking (he's already smelled the odor of an alcoholic beverage), he knows you're lying.  You can give him the standard answer of a couple of beers (regardless of how much you drank) which he will note as an admission of drinking.  Finally, if you give him an honest answer the DA and the cop will focus on the amount you admitted to drinking -- not over how long a period or what you had to eat during that time.

The only correct answer is to refuse to answer any questions until you're able to speak to an attorney.  

If you find yourself charged with DWI, call my office so we can start working to save your driver's license.

A couple of random thoughts

The Detroit Police Crime Lab has been shuttered after the Michigan State Police exposed serious problems with the firearms lab.  Detroit's lab is not the first to be shut down and won't be the last. The fundamental problems facing police-sponsored crime labs are the same from city to city and state to state.  These crime labs aren't meant to carry out fact-finding missions; as arms of the police department, the role of these labs is to produce evidence that can be used to convict citizens for criminal acts.  As such, once a suspect is in custody there is pressure to produce evidence that will lead to his conviction.  This means that any uncertainties that might result from the analysis are not resolved in the accused's favor.  Could this be why when a third party conducts an audit the error rates in police-sponsored crime labs fall outside the norm of acceptable lab work?

This past week the Harris County Commissioner's Court met to discuss a proposed public defender office in Harris County.  Complaints about the expense of the current appointment system and favoritism are being used as justification for the office.  However, the public defender office would be under the control of Commissioner's Court which means the attorneys working in the office would be serving two masters: their clients, the defendants, and the State - the same State that would be trying to restrict the freedom and liberty of their clients.  The State can, thus, pressure public defenders to plead out their cases by threatening to reduce funding and increase case loads.  The better option may be to create an Office of Indigent Defense and have that office manage a wheel system that assigns attorneys randomly to represent those citizens who the courts determine are indigent.  This would, at least, take the power to appoint attorneys out of the hands of the judges.

Calling their bluff

If you followed my blogging on Twitter this morning, you know that I was set for trial in a domestic assault case in Harris County. Due to the large number of people still without power, no jury panels are being called this week.

Ordinarily that would be a good thing -- pushing judgment day off another month or so is always good for the client. However, in this case my client was being held on a "blue" warrant as he was on parole, and we wanted to resolve this matter as quickly as possible.

I knew that the state had yet to serve a subpoena on the reluctant complaining witness who had already completed an affidavit of non-prosecution and had told the DA's office she did not wish to see my client prosecuted for the alleged assault.

We decided to call the prosecutor's bluff. When the judge called the trial docket I announced ready. The judge asked me to approach and he told me there were no jury panels being called. I informed the judge that we were ready to try the case to the bench.

When the prosecutor arrived he told me he didn't know when we would actually try the case because he didn't believe that panels would be called next week. I told him we were ready to proceed with a bench trial at which point he told me he had a right to a jury trial and wanted to try it before a jury.

Then I told him that not only was his complaining witness not cooperating with the investigation but that his office had failed to serve her with a subpoena. He insisted they had. Having spoken with the complaining witness on Monday, I knew she hadn't been served.

The prosecutor went to speak with his investigator. Ten minutes later he returned and told me he was dumping the case.

This case was won because we called the prosecutor's bluff and didn't reveal our hole card until the right moment.

The Bush legacy

Last year George W. Bush vetoed a bill increasing spending on health care for the poor by $7 billion because, according to W, we couldn't afford it.

But this year, within the past month, Bush is looking at spending $85 billion to bail out AIG, at least $200 billion to bail out Fannie Mae and Freddie Mac, $29 billion to bail out Bear Stearns and upwards of $700 billion for a bailout of securities backed by bad debt.

Treasury Secretary Henry Paulson, who two weeks ago stated that the economic crisis was under control, is asking Congress to appropriate the money immediately rather than debate the merits of the plan.  Under his watch the crisis boiled over into a complete meltdown, yet he wants to exercise complete control over the kitty.

The mortgage industry sold the public on adjustable rate teaser mortgages, interest-only mortgages, second mortgages to pay the down payment and home-equity lines of credit. Investors bought bonds secured by these debts -- fully aware of the risks involved.  And now the Bush administration is coming to their aid -- while it has ignored calls from the working poor to raise the minimum wage, make health insurance affordable, improve our schools and make the dream of home ownership a reality for more Americans.

We are witnessing the largest transfer of wealth from the poor to the wealthy that has ever been seen in the history of the world.  That's what compassionate conservatism is all about -- bailing out your campaign contributors and country club friends.

Math, DWI style

Just how precise is that breath machine at the police station?  That's the question you should ask yourself before you agree to provide a breath sample should you be arrested for suspicion of DWI.

According to the Texas DWI statute, a person is considered intoxicated if his alcohol concentration is .08 or higher.  The state has dictated that if a person has .08 grams or more of alcohol per 210 liters of breath, that person is per se intoxicated.

The state's breath test machine does not measure 210 liters of breath.  The machine measures about 81 cubic centimeters of a person's breath in a sample chamber that's about 11 inches long and 1/2 inch in diameter (about one-third the size of a coke can).  210 liters, on the other hand, is about 55 gallons -- the size of a used oil barrel or a nice smoker.

A packet of sugar at a restaurant contains one gram.  To get an idea of what the law defines as an illegal alcohol concentration, pour 1/12 of that packet of sugar into a 55 gallon drum filled with water.

By the way, average total lung capacity is 5.8 liters.

Since we are in Texas and use ounces, one ounce is equal to a little more than 28 grams.

It would take approximately 2500 sample chambers from the state's breath test machine to equal 210 liters.

So, to determine how much alcohol is being measured in the sample chamber for a person who blows a .08, we take .08 grams and divide by 28.  That gives us .0028 ounces of alcohol.  Then we divide that by 2500 to determine how much alcohol is in the sample chamber.  The answer is .000001.  That's 1/one-millionth of an ounce of alcohol.

If you believe that the state's breath test machine is capable of making such a precise measurement, consider this -- the machine is serviced no more than once a month, the state's technical supervisor conducts a visual inspection of the sample chamber and the machine is kept (usually) in a beat-up wooden cabinet in an unsterile environment.

You have the right to refuse to submit to a breath test.  It's in your best interest to exercise that right.

If you've been charged with driving while intoxicated, contact my office and remember -- don't blow it!

Harris County's lack of humanity

Harris County had the opportunity to do the right thing this week for its citizens accused of violating the law. While the Harris County Criminal (In)Justice Center was closed on Monday and Tuesday and all court appearances were automatically reset, there was no such empathy the reset of the week.

Half the county is still living without electricity due to Ike and are forced to stand in line for water, ice and food. Children are unable to go to school and many of our fellow citizens are unable to work. Gasoline has become a precious commodity. Given these circumstances, the decent thing would have been to reset all cases this week so that all of us (don't forget we are ALL presumed innocent) can get our lives under control.

But what did Harris County decide to do? The county decided that everyone out on bond with a court setting on Wednesday, today or tomorrow, had to appear in court. Our fellow citizens were forced to use precious fuel and time that could best be used to support their families so that they could sit in a courthouse.

You can find out a lot about the character of a person by watching how they deal with a crisis. You can also find out a lot about the lack of character of people by watching how they deal with a crisis.

On this note the people in charge of the criminal (in)justice systems in Harris and Galveston Counties showed their lack of character.

Sound off regarding the inmates at the Galveston County Jail

If you, too, are disgusted at the callous disregard Galveston County Judge James D. Yarbrough showed our fellow citizens being held in the Galveston County Jail, let him know. These men and women are being held in a fetid swamp with no air conditioning, no water and nonfunctioning toilets on an island that the mayor urged everyone remaining to evacuate.

Local officials are now blaming the feds for the lack of generators at the jail -- anything to deflect attention from their indefensible decision not to evacuate.

Judge Yarbrough's email address is James.Yarbrough@co.galveston.tx.us.

My hurricane story

As of tonight we still have no power at our house in Spring Branch, however, my in-laws, who live in a seniors complex, have power and extended an offer for my wife, two girls and I to stay with them for the time being.

We lost power at around 11:30 pm Friday. I fell asleep before the full force of Ike made itself known. I woke up during the night and cannot even begin to describe the sound of 100 mph winds whipping around a house. We were very lucky as our house sustained no damage -- our back patio cover even survived.

On Saturday we surveyed the damage in the neighborhood and were struck by how fortunate we were, even without lights and air conditioning. The devastation less than half a mile from our house was unbelievable. Fifty-year-old oak trees were strewn all over the place. That night we got together with our neighbors and had a BBQ. Some supplied grills, some supplied meat and some supplied drinks and dessert. It was the kind of block party you would have seen years ago -- before the advent of cable TV.

Sunday was a rainy, miserable day. It became apparent that we couldn't access our cell network and we were reduced to texting -- if the messages would even go through. We knew we would have to do something soon as the conditions were becoming untenable for our one-year-old. Luckily, as I was driving around trying to locate a signal to make phone calls, I got ahold of my mother-in-law and she told me they had both power and water. I hurried back to the house, told my wife and began packing.

We hauled all the food out of our refrigerator and freezer and stuffed into a cooler. We grabbed a couple of changes of clothes and some toys for our girls and made the drive out to the west side of Houston. While the air conditioning was wonderful, what I appreciated most was being able to read after dark. I don't know if I have ever been so grateful as I was yesterday.

This morning I was able to pay my parents back (a little bit) for everything they've done for me. My grandmother, who is infirm, went to stay with my parents during the storm. They lost their power and were told it might be three weeks before it could be restored. Thanks to Jennifer Kahn, a colleague and member of the Harris County Criminal Lawyers Association, I was able to find a generator for my parents. I will be forever grateful to Ms. Kahn for her kindness and generosity.

For now we are in a state of flux. I have two cases set for trial next week and have no way of accessing my files as my office building is padlocked. I have no clue as to when my next paying client will call the office. I have no idea when we will be able to move back into our house.

I want to thank all of the people, National Guardsman, police officers, fire fighters and ordinary citizens who have been handing out ice, water and food at the various distribution centers in and around Houston. I have seen things the last few days that I never thought I would see in the fourth largest city in the United States, but I have also seen a spirit than can never be extinguished.

I wish to extend my best wishes for a safe return, both to home and to normalcy, for all of the people affected by Hurrican Ike along the Gulf Coast and to express my condolences to all who have lost any family members, loved ones or friends.

But, before I end, I must express my anger and disgust at the manner in which Galveston County authorities treated the people held in the Galveston County Jail. While local, state and national officials warned people that staying on the island was a deadly choice, Galveston County refused to evacuate prisoners to safer ground. I have a client, arrested for domestic assault, who was forced to ride out Hurricane Ike in the Galveston County Jail.

Now I've spent my entire life in Texas and I was taught that a man should never lay his hands on a woman, but domestic assault is not a capital offense -- and neither are possession, DWI or theft -- and it was wrong that my client faced a potential death sentence due to the callous indifference of Galveston County.

If you are reading this blog, and are equally outraged, please let Galveston County know of your disgust for their (in)actions.

Significant decisions by the Courts of Appeal, August 2008

Honking your horn too loudly could give rise to reasonable suspicion

In Rogers v. State (No. 2-06-345-CR), the Fort Worth Court of Appeals held that the act of honking one's horn loudly and continually while screaming and making wild gestures gives an officer reasonable suspicion to initiate a traffic stop.

At approximately 2:30am on March 4, 2006, Sgt. Kelly Velder of the Arlington Police Department heard a car horn repeatedly blowing for up to 15 seconds at a time, and he saw the driver leaning into the steering wheel, shouting and gesturing wildly at an intersection.  He detained the driver and, after conducting his investigation, arrested her on suspicion of DWI.  

The Court held that making unreasonable noise in a public place was disorderly conduct and gave the police reasonable suspicion to conduct a temporary investigative detention.

A prescription drug and its metabolites are dangerous drugs

In Harkins v. State (No. 2-06-412-CR), the Fort Worth Court of Appeals held that a drug that may only be dispensed with a prescription meets the statutory definition of a dangerous drug.

On March 25, 2006, a concerned citizen called 911 to report that the defendant was driving erratically.  A blood test revealed soma and its metabolite in her system.  Ms. Harkins was charged with DWI -- caused by a dangerous drug.  At trial, the defendant argued that her impairment was not caused by soma but was caused by physical ailments and drowsiness due to sleep apnea.

The defendant argued that the metabolite of soma was not a dangerous drug by the statutory definition, but the Court held that since soma could only be dispensed by prescription, its metabolite was also a dangerous drug.

Putting another motorist in actual danger can give rise to a finding that a car was used as a deadly weapon

In Woodall v. State (03-05-00850-CR), the Austin Court of Appeals held that there must be evidence that another person (or persons) were actually in danger to uphold a finding that a vehicle was used as a deadly weapon.

On February 8, 2003, another driver  witnessed the defendant driving erratically.  The witness saw the defendant hit a barrel divider, almost hit the witness' car and then swerved, hit the curb on multiple occasions and kept driving. The witness followed the defendant to a restaurant and reported what he saw to Officer Mitchell.  The officer approached the defendant and asked him some questions.  He then went outside and looked at the defendant's vehicle -- seeing scratches that seemed consistent with hitting a barrel divider.  Officer Mitchell administered field sobriety tests and arrested defendant on suspicion of DWI.

A jury convicted the defendant of felony DWI and found that he was using his vehicle as a deadly weapon.

Section 1.07(a)(17)(B) of the Texas Penal Code defines deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."  The Court held that as the defendant almost hit the witness that the witness was in actual danger at the time the defendant was driving.

Failing to maintain a single lane by itself is insufficient to warrant a traffic stop

In Fowler v. State (No. 2-06-06183-CR), the Fort Worth Court of Appeals held that a driver's failure to maintain a single lane absent evidence that it was unsafe to do so is insufficient to give an officer reasonable suspicion to detain the driver.

The Court also held that reasonable suspicion cannot be based on an officer's mistaken understanding of traffic laws.  Section 545.060(a) states that a driver shall drive within a single lane and may not move from that lane unless the movement can be made safely.  As the officer failed to produce any evidence that the defendant's movements were not made safely, there was no traffic code violation.

The Court did say that the failure to maintain a single lane when coupled with a driver's leaving a bar, driving into oncoming traffic or weaving over an extended period of time would, however, give an officer reasonable suspicion.

Weaving into oncoming traffic, however, is 

In Keenan v. State (No. 06-08-00086), the Texarkana Court of Appeals held that failing to maintain a single lane and swerving into oncoming traffic did give rise to reasonable suspicion.

Update: Stay of execution granted in Hood case

The Texas Court of Criminal Appeals has stayed the scheduled execution of Charles Dean Hood. The Court's decision was not based on the deposition testimony confirming the sexual relationship between retired Judge Verla Sue Holland and former Collin County DA Tom O'Connell, but, instead, on the question of whether or not the jury was given a proper instruction regarding mitigation during the sentencing phase.

Grits for Breakfast has a transcript of an e-mail sent from Mr. Hood's lawyers detailing the admissions of Ms. Holland and Mr. O'Connell. Those admissions were the first confirmation from the two former lovebirds that anything out of sorts had been going on during Mr. Hood's trial. Both admitted to the affair and to their failure to inform Mr. Hood, or his attorneys, about the affair.

Update: Depositions ordered in Hood case

State District Judge Greg Brewer has ordered retired Judge Verla Sue Holland and former Collin County D.A. Tom O'Connell to testify under oath regarding their alleged affair while Charles Dean Hood's case was being tried.

Mr. O'Connell was deposed by attorneys representing Mr. Hood for two hours on Monday evening. He refused to comment after leaving the courthouse following his deposition. Judge Holland is scheduled to be deposed on Tuesday morning.

Earlier in the day, Judge Holland's attorney, Bill Boyd, sought to have the case moved to federal court under the theory that Mr. Hood was pursuing a civil rights claim. Mr. Hood's attorneys argued that the matter before the state court was a preliminary matter and that there was no federal jurisdiction over the case.

U.S. District Judge Richard Schell agreed with Mr. Hood's attorneys and ordered the case back to state court.

Mr. Boyd seemed more upset that Mr. Hood's attorneys moved for depositions 18 years after the trial in which Mr. Hood was convicted, than he was in whether or not Judge Holland was sleeping with Mr. O'Connell at the time of Mr. Hood's trial.

Gov. Perry has yet to make a decision on Mr. Hood's request for a reprieve from the executioner.

In a related development (for a story that just seems to get more bizarre each passing day) an assistant attorney general who used to represent Judge Holland, has filed a grievance against Attorney General Greg Abbott just days after Mr. Abbott sent a letter to the Collin County District Attorney urging him to look into the allegations of the affair between Judge Holland and Mr. O'Connell.

The Hood saga takes another turn

The hearing set for today in the Charles Dean Hood saga was cancelled after Mr. Bill Boyd, the attorney for retired Judge Verla Sue Holland, requested that the matter be transferred to federal court.

Mr. Hood's attorneys have filed an application for a writ of habeas corpus and a motion for a stay of execution.

Interestingly enough, the Texas Defender Service released a press release showing that, during her time on the Court of Criminal Appeals, Judge Holland recused herself from 78.6% of the cases that came from Collin County.

Mr. Hood's execution is scheduled for Wednesday. The question of whether or not Mr. Hood lives or dies is now up to Gov. Rick Perry, who has been urged by Texas Attorney General Greg Abbott to issue the stay. Mr. Abbott sent a letter to Mr. John Roach, the current Collin County District Attorney, stating his belief that the issues regarding the alleged affair between Judge Holland and Tom O'Connell "warrant thorough review."

Mr. Abbott also wrote that "if the execution proceeds as scheduled, before questions about the fairness of [Hood's] trial are legally resolved, neither the victims nor justice will be served."

It's time for the governor to do the right thing.

Pseudo-science and the breath test

According to the DWI statute, a person is intoxicated if they have an alcohol concentration 0f .08 at the time of driving. The alcohol concentration can be measured one of three ways -- by breath, by blood or by urine. If measured by urine, the limit is .08 grams per 67 liters of urine. If measured by blood, the limit is .08 grams per 100 mL of blood. Finally, if measured by breath, the limit is .08 grams per 210 liters of breath.

According to the statute, these three methods of determining alcohol concentration are identical (and that is the last we will speak about urine). If the concentration measured by blood and by breath are the same, that means for every 1 part of blood in your body you have 2100 parts of breath. This is also known as the partition ratio.

The problem is, no one runs a test to determine what the partition ratio is for the citizen accused of driving while intoxicated. There is, in fact, no scientific evidence to support the 2100:1 assumption. Estimates of actual partition ratios vary from 1100:1 to 3400:1! If a person's actual partition ratio is higher than 2100:1, the Intoxi-liar will overestimate his breath alcohol concentration.

This lack of a scientific standard could also lead to a very troubling result -- it is possible for a person to have an alcohol concentration of under .08 by one method of testing but have an alcohol concentration of over .08 by the other method! All the more reason you should NEVER submit a breath sample if you've been arrested for DWI.

Burping, belching or regurgitating prior to blowing in the Intoxi-liar may also produce a false reading due to the presence of mouth alcohol in the sample. The "slope detector" in the machine is supposed to prevent mouth alcohol from producing an inaccurate result -- but if the slope detector program is so reliable, why are breath test operators instructed to keep the test subject in their "continual presence" for 15 minutes prior to the test? Other sources of mouth alcohol are pockets around the base of the teeth due to gum disease and bits of food stuck between teeth or in dental work.

If you've been arrested for DWI, whatever you do, DON'T BLOW IT!

More on the RNC

Here's a heartwarming piece on how the RNC has embraced freedom of speech.

Update on Charles Dean Hood

Finally someone in Collin County has come to their senses. State District Judge Greg Brewer has moved Hood's hearing date from September 12, 2008 (two days after his scheduled execution) to September 8, 2008. At that hearing Judge Brewer will decide whether to order the depositions of Judge Holland and Tom O'Connell.

Grits for Breakfast had this to say about the latest developments.

Justice, Collin County style

In 1990, Charles Dean Hood was convicted for the murders of Ronald Williamson, his boss, and Tracie Wallace, Williamson's girlfriend. Hood's bloody fingerprints were found at the crime scene (on garbage bags and documents) and the two victims had been shot at close range.

It appeared that the trial would be a slam dunk conviction for Collin County DA Tom O'Connell who decided to try the case himself. Actually it would be more than a slam dunk.

The presiding judge of the 296th Judicial District Court, Verla Sue Holland, was involved in a long-running romantic relationship with O'Connell. Yet, despite the clear conflict of interest, neither disclosed their relationship to Mr. Hood or to his attorney, David Haynes.

Although rumors about the relationship ran rampant through the Collin County courthouse, Mr. Haynes didn't think the issue could be raised at trial absent proof.

Mr. Hood was scheduled to be murdered by the State of Texas on June 17, 2008 but prison officials aborted it when it became clear they could not carry out the sentence prior to midnight.

After securing an affidavit from a former prosecutor in the Collin County DA's Office acknowledging the relationship between O'Connell and Holland, Hood's attorneys filed an appeal alleging the affair prevented Mr. Hood from receiving a fair and impartial trial before Judge Holland.

The State of Texas stayed the execution and rescheduled it for September 10, 2008. At the same time, Mr. Hood's attorneys sought civil relief in the 199th Judicial District Court of Collin County. His attorneys asked Judge Robert Dry to determine whether the conduct of Holland and O'Connell during Hood's trial was ethical.

Judge Dry scheduled a hearing on the civil matter for September 12, 2008 -- too late to afford any relief to Mr. Hood.

To date, Judge Holland has refused to comment on the allegations she was sleeping with the prosecutor during Hood's trial. She said it would be "unethical" for her to comment on a pending case, even though the Texas Constitution says that the judiciary must avoid any appearance of impropriety and must hold itself to exacting standards in order to avoid a loss of public confidence.

The Collin County DA's office has also refused to comment on the allegations.

Judge Holland left her bench in Collin County and served on the Court of Criminal Appeals in the mid-1990's. Since then, Court of Criminal Appeals has refused to force Holland to answer any questions regarding the affair.

Although it was not Judge Holland who convicted (and condemned) Mr. Hood - that was the job of 12 citizens of Collin County, she ruled on motions, objections and proposed charges during the course of the trial.

To that end, the 500-member Association of Professional Responsibility Lawyers and dozens of legal ethicists have called Hood's conviction into question and 22 former federal and state judges from Texas and the rest of the country have called on Governor Perry to grant Mr. Hood a reprieve.

Charles Dean Hood may very well be guilty of the murders but there is this little notion of due process that the courts should (at the very least) pay attention to every now and then. This is one of those times.

Update on the RNC

While the republicans were talking of the dawning of a new day in America, here's the reality of their vision.

Update on Judge Samuel Kent

Last week in this blog I mentioned the historic indictment of federal Judge Samuel Kent on charges involving abusive sexual conduct. Today Judge Kent entered a federal courtroom -- as a defendant, not as a judge -- and informed the bench that he was "absolutely, unequivocally not guilty" and that he "look[ed] very much forward to a trial on the merits of what [he] consider[ed] flagrant, scurrilous charges."

Although there may be a problem (for the federales) with at least one charge that may be time-barred, the government has continued its investigation into the judge's financial and sexual behavior.

Shameless self-promotion

I'm featured in the Technology section of the September 2008 issue of the Texas Bar Journal.

DWI = murder?

As I wrote about last week, Harris County has begun criminalizing automobile accidents.  Now the Dallas County DA's office has filed murder charges against an alleged drunk driver who fled from police and crashed into an SUV, killing a newlywed couple.  It is believed to the first time a DWI case has been pursued as a murder case in Dallas County.

The price of poker is rising and, if you are charged with DWI, you could face prison time.

So much for the First Amendment

Cheap Trick sang about them two decades ago -- the Dream Police have invaded the Twin Cities. This past weekend, while everyone else was focused on Gustav and his assault on Nawlins, the Minneapolis police cracked down on anyone who had the gall to challenge the Bush/McCain illusion of America. Is this a glimpse into the crystal ball of how McCain intends to prevent 9/11 from happening again?

Media with Conscience reports that the FBI-led Minneapolis Joint Task Force on Terrorism recruited informants to report on the activities of leftist groups in the area. The Minneapolis police and the FBI-led task force conducted pre-emptive assaults on groups exercising their right of free speech.

The Michigan Messenger reports that Ramsey county sheriff's officers conducted an armed raid at a St. Paul convergence space and handcuffed hundreds as they watched movies and ate a pot-luck dinner. Officers defended their actions by claiming they had search warrants -- though no one was allowed to see the warrants.

Despite the authoritarian tactics employed by the local police and the FBI, protesters turned out en masse on the opening day of the RNC.

The strength of this nation comes, not from our similarities, but from our wildly divergent origins, paths, views and philosophies. The United State's isn't a melting pot where disparate elements are melded together -- we are a pot of jambalaya, a rich stew made all the better by the mulitude of tastes.

Is a Public Defender's Office the answer?

For those of ya'll clamoring for a public defender's office here in Harris County, take a look at the first blog entry from two former Dallas County PD's, Mike Howard and David Woodruff, who resigned and started up their own firm:

On my first day at the Dallas County Public Defender’s Office I knew I had found my place. I am one of those idealists who went to law school looking to help people. And not just anybody, but the people who most people don’t care about helping. The poor...the uneducated...the outsiders. And you can’t find a group more outside mainstream American society than people charged with breaking the law. I jumped right into my job and loved it. I blogged about it for a while until that became hazardous to my job. But all in all things were great. I had the job of a lifetime -where I’d retire someday.

A while back the county commissioners’ court started making life difficult for the PDs for seemingly no reason. We had always been required to keep monthly stats on our docket (number of cases appointed, pending cases, cases disposed by trial, plea, revocation, et cetera) and that was okay. But then the commissioners wanted weekly stats. Why? Who knows. I mean all you have to do is divide our monthly
stats by four and you have a pretty good idea what we did on a weekly basis. And because they wanted them in different formats, it meant keeping two sets of stats. And then they wanted us to use an absolutely worthless case management program. So with stats and the new program, every time I did anything, it took about three times as long as it should. When you add that on top of the legendary heavy caseload a PD juggles, it’s a recipe for disaster.

And that brings us to the caseload. Until a few months ago, there was no written rule about how many cases we had to carry. But supposedly some people weren’t carrying their weight. But instead of addressing those specific problems (if there were problem people not carrying their weight the commissioners would’ve known just who they were based on the various stats they kept), they upped the number of cases we all had to take. First it was 30 new cases a month for felony attorneys. Then 35. Then 40. 40! 40 felonies a month. And many of us handled little or no “easy” cases like probation violations. Try handling 40 1st, 2nd, and 3rd degree felonies a month. All my friends outside the PDs office recognized it for what it was: madness. So all this built up until David and I couldn’t take it. We resigned because we knew we couldn’t give all our clients the representation they deserved with the way the office was headed. And we weren’t alone. In the past month or so five attorneys have resigned. One was even board certified in criminal law. I love the PDs office with all my heart. I respect the attorneys up there and hope they’re able to right the ship. It’s a tragedy that is absolutely pointless if you ask me.
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UPDATE:
A PD friend reminded me about the paysheets. How could I forget the paysheets?! For the uninitiated (lucky you) in all this post Brad Lollar mess, the commissioners court accused the PDs office of being inefficient. Everyone with any knowledge of the system knew this was an absurd accusation, but the commissioners were serious. To prove their efficiency, the PDs had to turn in fake paysheets like the private attorneys who receive court appointments. The private attorneys turn in a paysheet at the disposition of any court appointed case in order to be paid for their work. The PDs, who are not paid for each case, of course never did this. So now, on top of the double stats and the worthless case management program, PDs are turning in a third form of stats. The whole thing seemed to be an exercise in futility to me: the commissioners could’ve easily determined “efficiency” based on the stats PDs were already turning in. So this morning I hear from a little birdie that the fake paysheets have been suspended. If you ask me it’s past time to do this. I’m happy for my former co-workers since this will save them some precious time otherwise wasted on paperwork.

Here are some other interesting tidbits regarding the Dallas County PD's Office:

• Texas Lawyer: Common Clashes: Politics, Pressure and the Public Defender's Office
• Texas Task Force on Indigent Defense: Review of Dallas County Public Defender
• Grits for Breakfast: Dallas Public Defender purge raises legal and policy concerns

Twitter and Gustav

I just wanted to send a special shout out to two microbloggers from New Orleans who made Twitter absolutely addictive over the past two days.

ernieattorney and YatPundit kept the outside world informed about what was going on in New Orleans, Metairie and the Louisiana coast during Hurricane Gustav. Forget about the false hype on CNN, MSNBC and other over-the-air stations, these microbloggers kept the information flowing during the hours leading up to landfall.

Good job.

Was the bar raised?

Just caught the series premiere of Raising the Bar on TNT. As with most series premieres, I found it a bit too loud and too fast (though I understand they have but one hour to introduce you to the characters and get you to bite on the premise).

So, we have the self-righteous public defender who, apparently, spends all his time telling the judge what we all wish we could say in the same situation. We have his girlfriend, the ADA, who is torn between doing what's right and doing her job (reminds me of the relationship between Daniel J. Travanti and Veronica Hamel in Hill Street Blues). We have the ADA with a conscience. We've got the judge who seems to think she's the second prosecutor. And we have the judge's law clerk who is bedding the judge, the men he meets at bars and brokering deals to help out our hero. I'm curious to see what happens between preppy public defender and the chief PD.

I guess I'll sit down and watch it again next Monday night. It's probably worth a drink and a bowl of popcorn at the end of the day. It does go to show that lawyers need to hang out with non-lawyers (thank God for my wife and two little girls) to keep their heads on straight. I just wonder if it has any staying power or if it'll go down in flames like 100 Center Street on A&E a few years ago.