Saturday, January 31, 2009

Turning up the heat

Life has now gotten tougher for disgraced former technical supervisor Dee Wallace as a Harris County grand jury has returned an indictment against her alleging that she tampered with a government document. The charge, a state jail felony, carries a term of from six (6) months to two (2) years in jail and a fine of up to $10,000.

Harris County D.A. Pat Lykos was quoted as saying "We are working very diligently to ensure that only lawful evidence in introduced in court." I don't see the D.A.'s office offering those same assurances to the citizens I represent in the county courts. I guess it pays to have been on the state's payroll (even though she stole taxpayers' money while on it).

At some Ms. Wallace will also be called upon to answer to Galveston County for her criminal acts of faking maintenance records, filing false affidavits (DIC-56's) with the DPS and lying on the witness stand.

The Galveston County D.A.'s Office has begun the process of notifying thousands of citizens that some of the evidence upon which their convictions were based is tainted. Should you receive one of those letters, contact my office so that we can take the first steps to restoring your reputation.

See also:

Friday, January 30, 2009

Welcome to Theatre of the Absurd

Should you be placed on probation for a violent crime such as rape, murder, burglary or any other crime in which a gun was displayed, feel free to move out of Texas, if the state you are planning on moving to doesn't object to your impending citizenship. But, if you're on probation for driving while intoxicated -- slow down, put your life on hold and be prepared to stay in Texas until your time is up.

At least that's what judges up in Smith County (Tyler) think the law is. It seems, according to this column from Rick Casey of The Houston Chronicle, that once upon a time an assistant state attorney general read some tea leaves and decided that an interstate compact signed by all the states in the U.S., allowed local judges to be sued should one of their non-violent probationers get into trouble in another state.

Back in July the interstate commission sent out a letter telling local judges they had nothing to worry about - and that seemed to resolve the issue throughout Texas, with the exception of that outpost in East Texas known as Smith County. On Monday, the Attorney General, Greg Abbott, is expected to issue an opinion assuring judges in Smith County that it's okay to allow people to get on with their lives if they're on probation for a non-violent misdemeanor.

It's just another performance at the Theatre of the Absurd for those folks who think driving while intoxicated is the most heinous crime known to civilized man. It almost makes the Harris County D.A.'s Office stance of never reducing a DWI seem reasonable by comparison.

Police attempt to manipulate study on red-light cameras

It turns out that the Houston Police Department tried to count accidents at camera-enforced intersections differently in order to skew the findings in a city-commissioned study on the use of red light cameras.  That study found an increase in the number of accidents at monitored intersections.

Dr. Robert Stein, of Rice University, one of the study's authors, acknowledged the cameras are not working as planned.
Why are these crashes going up at these intersections?  Nobody really cares to get at the truth here. Cars are being damaged, people are being injured and a handful of people are dying. … What I want to know is, why they aren’t working in Houston, and what we can do to improve them?

The police department asked Dr. Stein not to consider accidents that occurred more than 100 feet from a monitored intersection or accidents in which there was no red light violation. Why would the police make such "requests?"  It's simple...the city claims the red-light camera program was put in place to make the streets safer - but, from the beginning, critics have said the purpose of the program is to raise revenue for the city.

As I pointed out in a previous post, tickets from the red-light cameras are considered civil violations of a city ordinance and determined based upon a preponderance of the evidence while citations issued by a police officer are Class C misdemeanors and require the prosecutor to prove the violation beyond a reasonable doubt.

The designation as a civil violation also means the citizen accused does not have the right to confront his accuser as the only evidence presented is a photograph of the license plate and a conclusory affidavit.  So much for equal protection under the law.

Currently Houston attorneys Randall Kallinin and Paul Kubosh are involved in litigation to shut down the city's red-light camera program and end the money grab.

Thursday, January 29, 2009

The wisdom of Coach Royal

For those of y'all who grew up watching the Longhorns in the 60's and 70's, you need no introduction to Darrell K. Royal.  Coach Royal brought the 'Horns to prominence with a pair of national championships.  He also coached scores of memorable games - though he is associated mostly with 1969's Game of the Century, a 15-14 victory over Arkansas that garnered Texas a national title.

Coach Royal believed in smash-mouth, run-oriented football.  He once said there were three things that could happen on a pass play, and two of them were bad.

He also said you've got to dance with the one that brung ya.

Although he was very conservative on the sidelines, he and Emory Bellard introduced the
most revolutionary offense (at that time), the Wishbone.  By removing a flanker and putting out an additional halfback, Coach Royal was able to take advantage of his bottomless cup full of running backs on the Forty Acres.

Said James Street (quarterback of the 1969 National Champions):
He was not a rah-rah coach. He would not give a big-game speech. He said attention to detail, kicking game and the breaks would win the game.
To win at trial you don't have to be someone that you're not. You don't have to be flashy and you don't have to be a stage actor.  Pay attention to the details, keep the focus on your story during cross-examination and you'll be able to take advantage of the breaks that come your way.

Tuesday, January 27, 2009

Coach charged in death of football player

Mr. David Stinson, head coach for the Pleasure Ridge Park H.S. football team, was charged this past Thursday for reckless homicide in the death of a player at summer practice.  Mr. Stinson asked the Jefferson County Commonwealth's Attorney to speak to the grand jury but his request was denied.  The only person who testified before the grand jury was a Louisville Metro Police detective.

Mr. Gilpin was taking Adderall at the time of his death and had been taking creatine - though he may have stopped taking it before his death.

On the afternoon of August 20, while the heat index hovered in the mid-90's, Max Gilpin, an offensive lineman, collapsed.  He was taken to the hospital with a body temperature of  107 degrees.  He died three days later.  Coaches allegedly refused to allow players to take water breaks during practice.  According to a deposition given by the school's athletic director, Mr. Craig Webb, Mr. Gilpin was on the ground for 10-15 minutes before anyone attended to him.

According to reports, a second player also collapsed and spent two days in the hospital.

According to Kentucky law, a person is guilty of reckless homicide, a Class D felony (carrying a range of 1-5 years in prison), if he causes, by his recklessness, the death of another.  Said the Commonwealth's Attorney, "a reasonable man should have realized that something like this could have occurred."  Interestingly enough, none of the five assistant coaches on the field at the time of Mr. Gilpin's collapse were charged.

Earlier this month I posted an article about assigning criminal liability to bad business decisions. Could this case set a precedent and expose all coaches to criminal liability when something goes horribly wrong at practice or in a game? Texas has always been famous for working football players hard during the summer so that they'll be ready to compete in the fall -- you haven't forgotten about Bear Bryant's Junction Boys? While in law school it was not unusual for me to come home from work and run 5 miles in 90 and 100 degree temperatures before going to class. Have the increased use of prescription pharmaceuticals, over the counter medicines and supplements made us more vulnerable to the heat? 

Only time will tell if Mr. Gilpin's death was a tragic accident or a death that could have been prevented.

See also:

Monday, January 26, 2009

Crowded house

Harris County officials seem to have finally seen the writing on the wall regarding jail overcrowding. With the inmate population of the Harris County Jail expected to rise to 12,600 this spring, the Sheriff, Adrian Garcia, the District Attorney, Pat Lykos, and the eight new criminal district judges are looking at ways to alleviate the situation.  Chief among the suggestions are the issuing of personal bonds for nonviolent offenders and the creation of a mental health court.

The Harris County Jail has been certified by the state to house up to 9,435 inmates but is currently housing close to 11,000 thanks to the state's authorization of 1,840 "variance beds." There are also nearly 1,000 Harris County inmates being housed in Louisiana.

As my colleague, Mark Bennett, stated, holding minor drug offenders in custody only encourages them to plead to cases before any investigation has been conducted on their behalf. He is correct in acknowledging that it is easier to defend a case when the citizen accused is able to function in a (somewhat) normal manner during the pendency of the case.

According to the Eighth Amendment "[e]xcessive bail shall not be required..."  The purpose of bail is to guarantee appearance in court -- not to punish.  If a citizen cannot afford to post bail, that is, by definition, excessive bail.  Continuing to hold that citizen deprives him of his right to confront witnesses and present evidence to the court, which, in turn, makes the presumption of innocence a cruel joke.

Sunday, January 25, 2009

Always expect the unexpected

This morning while running from my house down to 610 and Memorial I saw a male peacock strutting in someone's driveway near Memorial and Silber.  Needless to say, seeing a peacock wandering around was one of the last things I expected to see on my run.  I stopped and watched it for a couple of minutes before getting back on my way -- when I returned twenty or so minutes later, it was gone.

Trial lawyering is all about dealing with surprises, because no matter how much you may prepare, someone is going to say something you never expected to hear.  While some of the surprises may help your case and others may hurt your case, you're going to have to deal with them just the same.  If you go into trial with a rigid script you're not going to be paying attention to what the witnesses say and you won't know how to react when the unexpected occurs.

Trial is very fluid and you can't afford to sit down at the table and not be flexible enough to deal with the surprises that will be thrown your way.

Work from an outline, not a script.  List the admissions you're looking for and check them off when you get them.  Live in the moment and listen to what the witness is saying instead of thinking about your next question.  Most important, as Pablo from The Backyardigans once said: "Always expect the unexpected."

Saturday, January 24, 2009

Survivorman and the art of trial lawyering

Last night my littlest one fell asleep while we were watching Survivorman. While Les Stroud was struggling to survive a week on the northern extreme of Canada's Baffin Island, he commented on what it takes to survive in an extreme environment. Mr. Stroud said that, in order to survive, you must be prepared, you must have the proper mental attitude (the "will to survive") and you must have luck.

That luck can range from finding dry wood to an old shelter to garbage washed up on shore to, as happened on Baffin Island, to throwing a hook and line into the water on the spur of the moment and catching three fish.

The same applies to trial work. In order to succeed in trial you must first be prepared. You have to know your case inside and out. You have to know where you're trying to go. You must also walk into that courtroom with the attitude that your story is going to prevail. In the words of Coach Tony D'Amato in Any Given Sunday, you have to see it, then do it. You have to have the courage to announce ready at docket call. You also have to have a bit of luck on your side. It can be anything from witnesses that don't show up to witnesses who, once caught in a lie, refuse to deviate from it.

Now you can't manufacture luck - just like you can't coach speed - but you can put yourself into position to benefit from it by being prepared and having the attitude that you can't lose.

Friday, January 23, 2009

Would you like a pound of flesh with that?

By now we all know the tragic story of former Atlanta Falcons quarterback Michael Vick.  Now comes news that as Mr. Vick is coming toward the end of his prison sentence for his involvement in dog fighting that PETA is attempting to block his attempts to return to the NFL.

Mr. Vick and PETA had been in negotiations for Mr. Vick to do a public service announcement denouncing dog fighting.  Mr. Vick agreed to do the spot if PETA would not oppose his bid for reinstatement - but PETA wanted more.  PETA is demanding that Mr. Vick undergo a psychological test and an MRI brain scan before he is allowed to return to the NFL.

Now I find dog fighting just as reprehensible as the next guy, but let's get real here.  There are players in the NFL who committed crimes far worse that killing dogs.  There's Ray Lewis of the Baltimore Ravens who was charged with murder after the 1996 Super Bowl and, in a plea deal, plead guilty to a charge of obstruction of justice.  There's also Leonard Little who was convicted of intoxication manslaughter.

When Mr. Vick is released from prison he will have paid his debt to society and should be allowed to attempt a comeback in the NFL.

A little professional courtesy?

State District Judge Elizabeth Berry scored a victory in Johnson County (Texas), when the trial court ruled that blood samples taken after she was arrested for driving while intoxicated are inadmissible due to a defective warrant.

The affidavit said that after Judge Berry was stopped for driving 92 miles per hour, on Interstate-35W, officers saw eight beer bottles in the car.

The affidavit didn't say where the beer bottles were in the vehicle, if they were open or if they were hot or cold.  It did however state that Judge Berry refused sobriety tests and appeared confused and unstable, but didn't describe how the officer came to that conclusion.

The official paperwork also said that Judge Berry was, "unusually quiet due to intoxicated state."  When the affidavit was faxed to a local judge it was sent back, saying more detailed information was needed for a warrant to be issued.

After the arresting officer added that his partner said Judge Berry had the smell of an alcoholic beverage on her police were given approval to draw blood.

After reviewing all the information Thursday it was ruled that there was not enough evidence to give permission to draw blood, so the blood samples and intoxication levels are inadmissible in court.

The trial court's decision illuminates what is and what isn't probable cause to obtain a "blood" warrant in a DWI arrest.  I think it also points out that there is insufficient cause to arrest a citizen on suspicion of DWI based on a traffic violation (not noted as a "reliable indicator" of intoxication), the smell of an alcoholic beverage, the presence of alcohol in the car and a refusal to perform police coordination exercises. 

This decision provides further fuel to my advice to decline a police officer's "invitation" to perform coordination exercises at the scene and to refuse to blow into the state's breath test machine.

Wednesday, January 21, 2009

Oops, there I go again...

From KEYE-TV in Austin, we have the story of a Williamson County (Texas) Sheriff's detective who was popped for his second DWI over the weekend:

A Williamson County Sheriff's detective who had previously been convicted of drunk driving has now been accused again.
Austin police arrested Jeff Gee Sunday near Lakeline Mall. 

The arresting officer said in an arrest affidavit that Gee was driving the wrong way on Ridgeline Boulevard at RR 620. He admitted drinking six 16 ounce glasses of beer, according to the affidavit.

The document also said Gee had been convicted of DWI in Brownsville in 1989.

Sheriff's office spokesperson John Foster says detective Gee is now on administrative leave with pay.

Apparently the police don't bother to exercise their right to remain silent, either.

At least for Det. Gee's sake he was stopped in Travis County and not in Williamson County, the bailiwick of District Attorney John Bradley (generally recognized as being crazy - see this post from my colleague Mark Bennett's Defending People).  

As anyone familiar with the goings-on in Central Texas knows, it's always best to be behaving badly south of Williamson-Travis County line.

Ripping a new one

Typically when a prosecutor dismisses a case in Harris County he marks "Other" on the standard Motion to Dismiss and, under explanation, writes in "See state's file."  However, when my DWI case was dismissed on the morning of trial, the prosecutor went into a bit more detail:

ADA --- sub[peonaed] Officer [Andrew] Barr [of the Houston Police Department] on 10/8/08 for trial for 1/20/09. ADA --- repeatedly called Officer Barr and finally made contact with him on trial date. Officer Barr stated that he hadn’t checked his sub[poena] in several weeks and was on vacation and would not be able to come to trial. ADA --- also was able to possibly schedule Officer Barr to testify on 1/21/09 and Officer indicated that he would be able to attend. Officer Barr is wheel witness and no scene video. Independent witness couldn’t ID the driver per for ADA --- cannot make case without Officer Barr because [Defendant] made statements to Officer Barr which are necessary to [court]. Officer Barr also did HGN on [Defendant] with no other field sobriety tests. Jury was in hallway.

When I asked the prosecutor why he didn't just write "See state's file" he told me that the files were destroyed after two years.  I guess he wanted to tattoo Officer Barr for life.

The dismissal was yet another example of what can happen when you have the courage to stand up and announce "Ready" on trial date. My client was nervous and almost accepted a trial day deal for probation and some community service, but she held firm, rejected the offer and was rewarded with the dismissal.

Tuesday, January 20, 2009

A new day for America

At 11:00 a.m. I was in the court reporter's office for Harris County Criminal Court at Law No. 10 with the court reporter, two other defense attorneys and two prosecutors watching history being made.

Here is the text of President Obama's inaugural address to the nation...

My fellow citizens:

I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors. I thank President Bush for his service to our nation, as well as the generosity and co-operation he has shown throughout this transition.

Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms. At these moments, America has carried on not simply because of the skill or vision of those in high office, but because We the People have remained faithful to the ideals of our forbearers, and true to our founding documents.

So it has been. So it must be with this generation of Americans.

That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost; jobs shed; businesses shuttered. Our health care is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.

These are the indicators of crisis, subject to data and statistics. Less measurable but no less profound is a sapping of confidence across our land — a nagging fear that America's decline is inevitable, and that the next generation must lower its sights.

Today I say to you that the challenges we face are real. They are serious and they are many. They will not be met easily or in a short span of time. But know this, America — they will be met.

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.

On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas, that for far too long have strangled our politics.

We remain a young nation, but in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.

In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of shortcuts or settling for less. It has not been the path for the faint-hearted — for those who prefer leisure over work, or seek only the pleasures of riches and fame. Rather, it has been the risk-takers, the doers, the makers of things — some celebrated but more often men and women obscure in their labour, who have carried us up the long, rugged path towards prosperity and freedom.

For us, they packed up their few worldly possessions and travelled across oceans in search of a new life.

For us, they toiled in sweatshops and settled the West; endured the lash of the whip and plowed the hard earth.

For us, they fought and died, in places like Concord and Gettysburg; Normandy and Khe Sahn.

Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction.

This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.

For everywhere we look, there is work to be done. The state of the economy calls for action, bold and swift, and we will act — not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost. We will harness the sun, and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age. All this we can do. And all this we will do.

Now, there are some who question the scale of our ambitions — who suggest that our system cannot tolerate too many big plans. Their memories are short. For they have forgotten what this country has already done; what free men and women can achieve when imagination is joined to common purpose, and necessity to courage.

What the cynics fail to understand is that the ground has shifted beneath them — that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works — whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account — to spend wisely, reform bad habits, and do our business in the light of day — because only then can we restore the vital trust between a people and their government.

Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control — and that a nation cannot prosper long when it favours only the prosperous. The success of our economy has always depended not just on the size of our gross domestic product, but on the reach of our prosperity; on our ability to extend opportunity to every willing heart — not out of charity, but because it is the surest route to our common good.

As for our common defence, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity, and that we are ready to lead once more.

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.

We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort — even greater co-operation and understanding between nations. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the spectre of a warming planet. We will not apologize for our way of life, nor will we waver in its defence, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.

For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus — and non-believers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.

To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West — know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.

To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.

As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us today, just as the fallen heroes who lie in Arlington whisper through the ages. We honour them not only because they are guardians of our liberty, but because they embody the spirit of service; a willingness to find meaning in something greater than themselves. And yet, at this moment — a moment that will define a generation — it is precisely this spirit that must inhabit us all.

For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours. It is the firefighter's courage to storm a stairway filled with smoke, but also a parent's willingness to nurture a child, that finally decides our fate.

Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends — hard work and honesty, courage and fair play, tolerance and curiosity, loyalty and patriotism — these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility — a recognition, on the part of every American, that we have duties to ourselves, our nation and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.

This is the price and the promise of citizenship.

This is the source of our confidence — the knowledge that God calls on us to shape an uncertain destiny.

This is the meaning of our liberty and our creed — why men, and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.

So let us mark this day with remembrance, of who we are and how far we have travelled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

"'Let it be told to the future world ... that in the depth of winter, when nothing but hope and virtue could survive ... that the city and the country, alarmed at one common danger, came forth to meet [it].'"

America. In the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested, we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.

The crimininalization of bad choices

I came across this blog posting on Twitter one day and it made me think.

One of the cornerstones of our criminal justice system is the presence of intent in the commission of a bad act.  A bad act without intent may be a civil tort (i.e. negligence) without being a criminal act. The Texas Penal Code recognizes four degrees of culpability and the severity of a bad act is determined, in large part, by the degree of culpability that can be proven.

However, in the federal system there has been a steady movement toward result-oriented crimes -- in other words, the bad act itself.  This can be seen in the increasing number of regulatory crimes that have been created over the past century.  No longer must los federales prove that John Doe meant to violate the federal regulatory scheme, now it's enough that a regulation was broken.

It's a way of trying to pin the blame for an event onto a person.  Sure, in some of the giant corporate scandals of this decade people made decisions that they knew violated the law; but some citizens have been charged with crimes solely because they made bad choices or acted upon bad advice.

Rational minds can differ with any course of conduct.  An executive can also make an honest decision that he thinks comports with the law that doesn't.  That doesn't make him a criminal.

Monday, January 19, 2009

Tips on jury selection

Apparently the San Francisco Public Defender's Office doesn't want Asians on its juries.  A former intern in the office blogged about a conversation  she overheard in which her bosses said not to put any Asians on the jury for a case involving an allegedly drunken citizen receiving a bit of oral pleasure in his car because "Asians don't drink, they love Jesus and they're creeped out by everything."

Kelly Siegler, ex-prosecutor in the Harris County D.A.'s Office (and ex-candidate for D.A.), didn't want anyone who was a member of Lakewood Church (headed by Joel Osteen) on her juries because they were "screwballs and nuts."

Dallas County's systematic practice of excluding blacks from juries in 60's and 70's, because "they almost always empathize with the accused" was the basis of the 5th Circuit's overturning of a 30-year old murder conviction this week.

See also:

Friday, January 16, 2009

Blowing while intoxicated

According to the Texas DWI statute, a citizen must be intoxicated at the time of driving in order to be convicted of driving while intoxicated.  In cases in which the citizen accused blew into the state's breath machine, the state has a powerful piece of evidence that juries love to rely upon. That is, if the state can prove that the citizen's alcohol concentration was .08 or greater at the time of driving.

In order to do this, the state's expert "back-extrapolates" the breath test result to estimate the alcohol concentration at the time of driving.  In order to perform this "back-extrapolation," the state's expert takes the alcohol concentration at the time of the test and then, using the Widmark equation, calculates what that alcohol concentration would have been at the time of driving.

The state's expert will even estimate the number of alcoholic drinks the citizen consumed to get to this extrapolated alcohol concentration.  Of course it's all a giant guessing game as the state's expert doesn't know how much the citizen had to drink, what the citizen had to drink, over what span of time the citizen drank it, what the citizen had to eat, when the citizen ate, etc.  This generalization can cause some headaches for the state, as evidenced in the Mata decision where the Court held that without concrete facts regarding the weight and sex of the citizen and some specifics as to food and drink, this "back-extrapolation" was inadmissible.  And if that number is inadmissible then the breath test becomes just another piece of evidence for the jury to sift through in its deliberations.

But now the legislature is coming to the rescue.  House Bill 170, introduced by Jimmie Don Aycock of Lampasas, would change the DWI statute to create a presumption that a breath test result within 90 minutes of driving would be accurate as to the time of driving.  In other words, the state would no longer have to "back-extrapolate" a breath test result in order to show its relevance.  It would also invalidate the presumption of innocence in drunk driving cases.

In Representative Aycock's world, a citizen would be guilty of driving while intoxicated if the state can prove the citizen was intoxicated up to 90 minutes after driving.  Now there's no need to worry about pesky little details like proving the elements of a crime beyond a reasonable doubt.

Thursday, January 15, 2009

A voice of reason

Finally, a voice of reason in the neverending war against drugs.  

Judge Michael McSpadden, who presides over the 209th Judicial District Court in Harris County, sent a letter to top state officials and the representatives and senators from Harris County asking them to reduce felony cases involving less than a gram of cocaine to misdemeanors. Judge McSpadden proposed mandatory treatment and the creation of misdemeanor drug courts. 

According to Judge McSpadden, at least a quarter of the felony court dockets are cases involving possession of less than a gram.

Fifteen other Harris County judges also signed the letter.
“The ‘War on Drugs’ isn’t working, and we as judges realize it,” McSpadden said. “And the public realizes it.
But Harris County D.A. Pat Lykos raised questions of whether such a reform would be in anyone's best interest.  Ms. Lykos stated that reducing possession to a misdemeanor would mean more inmates in the Harris County Jail.  She also said that small drug arrests tend to drive out other criminal activity in an area.  Finally, Ms. Lykos said that all drug users have blood on their hands due to drug cartel violence.

  • Read Grits' account of Judge McSpadden's letter to state officials in 2006.

Mo' news is bad news for Judge Kent

More bad news for embattled federal Judge Samuel Kent - the judicial council of the 5th Circuit announced it will reopen its investigation into Judge Kent following his indictment on additional charges earlier this month.  According to the council, it will pursue its investigation after the criminal proceedings have been completed - regardless of the outcome.

See also:

Wednesday, January 14, 2009

What exclusionary rule?

In a 5-4 decision, the U.S. Supreme Court decided that our 4th Amendment right against unreasonable search and seizure is now subject to a balancing test - were the actions of the police so out-of-bounds that evidence should be suppressed to deter future conduct? 

The majority also said that the exclusionary rule did not confer an individual right.  Maybe I'm just missing something but, near as I can tell from my (apparently) rudimentary education, the 4th Amendment says
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
Maybe I'm just missing something, but it sure seems as if the 4th Amendment confers individual rights.

So, according to the Supreme Court, the police can violate your right against unreasonable search and seizure all they want; and as long as they don't cross over some undefined line, any evidence they obtain is admissible against you, provided the court detemines what you did was bad enough.  In other words, the new test is who committed the bigger sin: the citizen or the cops? I guess this also means that the presumption of innocence is next on the chopping block.  

Equally disturbing is Chief Justice Roberts' statement that the fact Bennie Dean Herring had been in trouble with the law before was all the "probable cause" the police needed to harass him.

5th Circuit overturns murder conviction

The 5th Circuit Court of Appeals overturned the murder conviction of Jonathan Bruce Reed, who has sat on Texas' death row for almost 30 years.  The Court sided with Mr. Reed who argued that the systematic exclusion of blacks from juries in Dallas County was a violation of his Sixth and Fourteenth Amendment right to trial by a jury of his peers.

Mr. Reed is white.

In so ruling, the Court is saying that the systematic exclusion of any group from service on a jury is a violation of a citizen's right to trial by jury, per Batson v. Kentucky, regardless of the citizen's sex, race or ethnic background.

The decision also serves to define jury of one's peers to mean a jury made up of a cross-section of a geographic community.

See also:

Tuesday, January 13, 2009

Think twice before you plead

For those of you who doubt the serious consequences a DWI conviction can have, here comes the story, courtesy of the ABA Journal, of a newly appointed judge who resigned his seat after he "forgot" to disclose the conviction.

Does that conviction make Mr. Singleton a bad person? No, it means he's human and just as capable of making bad choices as the rest of us.

As an aside, in Texas it is an absurd reality that you can receive deferred adjudication on a murder case, but not on a DWI case.

Who's on first?

Last week I commented on the refusals of prosecutors to hand over copies of offense reports to defense attorneys. Here's an article from Texas Lawyer in which the new Harris County DA, Pat Lykos, says (once again) that she's in favor of allowing defense attorneys to have copies of those reports.

Maybe she needs to send out a memo...

Monday, January 12, 2009


In Texas you commit the offense of driving while intoxicated if, while operating a motor vehicle in a public place, you have either: (1) lost the normal use of your mental faculties, (2) lost the normal use of your physical faculties or (3) have a blood alcohol concentration of .08 or higher.

However, if you are under the age of 21 and operating a motor vehicle in a public place with any detectable amount of alcohol, you have committed the offense of driving under the influenceAny detectable amount means that all an officer has to do is smell the odor of an alcoholic beverage on your breath to arrest you.  Should you subsequently fail a breath test, you could be arrested for DWI.

While driving while intoxicated is a Class B misdemeanor and carries a sentence ranging from three days to six months in the county jail and a fine of up to $2,000.00, driving under the influence is a Class C misdemeanor and carries a maximum fine of no more than $500.00.

However, even if you are stopped for driving under the influence, you still face the possibility of a driver's license suspension of up to twelve months on a first offense.  In addition, you will have only fifteen (15) days to appeal the administrative suspension of your license or you could lose it for six months just because you were arrested.

Sunday, January 11, 2009

To try or not to try

In just the past couple of days I have read blog posts from my colleagues, Mark Bennett of Houston and Brian Tannebaum of Miami, about the decision to take a case to trial.  I tell every client who walks into my office that I prepare each and every case as if it's going to trial.  Now, at some point down the road my client and I may decide that the case is more appropriate for a plea -- but if you start off trying to work the best plea, you are guaranteed a conviction.

Here's the math...if you decide to plead a case, there is a 100% chance of a conviction (since a deferred without a nondisclosure is the same as a conviction); but, if you take that case to trial, you have a chance, no matter how small it may be, of an acquittal.

As an aside, in Harris County, a citizen accused of a first DWI is likely to be offered ten (10) days in jail with no fine, time served and a hefty fine or 12-18 months probation.  Taking any of those offers leaves a citizen branded as a criminal for life -- no expunctions, no non-disclosures, nothing but a permanent record of a criminal conviction.  Take that same case to trial and, in the event of a conviction, the punishment won't vary by much.

I've told many a client after our first appearance not to worry about how bad the case may look -- all that's in the prosecutor's file is his evidence - offense report, accident report, photographs, breath slips, DPS forms, videos, etc.  Once we've seen what the state has, it's our turn to put together evidence - and that's when the case gets interesting.

Of course there are no guarantees in the criminal courthouse -- but then, there aren't any guarantees in life, either.

Saturday, January 10, 2009

Another little white lie?

During her campaign for Harris County District Attorney, former judge Pat Lykos promised that her office would make copies of offense reports available to the defense bar. Ten days into the new regime and the answer is still the same when a defense attorney asks for a copy of an offense report - "That's not our policy."

Offense reports, like accident reports and charging instruments, are public documents. The reports are placed in the state's file for viewing. But, somehow, making photocopies of those reports is verboten. To date, I have yet to hear a logical explanation from a prosecutor on why I can't have a copy of the report.

If the new regime can't keep this simple promise, what other campaigns lies will be revealed next?

Friday, January 9, 2009

Make money in alcohol breath testing

Looking for a way to increase revenue streams in your bar, restaurant, nightclub, pool hall or honky tonk?  KeRo, LLC has the answer for you -- the coin operated Alcohol Alert MARK VIII!

According to KeRo's literature, the coin-op breath tester is the "lastest in state of the art technology."  That certainly puts CMI's Intoxilyzer 5000 to shame, doesn't it?  It even comes with an extended warranty (can't get that with the Intoxilyzer).

The company touts its new dollar bill accepting unit as a way to increase your revenue per machine.  I wonder how long it will be until the State of Texas starts charging citizens $1 per breath test.  Just think of the money that will be flowing into the state's coffers in Austin.

Look at this list of features:
  • Solid state, printed circuitry (no moving parts)
  • 18 gauge, cold-rolled custom steel cabinet
  • Huge $200.00 coin capacity
  • 500 bill capacity
  • High impact "Lexan" face-plate backed with reinforced steel sheeting
  • Test results in clear voice and large L.E.D. bright, flashing lights - voice has volume control system
  • Pedestal, bar-top, or wall-mount installation
  • Manufactured totally in U.S.A.
  • Full ONE YEAR warranty (100% parts and labor)
  • Extended warranty available
  • Accuracy within ± .02%
  • Computer activated, self-calibrating software
  • Purges itself after each test
  • Computerized variable coin pricing
  • Police tested and enhanced
  • Not a game or fad...but fun to use
So contact KeRo, LLC today and build that nest egg for tomorrow!

Thursday, January 8, 2009

Making a federal case

The price of poker in the federal sexual abuse case against U.S. District Judge Samuel Kent has risen. On Wednesday los federales amended the indictment to include additional allegations of sexual abuse and obstruction of justice.

What I want to know, however, is why on earth this case is even in federal court. The acts that the judge is accused of committing were also violations of state law. Why isn't Judge Kent standing trial in state court?

The only federal offenses per the U.S. Constitution are counterfeiting U.S. currency and treason - because both are crimes against the United States. Nowhere in Article I, Section 8 is Congress bestowed with the power to create additional federal crimes. Such a notion flew in the face of the principles of federalism.

Do we really need to prosecute someone in federal court for murder? What Timothy McVeigh did was against the law in Oklahoma. Why is a drug kingpin standing trial in federal court? The last time I checked, possession and distribution of a controlled substance is a crime in Texas.

According to The Champion (published by the National Association of Criminal Defense Lawyers), there were about 165 federal criminal laws at the turn of the 20th century. That number has mushroomed to almost 4,500 today. Most of those crimes are regulatory and public welfare offenses for which the mens rea has been, for the most part, negated.

The 10th Amendment states that the states retain any rights not delegated to the United States in the Constitution. This proliferation of federal criminal legislation is just another example of the way in which the federal government has extended its reach far beyond what the Founding Fathers ever intended.

Wednesday, January 7, 2009

Duty and ethics

I ran across a very interesting column in this morning's Houston Chronicle penned by Rick Casey about the State of Texas' attempt to murder Mr. Delma Banks despite prosecutors having sat and kept their mouths shut while two witnesses for the state commit perjury on the stand.

Now, despite the US Supreme Court's decisions to send the case back for review and to vacate the death penalty, the State of Texas is back at it, sending an assistant Attorney General to New Orleans to argue that Mr. Banks is not entitled to the relief granted because his attorneys did not give proper notice of their intent to use a transcript of a coaching session with the prosecutor and one of the lying witnesses.

Nevermind that the prosecutors failed to disclose the existence of the transcript while Mr. Banks sat on Death Row - the state is seeking to reinstate the conviction on a technicality.  A technicality that wouldn't exist had the state done the right thing in the first place.

Every attorney licensed by the State of Texas pledged to follow the US Constitution, the Texas Constitution and The Texas Disciplinary Rules of Professional Conduct

Rule 3.09 defines the duties of a prosecutor.

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

I would pay close attention to 3.09(d) that requires a prosecutor to disclose ANY evidence that might tend to be exculpatory.  Based on the spirit of the rule, defending the State's handling of this matter is a violation of the disciplinary rules as such an argument condones the violation of Rule 3.09(d).  In other words, the Attorney General is asking one of his assistants to violate the oath she took on the day she was sworn in as an attorney.

Tuesday, January 6, 2009

Hold'em and trial strategy

A few weeks back I referred to David Sklansky's Theory of Poker and my colleague Mark Bennett's posting about Mr. Sklansky's fundamental theorem.

We can also take a few lessons from the so-called "Poker Brat" Phil Hellmuth (who has a record 11 wins in World Series of Poker events).  While television revels in Mr. Hellmuth's tantrums after taking a beating, I will focus on his underlying strategy that has made him a success.

On television you see all the monster bluffs the players pull off - after all, that's drama - but you don't usually get to watch the way the greats play their hands normally.  You see, the big bluff doesn't work if that's all you do; the big bluff works when you've set your opponents up by playing solid poker.

In his book, Play Poker Like the Pros, Mr. Hellmuth advocates playing very tightly, that is, only entering pots when you have two solid hole cards or when the pot is laying you good odds on a drawing hand.  He calls it his "Top Ten" strategy.  According to this strategy you should only enter a pot holding a pocket pair of 7's or better or an A-K or A-Q.  These hands give you the best odds to win the pot.

Now, you may ask, how does that relate to criminal defense?  

Push the prosecutor hard on your best cases - best sets of facts, best circumstances or best clients.  Put the state to its burden of proof.  Do it enough and you will earn a reputation that will precede you when negotiating with the state.  That reputation will allow you to sneak a marginal case by, since the prosecutor knows you only take your strongest cases to trial.

Monday, January 5, 2009

Is it genocide

A Northeastern University study has found that between 2002-2007, the number of black male juveniles murdered increased by 31% and the number of black perpetrators increased by 43%.

The numbers in Houston are even more alarming. Between 2001-2007, the number of young African-Americans (age 14-24) suspected of murder increased by 139%. The number of young black males murdered in the city increased from 42 to 129.

I'm not going to sit here and pretend to know why this is and what needs to be done to bring the numbers down, but I know that something ain't right.

Whether it's a culture that glorifies violence and materialism or whether it's a society that has marginalized the poor; whether it's a lack of role models and father figures or whether it's an education system that has abandoned the inner city; whatever it is, it needs to be fixed.

It may be that the statistical methodology in the report is faulty and that the numbers aren't as alarming, but that doesn't change the fact that one young life lost at the hands of violence is one life too many.

Friday, January 2, 2009

Rule No. 1

Listen, don't judge.

The late Sharon Levine listened to what her clients had to say without judging them.  Once you start to judge your client, you are no longer listening to what he or she is saying and you are doing them a disservice.

Our duty as criminal defense lawyers is to provide the best defense we can for our clients -- and you can't do that if you are caught up in making value judgments