NACDL seminar

I will be tweeting updates throughout this week's NACDL Midwinter Seminar in New Orleans. You can follow along with the updates on the right side of my blog or you can go to twitter.com and follow me (PaulBKennedy). My posts will be marked with the hashtag #NACDL.

Sitting at the bar at Gringo's

All the way down to League City I knew I was going to get a tongue-lashing from the judge at municipal court. It was 10:15 before I was able to leave the Harris County (In)justice Center for a 9:00 am docket call in League City.

The judge accused me of wasting the court's time and said I should've spoken to the prosecutor beforehand. I told the judge that I had contacted the court the day after I was hired to inform them of a felony matter in Harris County set at the same time. I also told her I spoke to the city prosecutor that same day about a continuance and that he was unopposed. I pointed out that I had filed an unopposed motion for continuance that the court refused to consider because it was filed less than 15 days prior to trial. I told the judge I had called the court the day before to inquire about my motion. After being told it hadn't been signed, I reminded the clerk of my conflict. Finally, I pointed out that I spoke to the clerk at 9:15 this morning and told her I would be late.

So what did the judge do? She reset the case - just as I had asked the court to do last week. My client was dumbfounded - she had to skip a seminar to waste her time in court this morning.

The cheese enchiladas at Gringo's are pretty good, though.

The bigger they come...

Samuel Kent is now a former federal judge. 

This morning, at the federal courthouse in downtown Houston, as jury selection was scheduled to begin, Mr. Kent pled guilty to one count of obstruction of justice and resigned from the bench in exchange for los federales dropping the five counts of sexual abuse.

Sentencing is expected in May with prosecutors expected to ask Senior U.S. District Judge Roger Vinson to sentence the 59 year-old Kent to three years in prison.

See also:

• Plea agreement.
  

I can't make up stuff like this

I need some help. If anyone out there knows of an attorney who would handle a case like the one I'm about to describe, please let me know.

I (may or may not have) received a call this afternoon from a woman who thought she was in need of an attorney. There was some matter about being harmed by a government agency. I asked her to tell me how she was injured and by whom. What I heard on the other end of the phone was so fascinating I couldn't stop listening.

About a year after 9/11 this damsel in distress found herself under surveillance by domestic spies at the behest of the Department of Homeland Security (has there even been a more Nazi-inspired agency name than that?). At some point she told me the department tried to drive her to suicide by drugging a jug of milk. She said she started having suicidal thoughts after drinking the milk. So she bought another jug (with a later expiration date) and because suspicious when the first jug of milk never went bad on her.

Later on, she continued, the department planted a device in a hamburger she ate that implanted itself in her stomach, allowing spies to listen in on everything she said and heard. Then, in the last year, she went out on a date with a man who turned out to be a spy. They went to the movies and he put his hand down "hard" on her lap. When she got home that night she saw a needle mark on her leg where his hand had been.

When she asked me if I knew of any government agencies that would be able to investigate this situtation I had to tell her (with not one hint of sarcasm) that since the Department of Homeland Security was a goverment agency that it was unlikely any other government agency would actually investigate their activities. She said that made sense to her.

Unfortunately I had to tell her that I don't practice in the federal courts and that she should look for an attorney who did. Luckily for some of y'all out there (and you know who you are) I didn't give out names or phone numbers when she asked who might be able to help.

Maybe I need to remove some of those key words I have in meta-titles of my web page such as psychotic, delusional, nut job...

Sittin' down at the table

A South Carolina municipal judge has struck a blow for poker players everywhere by deciding that poker is a game of skill and, therefore, not an illegal pasttime.

South Carolina law forbids gambling on games of chance, such as craps. Up til now people playing poker in the privacy of their own homes were subject to arrest by local police.

As anyone who has ever calculated the odds of drawing to the flush or inside straight knows, there is far more skill to playing winning poker than meets the eye. Poker is all about making the correct choice at every step of the game: knowing what starting hands are worth playing, knowing what cards are still in the deck, knowing the pot odds, knowing the tendencies of the players sitting at the table with you. Put some hard earned money behind those decisions and you can feel the pressure mounting.

Those skills you used at the table last night are the same skills used in defending fellow citizens accused of breaking the law. Every case is worth fighting, but you have to know the stakes for which you choose to fight: an acquittal, a reduced charge, a lesser sentence, probation, deferred

adjudication, pretrial diversion, etc. You have to be able to identify the strengths and weaknesses of your case and weigh them against the hand dealt to the state. You have to be able to read your opponent and know how far you can push. Finally, you have to have the courage to put it all in the middle of the table.

Postscript: As South Carolina criminal defense attorney Bobby Frederick pointed out, the gentlemen were convicted of running a gambling house.

Vampires in Williamson County

Here comes disturbing news that vampires have been spotted in Williamson County, Texas... On February 18, 2009, jailers in the Williamson County Jail got the go ahead to draw blood in felony DWI cases.

Three EMT jailers went through the four-week training to become licensed phlebotomists and are now qualified to take forcible blood draws from citizens at the jail's infirmary.

Up until February 18, citizens accused of driving while intoxicated were taken to area hospitals for forcible blood draws, but delays in the process frustrated the Williamson County District Attorney. The delays were caused by the hospitals' (selfish?) need to treat injured and sick people in the emergency room first.

Under Section 724.017(a) of the Texas Transportation Code, only physicians, qualified technicians, chemists, RN's or LVN's could draw evidential blood samples from citizens. Furthermore, the blood draw had to be made in a "sanitary" place.

So, since hospitals are teeming with qualified vampires and since hospitals, aside from the germs floating about from wards of sick patients, are considered quite sanitary, evidential blood draws in Texas were taken in hospitals.

In other words, the blood samples were drawn by disinterested persons in a neutral environment.

Now, in Williamson County, blood will be drawn by interested parties in questionable environs. Furthermore, the vampires will have received their training, not to help the sick and injured, but to further the aims of the police state.

Hmmm...sounds vaguely like technical supervisors.

Inquiry concerning a judge, No. 96

Pursuant to Section 33.022 of the Texas Government Code and Rule 10 of the Procedural Rules for the Removal or Retirement of Judges, as promulgated by the Texas Supreme Court, this NOTICE is hereby given to the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, that formal proceedings have been instituted against her, based upon the following...

So begins the Notice of Formal Proceedings filed by the Texas State Commission on Judicial Conduct against Judge Sharon Keller for her shameful behavior on the afternoon of September 25, 2007, when she refused a request from the Texas Defender Service to file a writ of prohibition on behalf of Michael Richard, who was scheduled to be murdered by the State of Texas that evening.

Judge Keller, despite her knowledge that the U.S. Supreme Court had granted certiorari in Baze v. Rees to decide whether Kentucky's method of lethal injection constituted cruel and unusual punishment, ordered the clerk's office to close at 5:00 p.m. Judge Keller made that decision despite the fact that Judge Cheryl Johnson was the designated judge in charge of Mr. Richard's execution.

Making matters worse, Judge Keller did not inform Judge Johnson, or any of the other judges of her decision to close the clerk's office. Judge Keller did not relay any of the messages from Mr. Richard's attorneys to Judge Johnson, nor did she inform Mr. Richard's attorneys that Judge Johnson was in charge of the case.

Judge Keller left her chambers at the CCA during the afternoon on September 25, 2007, to meet a repairman at her home. Judge Keller did not return to the CCA that day. -- Paragraph 14

The Commission alleges that Judge Keller's "willful and persistent failure to follow [the Texas Court of Criminal Appeal's] Execution-day Procedures on September 25, 2007" violated her duty as Presiding Judge, discredited the Court and demonstrated incompetence. The Commission also alleges that her actions deprived Mr. Richard of his constitutional due process rights.

Judge Keller has 15 days from the date of filing (February 18, 2009) to respond to the allegations.

Time to move along

So Alex Rodriguez admits to using steroids yet no one seems to be satisfied with what he said. What did y'all expect - for A-Rod to stand up and say he cheated by using steroids and that he was really, really sorry for bring the game of baseball into such disrepute?

Get real. Rodriguez got caught and had to go into damage control mode pretty darned quickly. Of course the story he told Peter Gammons and the statement he made at his press conference don't mesh. When the story first broke, Rodriguez and his team had very little time to prepare a response and, after seeing what happened when Roger Clemens angrily denied the allegations against him, decided to admit to using and looked for a "soft" forum. Peter Gammons and ESPN was that "soft" forum.

At a formal press conference, however, he couldn't control the questions.

So what if his stories weren't consistent (or even believable). Did y'all really expect him to get up and tell the truth? If so, you must also believe everything you're told by a politician or a TV pitchman. The truth is people lie; and they lie for a number of reasons. It's unrealistic to expect a high-profile professional athlete to cough up the unadulterated truth. Look, citizens accused of criminal acts, and facing time in jail or prison, lie to the police, they lie to their families and they lie to their criminal defense attorneys. It's second nature to try to deflect some of the blame to someone else. And look, we make the same argument about our clients being "young and ignorant" that Rodriguez did yesterday.

And, while I'm on my rant...A-Rod did not do anything to bring the game of baseball into disrepute. Cheating has long been an integral part of our American Pasttime. Ty Cobb would sharpen his spikes sitting in the dugout and use them to break up double plays. the 1919 Chicago White Sox threw the World Series. The 1951 New York Giants put a spy in an outfield box to steal signs - it's a pretty sure bet that Bobby Thomson knew what pitch Ralph Branca was throwing when he hit the Shot heard 'round the world. Gaylord Perry made no secret of doctoring the baseball with all forms of "goop" and he's in the Hall of Fame. Players in the 60's, 70's and 80's were hopped up on greenies, marijuana, cocaine and heroin (to name a few of the performance enhancing drugs of that era). Joe Niekro was caught on the pitching mound with a nail file and other assorted devices in the middle of a game. Countless players have been nailed using corked bats (which, according to Mythbusters, don't do a damn thing).  

I don't care if Alex Rodriguez used steroids. I don't care if Barry Bonds or Roger Clemens or Mark McGwire or Sammy Sosa or anyone else, for that matter, shot their butts full of juice. Baseball is a game and the name of that game is entertainment.

The memory most etched in my consciousness was the one-game playoff between the Houston Astros and the (hated) Los Angeles Dodgers in 1980 (necessitated after Houston blew a 3 game lead over the last weekend of the season). I remember sitting in school with the public address sytem broadcasting the game to the entire school that afternoon. I remember Chris Burke's 18th inning homerun that beat the Atlanta Braves and put Houston in the 2005 NLCS. I remember Jason Lane's catch in right field that put the Astros in the World Series for the first time. 

I also remember sitting at Minute Maid Park with my wife and her students one September afternoon watching the Astros play the Giants at the end of one season. Barry Bonds sat on the bench that day - much to everyone's disappointment. But then, in the 9th inning, Bonds came on to pinch-hit against the Astros' fireballing lefty, Billy Wagner. The building was electric. Everyone was on their feet. And the crowd roared when Wagner struck him out. Did it matter that Bonds was juicing? No. What mattered was the drama.

Baseball's a game. It's entertaining. And come April 6, I will be sitting at Minute Maid Park with my 5 year-old daughter celebrating Opening Day.

Lawmaker seeks to impeach Presiding Judge

Lon Burnam, a Democratic state legislator from Fort Worth, has introduced a bill calling for the impeachment of the Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, for her actions regarding the execution of Michael Richard.

Mr. Richard was executed on September 25, 2007, when Judge Keller closed the court at 5:00 p.m. even though Mr. Richard's attorneys requested that the court remain open for 20 minutes in order to file his appeal.

"It's one thing for a banker to close shop at 5 o'clock sharp. But a public official who stands between a human being and the death chamber must be held to a higher standard." - State Rep. Lon Burnam

The extra time was needed due to computer problems and the U.S. Supreme Court's decision to hear a Kentucky case that questioned the constitutionality of execution by lethal injection.

Judge Keller indicated that she was just honoring a long-standing tradition of closing the court at 5:00 p.m.  Seems more like she was honoring a long-standing tradition of state-sponsored murder.

As my colleague Mark Bennett, author of Defending People, pointed out during a dedication ceremony for the Bill of Rights display at the Harris County Juvenile (In)justice Center, there is nothing in the Declaration of Indpedence, the Constitution or the Bill of Rights about judicial economy or moving criminal dockets along. 

If our elected officials are so callous that closing an office on time is more important that the rights of a condemned citizen, we are in serious trouble.

The first rule of shoveling

Roland Burris, the embattled junior senator from Illinois is facing more problems today as a result of his clarification of previous testimony he gave under oath to an Illinois state committee that was investigating whether or not to impeach now-former Governor Rod Blagojevich.

In a new affidavit made public over the weekend, Sen. Burris stated that he had been solicited for campaign contributions to the ex-governor -- a statement that contradicted testimony he gave to the state panel.

Whether the clarification resulted from Sen. Burris' review of his testimony to the state committee or from his fear that conversations between he and the ex-governor were taped by the FBI remains to be seen.

Maybe the senator forgot that it's easier to tell the truth in the first place because then you don't have to remember all of your lies.

Certainly Sen. Burris disregarded the first rule of shoveling -- when you're in a hole, stop digging.

You call this an intelligent waiver?

Down in Galveston County, the misdemeanor judges are fond of telling citizens appearing before the court for the first time that they have three options: they can hire an attorney, request an appointed attorney or talk to the prosecutor about their case.

Of course it's done in such a casual manner that most first-timers have no idea what their rights are nor what they're being asked to waive.  Typically the judge will inform the citizen that they have been charged with either a Class A or Class B misdemeanor and tell them the range of punishment. Then the judge gives them the options.

At no time does the judge inform the citizens that the Sixth Amendment to the U.S. Constitution affords them the right to counsel, the right to trial by a jury of their peers and the right to confront the witnesses against them. At no time does the judge inform the citizens that the Fifth Amendment affords them the right to remain silent or that anything they say to the prosecutor can, and probably will, be used against them. At no time does the judge inform the citizens of the protections against unreasonable search and seizure afforded them by the Fourth Amendment. 

In short, at no time does the judge give the citizens all of the information they need to make an informed decision about how to handle their case.

I was recently retained to obtain post-conviction relief for a citizen who pled guilty to driving while intoxicated as a result of a breath test result that has since been ruled invalid. He pled on his first court appearance without ever having consulted with an attorney. He pled based on statements made to him by the prosecutor. He pled without having seen the formal charge against him, reading the offense report, examining the breath test slip and maintenance records, or watching the video. In short, his plea was the result of fear and ignorance, not a knowing and intelligent waiver of his basic constitutional rights.

The driver in motion

Contrary to popular belief, most DWI arrests don't start off with bad driving behavior. 

In its brochure The Visual Detection of DWI Motorists, the National Highway Traffic Safety Administration (NHTSA) lays out 24 cues that police officers are instructed to look for in determining whether a driver might be intoxicated.

Those 24 cues are:

• Weaving (within a lane),
  
• Weaving across lane lines,
  
• Straddling a lane line,
  
• Swerving,
  
• Turning with a wide radius,
  
• Drifting,
  
• Almost striking a vehicle or other object,
  
• Stopping problems,
  
• Accelerating or decelerating for no apparent reason,
  
• Varying speed,
  
• Slow speed (10+ mph under the speed limit),
  
• Driving the wrong way on a one-way street,
  
• Slow response to traffic signals,
  
• Slow response/failure to respond to officer's signals,
  
• Stopping in lane for no apparent reason,
  
• Driving without headlights at night,
  
• Failure to signal,
  
• Following too closely,
  
• Unsafe lane change,
  
• Illegal turn,
  
• Driving off the road,
  
• Stopping inappropriately in response to officer,
  
• Inappropriate or unusual behavior, and
  
• Appearing to be impaired.
  

In my experience, most drivers are stopped either because they're speeding, have a broken headlight or taillight or they didn't signal a lane change.

Speeding, as the officer will have to concede, is not recognized as a common or reliable initial indicator of impairment. Likewise, an equipment violation has nothing to do with whether or not a motorist is intoxicated. The same goes for failure to signal lane changes; that traffic law is observed far more in the breach than in the observance.

But what do they all have in common? They are all traffic code violations, and according to Texas courts, it doesn't matter why the officer stopped you, as long as he had reason to believe that you violated a provision of the traffic code.

Out of the mouths of babes

This past Wednesday was Donuts with Daddy at my oldest daughter's school for the kids in pre-kindergarten and pre-school. The children made cardboard cut-out ties with fabric for their dads to wear. Earlier in the week the teacher asked each of the kids some questions about their fathers. Once we were all in the classroom eating our donuts, she called up each student and his/her father and read what the student said.

Some of the kids said their dads worked in an office, worked on the computer or worked for money. When the teacher asked my daughter what I did, my daughter told her that I was an attorney who helped get people out of jail.

At that moment, I felt very proud both of my daughter and what I do for a living.

As criminal defense attorneys we don't defend criminals. We defend the Bill of Rights. We defend the right of all of us to live our lives free from the oppressive arm of the government. But, we also help people. We help the families of those accused of criminal actions. People come to us with their hands outstretched because they have nowhere else to turn. They come to us at their moment of greatest vulnerability.

E-6

Miguel Tejada has just learned a lesson the hard way. 

Yesterday the Astros shortstop pled guilty in a Washington, D.C. federal court to a misdemeanor charge of lying to congressional staffers in 2005. Mr. Tejada faces up to one year in jail when he returns for sentencing on April 26, 2009.

While Congress has the power to conduct hearings and to subpoena witnesses to appear at those hearings, Congress cannot compel anyone to testify. Any person subpoenaed to appear before Congress can refuse to answer questions thanks to our Fifth Amendment right to remain silent. For whatever reason, Mr. Tejada decided to answer questions and he decided to answer them falsely.

Had he refused to answer questions he may have looked bad in the public eye, but he would not have faced charges of giving false testimony and he would not be walking around today as a convicted criminal.

See also:

• Miguel Tejada pleads guilty to lying to Congress (Sports Illustrated)
  
• Tejada apologizes after guilty plea (Washington Post)
  
• '02 AL MVP Tejada guilty of misleading Congress (Yahoo! News)
  
• Tejada apologizes after guilty plea (mlb.com/Astros.com)
  

A baker's dozen

Now I wasn't a math major in college, but I think I know the difference between twelve and thirteen. Apparently that wasn't the case for the bailiff in the 351st State District Court in Harris County yesterday.

A bailiff allowed a thirteenth juror, a dismissed alternate, to participate in deliberations in the trial of Charles Mapps, accused of murdering his girlfriend, Roseann Siddell. The error became apparent when thirteen jurors sat in the jury box to deliver the verdict.

So, not only did the bailiff get it wrong, neither the prosecutors, nor defense counsel nor the judge realized that thirteen people were sitting in the box and left together to deliberate. Just what were all those extra sets of eyes watching?

State District Judge Mark Kent Ellis, the lone Republican to survive the November general election, was forced to declare a mistrial moments after the jury rendered a guilty verdict.

Mr. Mapps will be retried in May.

See also:

• KTRK-TV report and footage.
  
• The Houston Chronicle's account.
  
• AP wire service story.
  

Tulia, Texas

What happens when you mix a dying Panhandle town, racism and the threat of drugs? You get Tulia, Texas.

I just finished watching Cassandra Hermann and Kelly Whalen's documentary on PBS' Independent Lens and, even though I folowed the story as it happened, I was amazed at HOW it happened.

As Amarillo criminal defense attorney Jeff Blackburn said "Our system of justice gets corrupted whenever we declare war against something."

In 1999, with federal grant money in place, Swisher County jumped headlong into the War on Drugs by hiring Tom Coleman, who was under indictment for theft in Cochran County, as an undercover officer in the Panhandle Narcotics Task Force. Mr. Coleman's uncorroborated testimony led to the indictment of 46 citizens, most of whom were black. This in a town of 5,000.

Among those indicted was Freddie Brookins, Jr., (thanks, Grits, for the correction) a young man without a criminal record. Mr. Brookins proclaimed his innocence and demanded a jury trial. Based on Mr. Coleman's testimony, the jury sentenced Mr. Brookins to 20 years in prison for distribution of cocaine.

Seven other citizens demanded jury trials and they were all convicted and sentenced to terms from 20 to 99 years. Based on those trials, the remaining defendants pled guilty in exchange for shorter sentences or probation.

During the middle of the operation an arrest warrant was issued by Cochran County where Mr. Coleman had been indicted. Swisher County gave Mr. Coleman the benefit of the doubt and attempted to sweep the matter under the rug.

Thanks to the tireless efforts of Mr. Blackburn and attorneys from the NAACP, State District Judge Ron Coleman released the imprisoned citizens on personal bonds in the summer of 2003. Two months later, Governor Rick Perry pardoned them.

Tom Coleman was subsequently convicted of perjury in January 2005, but unlike those whose lives he wrecked, he was given probation by a Lubbock jury.

For those who complain that their fellow citizens are getting out of criminal cases on "legal technicalities," those "technicalities" are the due process rights that we have enshrined in the Bill of Rights - the most revolutionary document yet produced.

Speaking...and learning

This morning I had the pleasure of speaking to a group of immigrant and Spanish-speaking parents at a local elementary school about our basic legal rights following an arrest.  The parents are part of a program in which they learn the material their children are learning so that they are in a better position to help their children with schoolwork.

I spoke about the right to remain silent, the right to counsel, the right to trial by jury, the right to confront the witnesses against you and the right to reasonable bail. These are all rights and concepts we take for granted everyday. My audience didn't take them for granted -- they weren't aware of most of their rights.

It was an eye-opening experience for me.

I encourage each of my attorney colleagues to take advantage of opportunities to speak to community and school groups.  Sure, it's a great marketing tool, but it may also lead to a greater appreciation of those rights embedded in our historical DNA.

A-Roid does the right thing

Alex Rodriguez did the right thing today by admitting he used performance enhancing drugs between 2001-2003.  All he had to do was look at the debris on the side of the road to realize that the American people are a lot more forgiving if someone just comes clean and 'fesses up.  

Andy Petite understood the game.  He admitted he used human growth hormone, made an excuse and asked his fans for forgiveness.  

Barry Bonds and Roger Clemens decided to deny the allegations and proclaim their innocence. Look where it got them - in the crosshairs of a federal investigation.

Daniel Solove blogs about why innocent citizens are punished more harshly than the guilty in Concurring Opinions.  There are a number of reasons why - the federal sentencing guidelines reward citizens who "accept responsibility" for their actions, courts impose "trial taxes" on citizens who insist on their right to trial and parole boards look upon inmates who deny culpability more harshly than those who don't.

Forensic "science" under fire

According to the New York Times, a report to be issued this month by the National Academy of Sciences will be a "sweeping critique" of many forensic methods, such as fingerprint analysis, firearms identification, bite mark and blood spatter analysis, used in crime labs across the country.

According to a draft copy of the report, these analyses often are conducted by poorly trained lab workers who then testify to exaggerated accuracy of their methods. The report will call on Congress to establish a federal agency to ensure the independence of forensic analysis, most of which is conducted in labs under the control or authority of law enforcement agencies.

I'm sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It's going to be big. -- Unnamed source

The F.B.I. had to shutter its bullet identification program after the pseudo-science behind the analysis was discredited. The F.B.I. was forced to notify hundreds of citizens who may have been convicted wrongfully as a result of the "evidence."

The Innocence Project turned over the results of a study performed on the trial transcripts of 137 convictions that were later overturned. In 60% of those cases, false or misleading statements were made regarding blood, hair, bite mark, shoe print, fiber and fingerprint analysis.

According to Stanford University scientist Donald Kennedy, who helped choose the authors of the report, the National Institute of Justice, the research arm of the Department of "Justice," refused to finance the study -- because they knew what it would conclude. Congress later voted to provide $1.5 million to fund the project.

"My hope is that this report will provide an objective and unbiased perspective of the critical needs of our crime labs." -- Sen. Richard Shelby (R. Alabama)

Here are a few examples of the sad state of forensic scientific analysis:

• The H.P.D. Crime Lab was shuttered due to a series of scandals. An independent auditor authored a report in 2007 severely criticizing the practices and procedures followed by the lab.


• Dee Wallace, a contractor with the Texas D.P.S., who testified in support of the state's breath test program falsified documents regarding maintenance work she never performed on the machines under her control. The Galveston County District Attorney's Office recently had to mail out notices to over 2,000 citizens whose DWI convictions may have been tainted by Ms. Wallace's criminal acts.


• Forensic "scientist" Joyce Gilchrist who was fired by the Oklahoma City Police Department after it came to light that she faked test results, falsified reports, lied on the witness stand and withheld exculpatory evidence.

To her credit, Harris County District Attorney Pat Lykos has called for the creation of a regional crime lab independent of law enforcement.

As long as forensic analysis is conducted at "crime labs" operated by law enforcement agencies, there will be pressure on analysts to make their findings and conclusions fit the "facts" as determined by the police. Until these labs are divorced from law enforcement, their findings and conclusions will be under suspicion.

DNA testing clears Texas man who died behind bars

Travis County District Judge Charles Baird has ordered the posthumous expunction of Timothy Cole's record. Mr. Cole died in prison while serving a sentence for a rape he did not commit. Judge Baird called the exoneration the "saddest case" he'd ever handled.

Mr. Cole, a student at Texas Tech with no criminal record, was charged with and convicted for the rape of fellow Texas Tech student Michele Mallin in 1985. Mr. Cole rejected the state's offer of probation in exchange for a guilty plea and refused to confess to the crime before the parole board. He died behind bars in 1999 as the result of complications from asthma.

Assuming that Mr. Cole received a fair trial, fairness does not equate to correctness. Juries get things wrong. It's yet another reason to question elected officials who have toiled to limit the right of inmates to seek post-conviction relief.

DNA tests conducted in 2008 linked inmate Jerry Wayne Johnson to the crime. Mr. Johnson testified in court on Friday that he was the rapist. He apologized to Ms. Mallin and to Mr. Cole's family. Mr. Johnson's attempted confession in 2001 was discarded because the court required physical proof of his involvement in the crime before anyone would consider the exoneration of Mr. Cole.

Ms. Mallin picked Mr. Cole out of a photo array. Of the six photos in the array, five were mug shots and one was a polaroid of Mr. Cole.

Mr. Cole's family, The Innocence Project and Ms. Mallin have all asked that Mr. Cole's name be cleared.

"No person deserves what that man got. He could have been a father, he could have been a grandfather right now." -- Michele Mallin

This tragic case brings up so many questions. Why wasn't the rape kit tested before Mr. Cole was tried? How reliable is eyewitness testimony? How much influence does the make-up of a photo array or lineup exert on the eyewitness or complaining witness? And, biggest of all, how many other innocent men and women are there locked behind bars in Texas?

See also:

• National Public Radio's coverage (Feb. 5, 2009)


• Grits for Breakfast (July 1, 2008)


• StandDown Texas Project (Feb. 4, 2009)


• Houston Chronicle (Feb. 6, 2009)


• Interview given by Judge Baird to PBS Frontline about the Roy Criner case

Municipal courts taken down by virus

The City of Houston Municipal Courts shut down this afternoon due to a computer virus that prevented judges from accessing case records. I don't know how anybody figured out anything was wrong because the computer system was already slow and cumbersome due to a data management program that was inadequate at installation.  

The courts will be closed for at least two days while outside technicians attempt to remove the virus from the system.

On the way to the Fort Bend County courthouse

Took this shot with my camera phone driving up 8th Street in Richmond, Texas on my way to the Fort Bend County courthouse this morning.  Apparently there's no leash law for chickens in Richmond.

Spring Break, no refusal-style

Got word from a source inside the Houston Police Department that they will be running a "No Refusal Week" beginning on Friday, March 13, 2009 and continuing through Sunday, March 22, 2009. The campaign will focus on the Kingwood area and will involve law enforcement agencies from Montgomery County as well.

I don't know at this time whether the campaign will be county-wide or just in the Kingwood area. HPD is also in the process of training new officers for the DWI task force and is expected to double-up officers in the upcoming weeks to prepare them for the "No Refusal" campaign.

Waiting on an offense report...

I walked into the courtroom for County Court at Law No. 1 on the 8th floor of the Harris County Criminal (In)justice Center this morning on a first appearance on a "total refusal" DWI this morning all atwitter at the thought of being handed a copy of the offense report upon request. After all, that's what Harris County District Attorney Pat Lykos promised during her campaign.

During a candidate forum at South Texas College of Law on February 19, 2008, the following exchange took place:

Mr. Blow-dried Anchorman: "Would you implement a policy mandating that defense attorneys be allowed to photocopy all prosecution documents to which they have access, Judge Lykos?"  

Judge Lykos: "Yes, in fact the office should copy it for them and that way if there is any information in there that may endanger a witness, it can be redacted. But, yes, it should be supplied to them. That's justice."

Now I would first like to point out how very impressed I was with how Mr. Blow-dried Anchorman was able to word the question without letting it end with a preposition. I'm also impressed he was able to say words like implement. 

I would also point out that there was no mention in Ms. Lykos' response to how long it would take to implement her policy.  From her words it would appear that she felt justice demanded that criminal defense attorneys be given copies of offense reports - and, to borrow a phrase - justice delayed is justice denied.

So, did I get my copy of the offense report(s) filed against my client? 

Of course not. I asked the assistant prosecutor for my copy and she told me they didn't give out copies of offense reports. I told her that her boss announced during her campaign that she would give copies of offense reports to attorneys. She told me that the office policy was that no copies of offense reports would be provided. I asked her why that was the policy. She told me that she didn't know and that it wasn't her place to question office policy.

Well, to paraphrase Miami criminal defense attorney Brian Tannebaum, if a prosecutor can't make decisions on her own, then she's just a clerk.

Now I was curious to find out what the policies were in different jurisdictions. I knew that criminal defense attorneys weren't even allowed to look at offense reports in Williamson County (Texas) until the officer testified at trial.  On the other hand, both Galveston County (Texas) and Jackson County (Texas) allow criminal defense attorneys to make photocopies of offense reports.

Jeff Alford, a criminal defense attorney in Western Kentucky, told me that the prosecutors he deals with have an open file policy and that he gets everything in the file -- except their notes.

Trace Rabern, a criminal defense attorney in New Mexico, says that the state has an open-file policy, but "that only gets you what they know." She was not too comforted by that.

I would like to hear more about the policies in other jurisdictions and the reasoning (if any) behind those policies.

The coming prison state

I came across an interesting article in The Champion about the need for parole in our prison systems. Mark H. Allenbaugh and Mark P. Rankin found some numbers in the Bureau of Justice Statistics that made me shake my head (violently).

In 1980, per capita state spending on prisons was $44.51. That number increased to $128.78 in 2000 - an increase of 189%. At the same time, per capital state spending on education in 1980 was $160.72 and increased to $212.23 in 2000 - an increase of only 32%. According to the authors, if those trends continue, in 2010 per capita state spending on prisons will increase to $370.00 while per capita state spending on education will only increase to $242.00.

Texas ranks third in per capita growth in prison spending and 20th in per capita growth in education spending since 1980.

The United States already has the highest incarceration rate in the world (762 per 100,000 residents). The incarceration rate in the Lone Star State has increased from a little over 156 per 100,000 in 1980 to 779 per 100,000 in 2000.

Something is fundamentally wrong when a nation as prosperous as the U.S. spends money on incarcerating our citizens at a faster rate than we spend educating our kids.

As they said in the old Fram filter commercial: You can pay me now (education) or you can pay me later (prison).

Do you feel any safer?

See also:

• Mother Jones' Special Report: Debt to Society
  
• Bureau of Justice Statistics Bulletin (Rev. 7/2/08)
  

Is innocence a bar to execution?

This just in...the State of Texas has decided that executing an innocent citizen is, after all, a violation of the Eighth Amendment.  

Since 1992, the official stance of Texas (and the U.S. Supreme Court) was that (f)actual innocence is not a bar to execution.  In arguments before the U.S. Supreme Court, assistant Texas Attorney General Margaret Griffey argued that it was not a violation of the Eighth Amendment for Texas to execute a man they knew was innocent.

Now, in response to a question from Houston Chronicle columnist Lisa Falkenburg, Jerry Strickland, a spokesman for the Attorney General's Office, stated that executing an innocent citizen would be a "miscarriage of justice."

Of course, just last month the state argued against Larry Swearingen's claim of actual innocence before the 5th Court of Appeals on the grounds that he had missed the deadline to file his claim.

So, is it okay to execute an innocent man or not?

See also:

• Innocent plea needs court hearing (Houston Chronicle, Jan. 26, 2009)
  

What's good for the goose...

According to a review of public records conducted by the Austin American-Statesman, public officials were almost unanimous in their refusal to submit breath or blood samples when arrested for driving while intoxicated. At the same time, about half of the general public likewise declined the tests.

Among those public officials who refused were State Rep. Mike Krusee of Williamson County, the legislator responsible for the DPS surcharge program. The Williamson County Attorney later dismissed the DWI charge against Rep. Krusee.

"I'd always heard from attorneys that you should refuse," Krusee said recently when asked about his arrest.

Tarrant County District Judge Elizabeth Berry also refused a breath test after her November arrest for driving while intoxicated. In that case the police obtained a warrant for a forced blood draw. Just last month a judge suppressed the results of the blood test due to a faulty warrant. Her case was dismissed. 

In 2001, State Sen. Gonzalo Barrientos, who lobbied for increasing the length of suspension for drivers who refused to submit to breath or blood tests, was arrested for DWI. Not surprisingly, Sen. Barrientos refused to blow.

Also among those arrested was Houston's own State Rep. Harold Dutton. Rep. Hutton refused comment as his case was still pending.

Without chemical proof of drunken driving, prosecutors must make a case solely on a police officer's observations — the driver's breath smelled of alcohol, his speech was slurred, he could not walk a straight line — that are readily disputed in court. And thanks to TV shows like "CSI," juries tend to expect forensic evidence of intoxication. -- Clay Abbott (TCDAA)

The Texas County and District Attorneys Association, surprisingly enough, would like to see mandatory blood draws in the event a driver declines to blow into the breath test machine. Of course the TCDAA would also like to declare open season on the Fourth, Fifth and Sixth Amendments to eliminate those pesky little "technicalities" such as the prohibition on unreasonable search and seizure, the right to remain silent and the right to counsel.

If the politicians responsible for this war on our rights and liberties are smart enough to refuse the breath test, shouldn't you?

See also:

• A little professional courtesy? (Jan. 23, 2009)
  
• Texas judge's blood-alcohol test inadmissible (Jan. 23, 2009)
  
• Evidence suppressed in Tarrant judge's DWI case (Jan. 22, 2009)
  

A modest proposal

I had a conversation with a prosecutor a couple of weeks ago regarding the way first-time DWI's are handled in Texas.  For those of you who don't know, the Harris County District Attorney's Office has a longstanding policy of not reducing DWI's.  However, head south down the Gulf Freeway and Galveston County prosecutors are more than happy to reduce a DWI if you can give them a good reason.

For most citizens charged with driving while intoxicated, that case will be the only time they ever set foot in the criminal courthouse.  The humiliation of being arrested, the inconvenience of having to go to court and the expense of hiring an attorney and paying fines is more than enough to dissuade most rational people from getting behind the wheel after drinking too much. 

So why do we insist on tarring them for life with a criminal conviction? The prosecutor and I agreed that the law was ridiculous and needed to be changed.  His solution was to allow a citizen charged with his first DWI to receive deferred adjudication for that offense but, should he pick up another DWI charge, the new case would be prosecuted as a second DWI.

I like the carrot-and-stick philosophy behind his idea because I think it takes into account the fact that we have all (most of us, at least) gotten behind the wheel of a car when we shouldn't have -- but that most of us didn't get caught.

Super Sunday redux

In the end, today's game did come down to a matchup between the Steeler offense and the Cardinal defense. After holding the Steeler offense in check for much of the second half, the Cardinal defense couldn't stop the Steelers on the game-winnning drive.

Super Sunday

In analyzing today's Super Bowl, most commentators have concentrated on the showdown between the Cardinal offense and the Steeler defense. I predict the outcome will be determined by how the Steeler offense and Cardinal defense perform against each other.

In most confrontations, be they on the battlefield, on the gridiron or in the courtroom, the strengths of the opponents tend to cancel each other out and the winner is determined by the victor's secondary strengths or arguments.

When crafting the story of your case, you need to list all of the strengths and weaknesses of both your case and the prosecutor's case. The better you develop your secondary strengths, the better prepared you will be at trial.