These are the musings, ramblings, rantings and observations of Houston DWI Attorney Paul B. Kennedy on DWI defense, general criminal defense, philosophy and whatever else tickles his fancy.
Saturday, May 30, 2009
The move from hell
Friday, May 29, 2009
A sensible DWI policy in Harris County
“So, we’re going to have a carrot-stick approach. It’ll be pretrial disposition if you will, or deferred prosecution — they’re put under supervision, the DWIs will have the inter-locks, they will not lose their licenses, they will go to work, they will undergo the drug treatment, the urinalysis and everything else. And if they’re successful, the charges are not filed." -- Pat Lykos, Harris County District Attorney
Harris County defense bar defends its own
The Harris County Criminal Lawyers Association, Texas Criminal Defense Lawyers Association and Fort Bend County Criminal Defense Lawyers Association announce that they are beginning an immediate investigation into whether members of the Harris County District Attorney's Office committed constitutional violations of the Sixth and Fourteenth Amendments, committed the crime of official oppression, violated the special ethical duties applicable to prosecutors and/or violated the mandatory ethical obligations applicable to all lawyers in making public comments during the course of a pending capital murder trial that appear to be calculated to influence the ongoing proceedings in material and detrimental ways that are unrelated to the issues at the trial, appear to be defamatory with respect to trial counsel, and serve no legitimate or valid purpose, but rather only increase the likelihood that the accused is denied a fair trial. The remarks and their timing were inappropriate, improper and subject to the sternest possible condemnation.
- Fratta's attorney may face inquiry (Houston Chronicle, 5/28/09)
- Nude photos take center stage in court (KTRK-TV, 5/28/09)
- Lawyer defends forwarding admirer's revealing photo to inmate (ABA Journal, 5/29/09)
"Good defense demoralizes the opposition while raising the confidence of the team or individual under attack." -- Shelby Lyman
"...the defender may be actually quaking under the table, but the better and more determined the moves he makes under duress, the bigger and tougher he looms behind the board."
Wednesday, May 27, 2009
Right to counsel? What right to counsel?
"Any criminal defendant learned enough to order his affairs based on the rule announced in Jackson would also be perfectly capable ofinteracting with the police on his own." - Justice Scalia, Montejo v. Louisiana
"The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free . . . .” Herring v. United States, 555 U. S. ___, ___ (2009) (slip op., at 6). Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” Cobb, supra, at 174–175 (KENNEDY, J., concurring), but alsodeters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain unco-erced confessions is not an evil but an unmitigated good.” McNeil, 501 U. S., at 181. Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift." -- Justice Scalia, Montejo v. Louisiana
Tuesday, May 26, 2009
Another Minnesota court orders the release of the Intoxilyzer's source code
It all adds up to incompetence
Stephen Bright, an expert in capital case representation who has taught at Yale and Harvard law schools and reviewed the Chronicle’s findings, said death penalty lawyers have no business handling nearly 400 clients in one year. “That’s way too many cases and would not leave time for any other cases, particularly capital cases.”
Godinich took three capital appointments in less than one 60-day period in 2008. One client was found incompetent to stand trial after drinking toilet water, disrobing and claiming he was Jesus Christ II while in the Harris County jail; another was a 15-year-old who pleaded guilty to felony murder charges and accepted a life sentence without possibility of appeal; the third hired another lawyer.
Godinich has agreed to take as many as 10 simultaneous capital cases over the past five years, though only a few were death penalty cases.
Even more disturbing is the line that "[s]ome felony cases can be resolved in minutes..." It is impossible to investigate a felony case in "minutes." It is impossible to determine whether there are any legal issues to litigate. It is impossible to analyze the factual evidence or to interview witnesses in "minutes." The only thing that's possible to do in "minutes" is to parade a client in front of a judge and have him branded a felon for life.
Godinich, who juggles federal cases and misdemeanors along with his 360 felonies, has refused interview requests. But in a letter to the Chronicle, he defended his indigent defense record, saying he aims to defend his clients “to the best of my ability.”
“That entails working seven days a week and investing countless hours in preparation to ensure that my clients receive their rightful due process,” Godinich wrote. “ It is not an easy job, but it is work that is challenging and has given me enormous personal satisfaction. That is why my clients know who I am and depend on me to stay invested in the process.”
One of his hundreds of Harris County clients, Phillip Hernandez, has been awaiting trial for 18 months on child sexual abuse charges and claims Godinich has never visited him in jail to discuss his innocence claim. Hernandez’s pre-trial hearing was scheduled earlier this month, but the inmate said he learned it had been postponed at the last minute from a bailiff. Godinich did not attend court that day, records show.
Thursday, May 21, 2009
Heading out to God's Country
Wednesday, May 20, 2009
The eyes have it
The DNA effect
Tuesday, May 19, 2009
No refusal weekend to premiere on Lake Conroe
"Position is the irreducible bedrock of our lives. We spend our years positioning ourselves educationally, financially, socially and intimately."
"From good positions good things flow, from bad ones continuous dismay and trouble."
"The fog of war allows miraculous victories with inferior resources and force. Both Napoleon and Robert E. Lee were geniuses at reading a battlefield configuration, marshaling lesser forces at vulnerable points and then routing the opposing army."
Monday, May 18, 2009
Seeing emotion through speech
"Correct interpretation of emotion in the voice is highly important - especially in a modern environment where visual emotional signals are often not available. We demonstrated that the spatial pattern of activity within the brain area that processes human voices contains information about the expressed emotion." -- Dr. Thomas Ethofer.
Sunday, May 17, 2009
Which one doesn't belong?
Friday, May 15, 2009
Software bugs may compromise breath test machine
In the New Jersey litigation, John J. Wisniewski of Base One Technologies analyzed the source code in Draeger's Alcotest 7110 Mk III C and his conclusions are eye-opening, to say the least.
Testing the Alcotest 7110Mk III Source Code uncovered 24 major defects. For theThe study concluded that the Alcotest software would not pass industry standards in the U.S. for development and testing because Draeger refused to make the code available for audit. I find it very disconcerting that the companies that manufacture these breath test machines that are used to brand our fellow citizens as criminals, claim they cannot release the source code because it is a trade secret.
purposes of this overview,we have identified 9 defects with thegreatest impact on the instrument test results, and the validity of those tests.
He also stated that the Alcotest software had yet to be tested completely. The program contains more than 45,000 lines of code of which 3,200 lines are used to make decisions. The report states that the lack of use of industry coding standards prevented testing of critical paths in the software and prevented errors from being removed.
The source code also prevents the machine from detecting catastrophic problems and shutting itself down. As a result, should the machine encounter these conditions, the results of breath tests become unpredictable.
The Alcotest code also lacks the ability to determine whether motors or valves controlled by the software are functioning properly. As a result, the machine assumes its internal components are working correctly.
The Alcotest conducts its diagnostic routine on the Analog/Digital converter during the data measurement cycle -- not before the measurement is taken. In the event of a diagnostic failure, the machine will substitute default values.
The machine assumes there is no airflow through the machine at the beginning of a test. The machine takes a measurement and then uses that measurement as a baseline. The software is incapable of determining if the amount of air flow detected at that point indicates a problem. The machine also substitutes a default value in the event the measurement fails. So, if the machine was off at inception, it will continue to be off everytime is has to revert to a default value.
While the Alcotest will detect measurement errors, it will only report them if they have occurred a certain number of times consecutively.
The software doesn't guard against the entry of incorrect global values in other memory locations. As these global values are very important in the Alcotest machine, any errors in these global values can cause great variations in breath test scores.
There are also timing problems as the code is written in C and not assembly language. As a result, there may be delays in operation of the machine during a test.
Base One's testing also revealed:
the software has to beconsidered unreliable and untested, and in several cases it does not meet stated requirements. The source code supplied has creation dates and modification dates from 1993 to 1997, but the coding architecture, style, organization, and modification documentation (audit trail) more closely resemble the software principles used in the 1970’s and 1980’s.The testing also found instances in which, instead of deleting unnecessary code, programmers merely disabled it by means of comments.
The study concluded that:
As a matter of public safety, the Alcotest should be suspended from use until the softwarehas been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.No one has yet subjected the source code of CMI's Intoxilyzer 5000 to the scrutiny faced by the Draeger Alcotest, but I suspect we would see some of the same problems in the code running Texas' breath test machines as well. Is this really what we want determining whether our fellow citizens should be branded criminals for life?
- Buggy breathalyzer code reflects importance of source review (Arstechnica.com, May 15, 2009)
There oughtta be a law
Thursday, May 14, 2009
Could red light cameras be getting the red light?
If passed, the changes would go into effect on September 1, 2009.
The legislation, H.B. 2639, would amend Section 543.2035 of the Texas Transportation Code to read:
A local authority may not implement or operate an automated traffic control system with respect to a highway or street under its jurisdiction..."Automated traffic control system" refers to a system made up of photographic devices capable of recording images of a car's license plates if that car is not in compliance with a traffic control device.
According to the committee report, concerns were raised over whether these camera systems were installed by cities such as Houston to make the streets safer or to increase revenues. The bill's supporters also find it problematic that red light camera violations are treated as civil matters, therefor limiting a motorist's right to appeal.
Civil rules of discovery can help you in a criminal case
Wednesday, May 13, 2009
What's that blinking arrow for anyway?
An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn. -- Tex.Transp.Code (1999) Sec. 545.104(b)
Driving under the influence of drugs
Tuesday, May 12, 2009
|1.||a belief or judgment that rests on grounds insufficient to produce complete certainty.|
|2.||a personal view, attitude, or appraisal.|
|3.||the formal expression of a professional judgment: to ask for a second medical opinion.|
|4.||Law. the formal statement by a judge or court of the reasoning and the principles of law used in reaching a decision of a case.|
|5.||a judgment or estimate of a person or thing with respect to character, merit, etc.: to forfeit someone's good opinion.|
|6.||a favorable estimate; esteem: I haven't much of an opinion of him.|
Monday, May 11, 2009
Oh how the mighty have fallen
Sunday, May 10, 2009
Avoiding the fear of defeat
Shelby Lyman is a noted chess author and commentator who pens a weekly column on chess. In his most recent column, Mr. Lyman writes about performance psychology.
Even between top grandmasters, a game often has to be retrieved or won numerous times as the advantage shifts, however slightly, from move to move.Chess teaches us that in our everday life, there is always a chance to regroup rather than admit premature defeat.
Thursday, May 7, 2009
Crime and sympathy
Baseball, hot dogs and female fertility drugs
A source said that the substance was HCG, human chorionic gonadotropin, which is prescribed to stimulate female fertility and testosterone production in men and to treat delayed puberty in boys. HCG is not classified as a steroid but was clearly defined as a banned performance enhancer according to the drug agreement between baseball and its players association. Banned substances can only be taken with prior knowledge and medical clearance from baseball's drug-program administrators. Such exceptions are known as Therapeutic Use Exemptions, or TUEs. The suspension is an indication Ramirez did not have a TUE for the substance.
Harris County Sheriff wants a new jail
Persistent problems at the Harris County Jail will cease only with the construction of a new facility, Sheriff Adrian Garcia said today after negotiating with state officials to keep the downtown lockup running despite its failure of a recent inspection.
Garcia appeared before the state Commission on Jail Standards to outline plans to address the problems that prompted inspectors to fail the jail after a visit in April, including broken intercoms that cut off communication between deputies and 90 percent of inmates held on two floors of one building.
It was the fourth time in six years that state inspectors failed the jail, which remains under federal investigation and faces local scrutiny over controversial deaths and access to medical care.
Garcia outlined short-term fixes, but stressed that construction of a new building for a detention system that already holds more than 10,000 people will be inevitable. Two years ago, before Garcia took office, voters narrowly rejected a $245 million bond referendum to build a 2,500-bed jail.
“Today is an indication of how pressing the need is,” Garcia said. “We are going to have to have a conversation about the future and make sure we don’t propose a jail that doesn’t meet the needs of the county.”
Wednesday, May 6, 2009
More wisdom from Texas Dolly
"I've built a reputation as an extremely aggressive player. And I don't ever want to lose that reputation. It's what enables me to pick up more than my share of pots."In most cases, my opponents are afraid to play back at me because they know I'm liable to set them all-in. So when they don't have a real big hand, they let go of the pot, and I pick it up. The accumluation of all those small pots is a big part of my winning formula. It's the bonus I get for playing the way I do, and it's the secret of my success."If I win ten pots where nobody has a big hand, ten pots with let's say $3,000 in them, I can afford to take 2 to 1 the worst of it and play a $30,000 pot. I've already got that pot covered thanks to all the small pots I've picked up. And when I play that big pot, it's a freeroll." -- Doyle Brunson, Super System 2
Am I missing something?
Today, as I waited in line to pick up a redacted copy of an offense report for a domestic assault case, I chatted with a colleague about the new policy and we both had a question to which no one has yet been able to provide a satisfactory, or for that matter, logical answer.
What is the purpose in redacting information from the offense reports?
In order to obtain a redacted offense report we are required to sign a confidentiality agreement in which we agree not to give a copy of the report to our client. However, we are permitted to review the unredacted copy of the offense report in the state's file and take notes. As these notes are attorney work product we can share them freely with our clients -- including the names and contact information for all witnesses.
Since we sign a confidentiality agreement, why redact any information from the reports? If the reports are going to be redacted, why require the attorney to sign a confidentiality agreement? Since we can take notes from the unredacted offense report and discuss that information with our clients, why bother with either requiring a confidentiality agreement or redacting the reports?
If anyone can figure out the logic in this policy, please leave your comments below.
Tuesday, May 5, 2009
A poker lesson from Texas Dolly
"Like me, all the top players know you have to be extremely aggressive to be a consistent winner. You have to bet, bet, bet, all the time. If I find somebody I can keep betting at and he keeps saying 'Take it, Doyle,' 'Take it, Doyle,' well, I'm going to keep pounding on him. I'm not going to let up. And that poor guy never will win a pot from me. He'll have to have the nuts (best possible hand) or the nerve to call me." --Doyle Brunson, Super System 2
"There's not a man alive that can keep leaning on me. I refuse to let somebody keep taking my money, and all the other truly top players are the same way. An aggressive player might do it for a while. But at the first opportunity I get, I'm going to take a stand and put all my money in the pot.
"It's like that little boy who keeps sticking his head up and keeps getting slapped all the time. Well, sooner or later he's not going to stick his head up anymore. So if a guy keeps going on and on and keeps pounding on me, then me and him are fixing to play a pot." -- Doyle Brunson, Super System 2