The move from hell

On my way out to Canyon Lake last week, my wife called movers for quotes on my office move. We found one we liked (Mighty Man Movers) and booked them for a 1pm move on Friday.

All week long I returned to the office after putting my girls to bed so I could take care of all my paperwork and get the office packed. I left the office at 1:30am the night before the move. 

Friday morning broke and I headed down to Galveston to take care of a couple of matters and then rushed back to be at the office in time for the movers. Now I wasn't born yesterday and I know that afternoon moves never go off on time because the morning moves always take longer than planned. Friday was no exception. 

As I sat typing on my laptop in my office I got a phone call about 1:30pm telling me the movers were running late and that they expected to be at the office within the next 60-90 minutes. They were up off 290 and Highway 6. So I ran some errands.

I was back in the office by 3pm and still no movers. Then I got a call telling me they were on the way and asking for directions. Since they were on the Beltway I told them to get off on I-10 and come down to Chimney Rock. Easy, right?

Wrong. I called about 30 minutes later to find out where they were and the driver told me they were waiting for a tow truck to get them out of a parking lot on Westheimer and the Beltway. No one ever had a good explanation for why they were there -- and so the wait continued.

I decided that it was as good a time as any to run my computer equipment to the new office (since I didn't trust Larry, Curly and Moe) - so off I went. As I was putting boxes in the closet my phone rang. It was the movers. They were on the way to my office. I told them I would be back in 15-20 minutes. They assured me they were just around the corner.

Thirty minutes later I was back at the old office -- but no movers. Finally, about 6:15pm they made their way into the parking lot -- in a U-haul truck!?!?

About 45 minutes later everything was packed into the back of truck (and, yes I went back to double-check) and we were off to the Heights. Quite slowly, however, because apparently they had rented the 4-cylinder truck.

After what seemed like an eternity we arrived at the new office. I parked in the front lot and the movers stopped on the street. I ran to the back to make certain they could turn the truck around; but as I returned to the front of the house I heard a noise that a truck carrying all of my stuff shouldn't be making.

Larry, Moe and Curly had tried to back up the driveway and had managed to get the hitch stuck in such a way that the rear wheels of the truck were lifted off the ground. So there they are, blocking the entire width of the southbound side of Heights Boulevard. I didn't quite know what to do or say -- it was like watching a train wreck.

Luckily my wife and girls had arrived with take out from El Rey and we went inside and ate our supper while the Stooges tried to figure out who was on first. In the meantime they unloaded the truck at the foot of the driveway and began wheeling it to the back of the house.

I then had to supervise them while they moved my stuff into the new office because, believe it or not, the detailed diagram I provided them showing where everything went, was (apparently) a bit over their heads. Finally, at a quarter after nine (after getting the truck unstuck with the help of unidentified passers-by), the last of my stuff was in the office and I sent them out into the night to see if they could screw up another move.

I then hung around until a bit after 10 moving boxes around and putting my bookcase back together before heading over to Onion Creek for a (well-deserved) ice cold Shiner.

I'm just glad I can laugh about it now - because I certainly wasn't laughing yesterday.

A sensible DWI policy in Harris County

Today Harris County District Attorney Pat Lykos announced a new DWI strategy by which first-time DWI defendants will be eligible for pretrial diversion.

Under pretrial diversion, a person must complete a probation with conditions attached such as being required to install an interlock ignition device on their car, attending drug and alcohol counseling and undergoing random drug tests. Should they complete the probation successfully, the case will be dismissed without a plea being entered. The person would then be eligible to expunge all records of the case from his criminal history once the statute of limitations passed.

This differs from deferred adjudication in that a person who completes a deferred adjudication probation would have already entered a plea and is, therefore, only eligible to seek a petition for nondisclosure of records regarding that case to anyone outside of law enforcement.

Pretrial diversion also differs from deferred adjudication in that if a person is on pretrial diversion and runs afoul of the rules, he is back where he started with no penalty. If, on the other hand, a person on deferred adjudication messes up, he can be hauled back before the judge and sentenced to the full range of punishment -- regardless of what the original agreement was.

“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

Ms. Lykos' plan will reduce the number of people confined in the Harris County Jail and will enable those who wish to take advantage of the program the chance to help themselves.

Harris County defense bar defends its own

The Harris County Criminal Lawyers Association released the following press release yesterday...

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.

For more information see:

• 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)
  

Defense! Defense!

The best offense is a good defense.

That's true not only in the sporting arena but also in the well of the courtroom.

"Good defense demoralizes the opposition while raising the confidence of the team or individual under attack." -- Shelby Lyman

As chess guru Shelby Lyman points out in his weekly chess column:

"...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."

The same applies in the courtroom. Oftentimes you find yourself up against two prosecutors -- the one sitting at counsel table and the one wearing the robe. It takes a certain chutzpah to stand up and challenge either one in the heat of battle, but the harder you fight when backed into a corner, the more respect (and fear) you will reap down the road.

Regardless of the result, the very act of standing up to defend your ground is a glorious defense of the Constitution. 

Right to counsel? What right to counsel?

Earlier this week the United States Supreme Court took a whack at a citizen accused's right to counsel in its decision in Montejo v. Louisiana, 554 US ___, No. 07-1529 (2008).

Mr. Montejo was charged with first degree murder and an attorney was appointed for him at a preliminary hearing. Later that day police read Mr. Montejo his Miranda rights and asked him to accompany them on their search for the  murder weapon. Mr. Montejo agreed. During the trip, Mr. Montejo wrote a letter of apology to the victim's family that was introduced into evidence, over his objection, at trial. Mr. Montejo was convicted and sentenced to death.

On appeal to the Louisiana Supreme Court, Mr. Montejo's attorney argued that since counsel had already been appointed for Mr. Montejo at the preliminary hearing, the police violated his constitutional right to counsel by asking him to accompany them on their excursion and that, as a result, the incriminating letter should have been suppressed at trial. The state supreme court disagreed and upheld the conviction on the grounds that the right to counsel only attaches once a defendant has made a request for counsel -- and, since Mr. Montejo did not make such a request at the preliminary hearing, the right defined in Michigan v. Jackson, 475 US 625 (1986).

Justice Scalia, in the Court's opinion, wrote that Louisiana's interpretation of the law was impractical because about half the states will appoint counsel for an indigent defendant whether he makes a formal request or not. He also wrote that Mr. Montejo's position was untenable because the rule in Jackson was designed to prevent the police from badgering a defendant into changing his mind regarding his invocation of his right to counsel.

Justice Scalia argues that in Mr. Montejo's case, since he stood mute at the preliminary hearing there is nothing to indicate that he would be opposed to the idea of speaking to the police without the presence of counsel. He argues that by remaining silent, Mr. Montejo had obviously not yet made up his mind to invoke his 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

Of course, Justice Scalia is assuming that most criminal defendants are aware of the entire breadth of their constitutional protections.

"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

So now we are reduced to a balancing test when it comes to whether or not the right to counsel is to be observed. Silly me, I always understood our 5th and 6th Amendment rights were there to protect the individual against the overwhelming might of the state.

Ours is an adversarial system and one's basic protections should not be weighed against the inconvenience it would cause those seeking a conviction.

What do you think?

Another Minnesota court orders the release of the Intoxilyzer's source code

Today a Minnesota Court of Appeals reversed a lower court's decision to deny a request by a citizen accused of driving while intoxicated to examine the source code of the Intoxilyzer 5000EN.

Mr. William Robert Thompson was stopped by Minnetonka Police and requested to blow into the state's breath test machine. The machine determined Mr. Thompson had an alcohol concentration of .10.

Mr. Thompson challenged his license revocation asking the court to suppress the breath test result and to order the Commissioner of Public Safety to provide him with the machine's source code. Included in his request was an affidavit from Harley R. Myler, Ph.D., P.E. stating that without examining the source code, it would be impossible to determine whether the machine was operating properly at the time of Mr. Thompson's test. He also included two affidavits describing previous problems with the breath test machines used by Minnesota.

The Commissioner of Public Safety argued against the discovery request on the grounds that the state of Minnesota was involved in litigation against CMI (manufacturer of the Intoxilyzer) for breach of contract, breach of the implied covenant of good faith and fair dealing and copyright infringement.

The district court denied Mr. Thompson's requestt on the grounds that Mr. Thompson had failed to demonstrate that the source code was relevant to his defense. The court of appeals overturned the lower court's decision on the grounds that "the source code may reveal deficiencies in the accuracy of the Intoxilyzer 5000EN that would be relevant to a claim or defense..."

The tide is turning quickly on the "trade secret" defense used by CMI and the "it's not in our possession" defense used by prosecutors in DWI cases. The blueprint seems quite clear for obtaining breath test machine source code -- testimony from an expert regarding the need to examine the source to determine if the software functions correctly; evidence of machine malfunctions; case law from Kentucky, Minnesota and New Jersey where courts have ordered the state to turn over the source code; and, most importantly, a showing that an examination of the source code is relevant to the defense of the case.

It all adds up to incompetence

Today the Houston Chronicle reported that more than one-third of the attorneys appointed by Harris County judges to represent people charged with capital offenses accepted over 150 felony assignments per year -- the standard adopted by National Legal Aid and The Defender Association. The article highlights attorney Jerome Godinich, who has averaged more than 350 felony assignments a year!

Let's do the math. There are 52 weeks in a year and five working days in a week. That's a maximum of 260 days at the courthouse -- not counting holidays. That means that Mr. Godinich accepts, on average, at least 1.3 felony cases a day, every day. There is no way a competent attorney can provide meaningful representation to his clients working that type of case load.

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.”

The article also points out that judges have ignored their rules and doled out more than one capital assignment to an attorney within a 60 day period.

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.

Heading out to God's Country

This weekend my wife, girls and I are going on a well-deserved family vacation to the Texas Hill Country.

My reading fare will consist of Tipping Point by Malcolm Gladwell, an old James Bond paperback I shall pick at random and a book of Sudoku puzzles. It's possible there may be a book review come next week - but I'm not making any promises.

Have a wonderful and safe Memorial Day weekend.

The eyes have it

Arresting officers in DWI cases love to get on the stand and announce that your client exhibited all six "clues" in the horizontal gaze nystagmus (HGN) test and, as a result, it was a foregone conclusion that your client was intoxicated.

But wait just a second - even though this "test" is couched in scientific terms, the follow-the-pen show on the video is far from being either scientific or valid.

Nystagmus is defined by NHTSA as "an involuntary jerking of the eyes." NHTSA states that alcohol causes horizontal gaze nystagmus.

The American Academy of Opthamology defines the condition as "is an unintentional jittery movement of the eyes" that "usually involves both eyes and is usually exaggerated by looking in a particular direction."

So, for your police officer trained to diagnose eye conditions by another police officer, nystagmus is an indicator of intoxication. To a trained medical practitioner, however, nystagmus is a medical condition.

When an officer detects "nystagmus" someone is likely to be placed under arrest and hand-cuffed. When a trained medical practitioner detects nystagmus, on the other hand, he is going to conduct a thorough evaluation and will more than likely call in another specialist to examine the patient.

When an officer conducts the pen-and-eye test in the field, there are no controls for the effects of weather, lighting or traffic conditions. The officer must estimate the time for each pass of the pen and the distance the pen travels to the side. When a trained medical practitioner conducts an eye test to determine if nystagmus is present, the test is performed in a controlled environment with medical instruments by a doctor who went to medical school.

Finally, when an officer detects "nystagmus," he is looking for evidence to confirm his suspicion that the motorist is intoxicated. When a trained medical practitioner detects nystagmus, his job is to eliminate all possible causes until he can diagnose the underlying cause.

The scientific literature indicates a myriad of conditions responsible for nystagmus - from epilepsy to Parkinson's disease and from muscular dysfunction to head trauma. But, according to the police officer's diagnosis, the only cause for nystagmus of a driver being tested at the side of the road is alcohol consumption.

The DNA effect

Fearful that a jury will accept DNA evidence as definitive as a result of the so-called "CSI Effect?" 

New research indicates that your fears may be somewhat overblown. Jurors tend to be somewhat skeptical about the reliability of DNA evidence, but, when that evidence matches the defendant, guilty verdicts tend to follow.

Juror research demonstrates that the presence of DNA evidence tends to enhance the credibility of other evidence introduced during the trial. Thus we have the dreaded "feedback loop." We are then left with the question of which came first: jurors' reliance on DNA evidence to support a conviction or juror's reliance on the other evidence?

The studies also indicate that jurors give more weight to DNA evidence when it's couched in terms of percentages rather than ranges. In other words, a juror is more likely to accept the DNA evidence when the state's expert says there is a --% chance that the defendant committed the crime rather than there is a one in a -- chance that a person selected from the general population at random was present at the scene.

Given this, the way in which DNA evidence is presented at trial can affect the way in which a juror looks at the rest of the evidence presented.

Statistician anyone?

No refusal weekend to premiere on Lake Conroe

Montgomery County has announced a No Refusal Weekend for boaters on Lake Conroe this Memorial Day weekend. Assistant District Attorney Warren Diepraam (formerly of the Harris County D.A.'s Office) said that he believes this is a first in the United States.

Between 2004 and 2008, there were 57 arrests for boating while intoxicated

(BWI) on Lake Conroe (about an hour north of Houston), however few of those arrested were ever prosecuted. Now, armed with cameras on two Lake Patrol boats and four Texas Parks and Wildlife Department boats, the Montgomery County D.A.'s Office is warning boaters to beware.

Montgomery County is also looking to purchase an infrared camera to measure jerking in the eye (nystagmus) allegedly caused by the consumption of alcohol.

The county is looking to run No Refusal Weekends on Lake Conroe on both the Fourth of July and Labor Day weekends as well.

Position yourself

In chess, as in life, position is everything. 

Shelby Lyman notes that:

"Position is the irreducible bedrock of our lives. We spend our years positioning ourselves educationally, financially, socially and intimately."

We do the same thing when handling a case for a client - whether it be a DWI, a robbery, a divorce, a slip-and-fall or a speeding ticket. 

When someone walks through my door who's been arrested for DWI, the first thing we do is talk about the process. We talk about challenging the license suspension, we talk about the various options we have to resolve the case, we talk about the possible consequences 

of each. Then we talk about the arrest. Where did it happen? When did it happen? What are the driving facts? What did the officer do? What happened at the scene? What happened at the station?

When we go to court I get a copy of the video so that I can study it and so that, if necessary, I can have an expert study it as well. I then send my investigator to inspect the scene and speak to any witnesses listed in the offense report.

"From good positions good things flow, from bad ones continuous dismay and trouble."

I do this to set up our position on the case. Do we focus on the stop itself? The field sobriety tests? The breath test? The blood test? The attitude of the officer? Does the breath test result "agree" with the video? I want to be in the best possible position when it comes to fighting the state.

Lyman does note, however, that sometimes you can win from the lesser position:

"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."

Incidentally, both Napoleon and Lee were chess enthusiasts who were often found playing the game in their tents. But Lyman also notes that, with the exception of time pressure, "chess generals" don't have to contend with the "fog of war" as the board is open for all to see.

The same holds true (in large measure) at the courthouse. Build your position early, don't allow yourself to be boxed into a corner.

Seeing emotion through speech

Can your jurors see a witness' emotional state just by hearing them speak? According to scientists, they can, by observing brain activity, determine whether a person heard words spoken in anger, sadness, joy or relief.

A new study published in the journal Current Biology, posits that our brains are able to represent emotional information in speech by distinct spatial signatures. According to Dr. Thomas Ethofer of the University of Geneva (Switzerland), past studies focused on each point in the brain separately while this new study, using a technique known as functional magnetic resonance imaging (fMRI), looked at the brain as a whole.

"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.

Subjects listened to pseudowords spoken with five different emotions - anger, sadness, relief, joy and no emotion. Researchers scanned their brains using fMRI and then analyzed the overall spatial pattern in the brain's auditory cortex by use of multivariate pattern analysis.

Researchers claim they can classify each emotion against all other alternatives using these methods and say this type of analysis can help determine where these functions go wrong with those people diagnosed with pyschiatric disorders.

A special thanks to Dennis C. Elias, Ph.D. (@JuryVox on Twitter).

Which one doesn't belong?

From the old Sesame Street song -- "one of these things is not like the others, one of these just doesn't belong..." 

Can you spot the one that doesn't belong?

(a) Harris County Criminal Justice Center

(b) Harris County Family Law Center

(c) Harris County Juvenile Justice Center

(d) Harris County Civil Justice Center

Software bugs may compromise breath test machine

As previously noted here, courts in Minnesota and New Jersey have ordered the state to provide the source code that runs their breath test machines to defense counsel for independent testing. The defense bar has long hypothesized that these machines are unreliable at their core due to problems in the computer programs that "run" the machines.

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 the
purposes of this overview,we have identified 9 defects with thegreatest impact on the instrument test results, and the validity of those tests.

The 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.

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?

See also:

• Buggy breathalyzer code reflects importance of source review (Arstechnica.com, May 15, 2009)

There oughtta be a law

Isn't it a crime to deface a work of art?

Could red light cameras be getting the red light?

The Texas House of Representatives passed a bill Monday that would ban the use of red light cameras (click here to read previous posts about red light cameras) in the Texas. In order to become law, the bill must pass the Senate and be signed by Gov. Rick Perry.

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

Texas Rule of Civil Procedure 176. "Subpoenas"

176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:

a. state the style of the suit and its cause number;

b. state the court in which the suit is pending;

c. state the date on which the subpoena is issued;

d. identify the person to whom the subpoena is directed;

e. state the time, place and nature of the action required by the person to whom the subpoena is directed;

f. identify the part at whose instance the subpoena is issued, and the party's attorney of record, if any;

g. state the text of Rule 176.8(a); and

h. be signed by the person issuing the subpoena.

176.3(b) A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

Texas Code of Criminal Procedure, Article 39.14. "Discovery"

39.14(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies...

*   *   *   *   *

Tired of hearing the prosecutor tell you he can't produce the documents you requested because they aren't in his possession or under his control or custody? Then take advantage of the rules of civil procedure.

The Texas Rules of Civil Procedure provide for abundant discovery as the civil courts prefer not to have to deal with "trial by ambush." The rules provide tools for both plaintiffs and defendants to see all of the documents and evidence that will be presented at trial with the hope that this discovery will lead the parties to settle their disputes without the need for a lengthy trial.

These rules also offer the opportunity for criminal defense lawyers to "go in the back door" and obtain necessary evidence to defend their clients. Prosecutor tells you he doesn't have the sheriff department's inventory guidelines? Issue a subpoena to the sheriff's department for those procedures. Prosecutor won't produce a video tape or audio tape because he says he doesn't have it? Subpoena it from the police or sheriff's department.

In Texas you don't even have to go through the court to issue the subpoena. You can draft on your own and have your investigator serve it to the proper custodian of records. Sure, the prosecutor may get perturbed because of the route you're taking to get the records you need, but there's nothing he can do about it because the District Attorney is not a party to the subpoena. If the agency on which you served it wishes to fight it, they may -- but they must show the court why the requested documents aren't relevant to the case.

Down in Galveston County, the district attorney's office seems to want to have it both ways. They will tell you they don't have possession or custody of the documents you request when it suits them and, if you try to subpoena them, they will tell you that you can't have them. Unfortunately for the district attorney, it doesn't work that way. You either have possession, custody or control of the documents or you don't.  

You can also take advantage of your state's Open Records Act. Prosecutor tells you he doesn't have the arresting officer's civil service file? Issue an open records request to the law enforcement agency. Prosecutor says he can't give you any documents related to the warranty on the state's breath machine? Issue an open records request to the agency in charge of maintaining the machine.

When gathering evidence in a criminal case, be creative in your approach and don't forget that the rules of civil procedure may give you an additional tool in putting your case together.

What's that blinking arrow for anyway?

Section 545.104 of the Texas Transportation Code requires a driver to signal his intention to turn, change lanes or start from a parked position.

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)

The Texarkana Court of Appeals, in Wehring v. State, ___ SW3d ___ (Tex.App.--Texarkana 2008, pet. filed) held that a driver must signal a turn, even if he is turning from a turn-only lane. According to the Court, the statute "does not include exceptions for those situations in which there is only one direction to turn." The opinion went on to state that "requiring the use of a turn signal while entering a turn-only lane and making the turn would lead to absurd results."

Of course the Court also noted that Mr. Wehring was speeding and that the officer could have stopped him for that offense instead.

The lesson, as always, is don't get behind the wheel of a car if you are intoxicated. Watch while you're driving around during the day and count the number of people who signal turns or lane changes. But, if you get behind that wheel late at night, especially in an area with a multitude of restaurants and bars, any little "slip" can lead to a traffic stop and change your life.

Driving under the influence of drugs

By now we're all aware of the effect of alcohol on our bodies. We understand that the more alcohol you consume, the more ethanol makes its way to your brain. As ethanol reaches the brain it affects the central nervous system and, from there, affects your physical abilities.

Countless studies have shown that there is a direct correlation between increasing levels of ethanol in the blood and physical impairment. This relationship is the basis of our drunk driving laws.

However, what's not so well known is the relationship between illegal or prescription drugs and physical impairment. 

Whenever a urine test or a blood test is taken as the result of an arrest for driving while intoxicated, substances other than alcohol can be detected in the specimen. Should any of these substances be detected, a driver may be looking at a DWI prosecution where the intoxication is alleged to have resulted from illegal drugs or prescription medications alone or combined with alcohol.

The problem with charging a motorist with driving while intoxicated by drug, is proving the relationship between the level of that drug detected and impairment. While the pharmacokinetics of a drug, that is, what the body does to the drug, are well-documented, the pharmacodynamics, or what the drug does to the body, are much murkier.

In general it is assumed that the higher the concentration of the drug, the greater the effect of the drug. This assumption does not, however, address the core question - whether the drug affected the driver's mental and/or physical faculties to the degree that the driver is intoxicated.

We are also left to wonder about the relationship between the concentration of the drug in the blood or urine and the concentration of the drug in the brain. For without knowing the concentration of the drug in the brain, it is impossible to know whether the detected amount could cause a driver to be intoxicated.

In fact, according to a report issued by the Virginia Institute of Forensic Sciences and Medicine, there is no statistical correlation between marijuana metabolite concentration and performance on NHTSA's standardized field sobriety test battery. Researchers were also unable to determine any per se concentration akin to a .08 alcohol concentration.

There are studies indicating the effects of marijuana on one's mental and physical faculties may last up to three hours; but traces of THC may still be in one's blood or urine more than four hours after smoking.

NHTSA conducted tests on the effects of marijuana and actual driving performance and came to the conclusion that "it is not possible to conclude anything about a driver's impairment on the basis of his/her plasma concentrations of THC...determined in a single sample." The study went on to conclude that the "[p]lasma of drivers showing substantial impairment in these studies contained by high and low THC concentrations; and, drivers with high plasma concentrations showed substantial, but also no impairment, or even some improvement."

The bottom line is that there is no level of illegal drug or prescription medication that can prove a driver was intoxicated at the time of driving. 

Opinion crimes

o⋅pin⋅ion

  [uh-pin-yuhn] 

–noun

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.

There are two opinion crimes contained in the Texas Penal Code: driving while intoxicated and obscenity.

There is rarely, if ever, any direct evidence of intoxication in a DWI case. An officer may testify as to some bad driving facts, the odor of alcohol on the driver's breath, the driver's admission of drinking and the driver's performance on NHTSA's standardized field sobriety tests. The state may even put an expert on the stand to testify as to the alcohol concentration found in the driver's breath or blood sometime after the arrest. But when it comes down to whether or not the driver was intoxicated, the officer, and the state's expert, can only give their opinions.

Make the jury understand that they're only hearing the officer's opinion and that his opinion is no more valid than their own. Make the point during voir dire. Make the point during your opening. Make the point when crossing the officer. Make the point during your close.

Opinions are like, well, you know. We all have them. Should one man's opinion be enough to brand a fellow citizen a criminal for life?

Oh how the mighty have fallen

Former U.S. District Judge Samuel Kent was sentenced today to 33 months in prison after pleading guilty to obstruction of justice back in February (for previous posts, click here).

Unlike his previous appearances at the Federal Courthouse in Houston where Mr. Kent used the back entrance, today he had to walk in through the front door.

Kent retired from the bench as part of his plea agreement and is seeking a medical disability for a condition exacerbated by his legal problems. In order to receive his disability Hon. Edith Jones, the Chief Judge for the 5th Circuit, and President Obama would have to approve it.

Unless Kent resigns or is impeached, he will continue to be paid.

See also:

What's next for Samuel Kent in wake of guilty plea (Law.com, March 2, 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.

He points out that in the game of chess there are numerous occasions that victory may seem assured, or that all hope is lost. But, inevitably, because chess is such a fluid game, that certain win may be just out of grasp or that hopeless position may be turned around. His point is that there is almost always the chance to pause, look at your situation and devise a new strategy rather than just throw your hands up and admit defeat.

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.

In a DWI case, just because your client blew twice the legal limit, or just because the video isn't good or just because there are some bad driving facts, doesn't mean you should run the white flag up the pole and immediately try to get the best plea agreement you can.

Are there any reasons, other than being intoxicated, that could account for the bad driving facts? Could it be that your client, like many others on the streets, is just a bad or careless driver? Flip on the radio during the morning or afternoon rush hours and you will hear updates alerting listeners where accidents have occurred. Accidents happen - that's why they're called accidents.

What were the conditions under which your client performed the field sobriety tests? Were they conducted on the roadside or at the station? What was the weather that evening? What were traffic conditions? Was your client nervous? Does your client have a medical condition that affects his coordination? Is your client overweight? Old? Was he given an opportunity to practice the exercises? We all have varying degrees of balance and coordination. There's a reason that some folks are professional athletes and the vast majority of us are just weekend warriors.

As far as the breath test goes, does the result "match up" with what you saw on the video? How often is that machine used? When was maintenance last performed on it? Has it ever been taken out of service? Who calibrated it? How many drinks would your client have had to consume in order to raise his alcohol concentration to that level? The "science" behind that machine is questionable at best and can be challenged - if you know what you're doing.

At some point you may determine your case is hopeless; but don't just throw your arms up when the case lands on your desk because it seems unwinnable. Work with it, play around with the facts, use some creativity. There just might be a winning position under there if you look hard enough.

Crime and sympathy

I just read an interesting article by Sam Sommers, Ph.D., a social psychologist at Tufts University about how we tend to sympathize with those to whom we are similar.  In his article, Excuses, Excuses, Dr. Sommers uses the examples of the so-called "Craigslist Killer" and a church deacon who robbed a bank.

He points out that in Philip Markoff's case, his fiancee had a hard time coming to grips with his dark side.

In the case of the deacon bank robber, Bruce Windsor, he points out that media coverage focused the role the economic downturn may have played in Mr. Windsor's decision to don a mask and rob a bank four days after his 43rd birthday.

In both cases, no one could believe that either man was capable of doing what they did.

Now this is where it gets interesting: researchers Craig Haney, Laura Sweeney and Mona Lynch conducted mock-jury experiments to looking at how jurors make choices in capital murder trials. In their research they found that white jurors tend to overvalue aggravating factors and undervalue mitigating factors when the defendant is African-American. This valuation process goes a long way in explaining why blacks accused of murdering whites are much more likely to receive a death sentence that a white accused of murdering an African-American.

This same phenomenon may also explain why Barry Bonds has been vilified for (allegedly) taking steroids while rarely a word is said about Mark McGwire.

Due to the manner in which jury panels are drawn, an African-American defendant will usually find himself staring at a jury that looks nothing like him. The key is to convince those panelists that your client isn't a bad person but is, instead, a good person who made a mistake. Use voir dire to seek out bridges between your client and the jury panel that can be crossed during trial so that the jury can connect with your client.

Baseball, hot dogs and female fertility drugs

Was it a case of Manny being Manny or Manny Ramirez cheating to get an edge? 

Major League Baseball suspended the Los Angeles Dodgers star for 50 days after he tested positive for a female fertility drug used as a masking agent for steroid users.

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.

Ramirez is the first major star to receive a suspension under MLB's drug testing rules that went into effect in 2003. The suspension will cost Ramirez approximately $7.65 million.

In a game that celebrates cheating, from doctoring baseballs to stealing signs, from corking bats to watering home plate, Ramirez crossed Bud Selig's line in the sand. Alex Rodriguez has been accused of tipping opponents to pitches during blowouts in hopes someone would do the same for him, yet he's roasted for his use of performance enhancing drugs.  

Of the two, tipping opposing batters of what pitch is coming is the far more insidious crime as it is an act of betrayal. At least if a player is juicing he's helping his own team.

Harris County Sheriff wants a new jail

Newly elected Harris County Sheriff Adrian Garcia's solution for the failing grades the Harris County Jail has received is to build a new one -- an idea that area voters rejected back in 2007.

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.”

The current jail is overcrowded and understaffed. The solution to the county's problem is not to build yet another jail - the solution is to examine the policies of the criminal courts in setting bonds too high and denying personal bonds in minor drug possession cases. 

The purpose of bail is not to punish the accused but only to ensure that the citizen accused appears in court. The current policies of the criminal courts in Harris County only ensures that the jail will remain overcrowded and citizens will be subject to violations of their rights.

More wisdom from Texas Dolly

While there are few things, in the world of cards, that can beat the exhiliration of winning a big pot in a poker game, the truly successful players are the ones who build up their stacks by winning small pot after small pot. Those are the players who have the chips to take a shot at a big pot and not have to worry about busting out. 

They understand that pocket aces and kings generally will either win you a small pot or lose you a big one, and that the best way to play a strong hand in the hole is fast and strong. Limp in with aces and you could be looking at disaster down the road.

"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

Down at the courthouse it's great to hear a judge read "not guilty" from the jury's verdict form, but you stand to win more capital by playing your strongest cases hard and fast. Sure, a dismissal early on in a case isn't sexy and doesn't create same buzz as an acquittal at trial. But, with a dismissal you don't have to worry about the six or twelve folks sitting in the jury box and your client doesn't have to go through the private hell a trial can be.