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.
Monday, June 29, 2009
Next we'll tack on a portion of the electric bill as a court cost...
Madoff to spend the rest of his life behind bars
Friday, June 26, 2009
Clear as mud
- The candidate must be a true first offender (or at least someone who understands the importance of expunging those criminal records).
- The DA's office will consider all first DWI offenders - even if there was an accident involved. Of course, the severity of the accident will be considered.
- The DA will screen candidates for eligibility. Should the candidate be approved, an evaluation would be ordered. The exact way in which this evaluation would be conducted has yet to be decided.
- The candidate must agree to a "punishment" as part of the contract. This "punishment" would be applied should the candidate fail to complete the program successfully.
- The program would require the installation of an ignition interlock device (regardless of whether or not there was a breath test) for a minimum of six months.
- The program itself would be for a period of one-to-two years, depending on the facts of the case. No criteria for determining the length of the program has been defined at this point.
- All treatment programs would be paid for by the candidate. According to Ms. Lykos' office, the county will provide treatment for indigent candidates.
- In the event that the candidate "violated" the terms of the agreement, the court will impose a punishment based on the "punishment schedule" that was set up as part of the candidate's entry into the program. Consequences would be "swift" and the candidate would waive his or her right to litigate the issue.
- The candidate would have to agree to a one-year waiting period before he or she could ask the court for an expunction. That expunction would be the same as any other expunction -- all records related to the arrest and prosecution of the candidate would be destroyed. That is, except for DPS driving records. Any "DWI contact" would be forever part of the candidate's driving record.
Kent resigns, for real
- John Pickering, Massachusetts - convicted and removed from office, 1804
- West H. Humphreys, Tennessee - convicted and removed from office, 1862
- Robert W. Archbald - convicted and removed from office, 1913
- Halsted L. Ritter, Florida - convicted and removed from office, 1936
- Harry E. Claiborne, Nevada - convicted and removed from office, 1986
- Alcee L. Hastings, Florida - convicted and removed from office, 1989
- Walter L. Nixon, Mississippi - convicted and removed from office, 1989
Thursday, June 25, 2009
Supreme Court upholds right of confrontation
"But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available." Melendez-Diaz v. Massachusetts.
“To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford v. Washington, 541 US 36, 61-62 (2004).
“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony orits functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonablyexpect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would beavailable for use at a later trial.” - Crawford v. Washington, 541 US 36 (2004).
Wednesday, June 24, 2009
Monday, June 22, 2009
Mexico to decriminalize minor drug possession
"The important thing is . . . that consumers are not treated as criminals," said Rafael Ruiz Mena, secretary general of the National Institute of Penal Sciences. "It is a public health problem, not a penal problem."
White collar crime and punishment
Sunday, June 21, 2009
The two-edged sword of social media in the courtroom
• During a major federal drug trial earlier this year, the trial came to a screeching halt when eight sitting jurors admitted to obtaining information about the case from the Internet.
• During a political corruption trial in Philadelphia, a juror provided a running commentary about the case on Facebook. The defense objected, but the trial was allowed to continue. The defendant, a former state senator, was convicted.
• In Arkansas, a juror used his cell phone to post Twitter updates during the trial. When revealed, he couldn’t understand what the fuss was about.
• Finally, when a juror in England could not decide on a case, she posted details about the trial and asked readers to vote on how she should rule.
Web 2.0 is in the courtroom and you disregard this reality at your own peril. You have to ask potential jurors if they use Facebook, Myspace or Twitter. You need to know if any of your potential panelists blog. You need to see what they've posted, what they read, who they're fans of, etc. You need to ask the court for additional time to conduct this research before you can make intelligent decisions on who to challenge for cause and on whom to exercise your strikes.
And while you're running checks on the panelists, don't forget to look up witnesses on the internet, too. And it's best to tell your client to lay off the social media until the case is over - you never know who else is lurking in cyberspace.
You also need to know who's in the courtroom watching the proceedings. Are they there to learn the ropes? Are they blogging? Are they "live" tweeting your trial?
While Web 2.0 has given us an infinite amount of useful information at our fingertips, it's also created a field of new dangers for defendants and attorneys alike.
Shirking personal responsibility
Saturday, June 20, 2009
Perry vetoes expunction bill
House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses. Current law provides that an individual is entitled to copies of their expunged records after the statute of limitations has expired. A prosecutor may contest the expunction by proving reasonable cause that the person will be charged, leading the prosecutor to reveal details of the investigation prior to its completion. Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely. Allowing a person to know the identities of witnesses or the nature of their evidence unnecessarily endangers both law enforcement and citizen witnesses prior to an indictment for murder, organized crime, sexual assaults and other serious offenses. House Bill No. 3481 precipitates an untenable injustice to victims and a hazard to public safety. - Gov. Perry's veto statement (June 19, 2009)
Friday, June 19, 2009
Now for something (completely) different
House votes to impeach Kent in record time
Wednesday, June 17, 2009
"We will not tolerate murder, or the threat of violence, masquerading as political activism. So let me be clear. The Justice Department will use every tool at its disposal to protect the rights ensured under our Constitution." -- Eric Holder, US Attorney General
Holder said that to stop such violence, Congress should pass an updated version of hate crimes legislation in order to more effectively prosecute those who commit violent attacks based on gender, disability or sexual orientation.
Tuesday, June 16, 2009
Cleveland Browns' star pleads guilty to DUI manslaughter
Using the HGN test to your advantage
Passing before our eyes
Saturday, June 13, 2009
Tarrant County District Attorney may be removed from death row appeal
Friday, June 12, 2009
Government declares war on online poker players
"It's not like the government went after money that the site made, instead they seized money that belonged to me," David said. "There is no law that restricts citizens from recovering money."
Thursday, June 11, 2009
Disgraced judge to report to prison on Monday
Some helpful advice from a public defender
First, let me say I love my job and it is a privilege to work for my clients. I wish I could do more for them. That being said, there are a few things that need to be discussed.
You have the right to remain silent. So SHUT THE FUCK UP. Those cops are completely serious when they say your statements can and will be used against you. There’s just no need to babble on like it’s a drink and dial session. They are just pretending to like you and be interested in you.
When you come to court, consider your dress. If you’re charged with a DUI, don’t wear a Budweiser shirt. If you have some miscellaneous drug charge, think twice about clothing with a marijuana leaf on it or a t-shirt with the “UniBonger” on it. Long sleeves are very nice for covering tattoos and track marks. Try not to be visibly drunk when you show up.
Consider bathing and brushing your teeth. This is just as a courtesy to me who has to stand by you in court. Smoking 5 generic cigarettes to cover up your bad breath is not the same as brushing. Try not to cough and spit on my while you speak and further transmit your strep, flu, and hepatitis A through Z.
I’m a lawyer, not your fairy godmother. I probably won’t find a loophole or technicality for you, so don’t be pissed off. I didn’t beat up your girlfriend, steal that car, rob that liquor store, sell that crystal meth, or rape that 13 year old. By the time we meet, much of your fate has been sealed, so don’t be too surprised by your limited options and that I’m the one telling you about them.
Don’t think you’ll improve my interest in your case by yelling at me, telling me I’m not doing anything for you, calling me a public pretender or complaining to my supervisor. This does not inspire me, it makes me hate you and want to work with you even less.
It does not help if you leave me nine messages in 17 minutes. Especially if you leave them all on Saturday night and early Sunday morning. This just makes me want to stab you in the eye when we finally meet.
For the guys: Don’t think I’m amused when you flirt or offer to “do me.” You can’t successfully rob a convenience store, forge a signature, pawn stolen merchandise, get through a day without drinking, control your temper, or talk your way out of a routine traffic stop. I figure your performance in other areas is just as spectacular, and the thought of your shriveled unwashed body near me makes me want to kill you and then myself.
For the girls: I know your life is rougher than mine and you have no resources. I’m not going to insult you by suggesting you leave your abusive pimp/boyfriend, that you stop taking meth, or that your stop stealing shit. I do wish you’d stop beating the crap out of your kids and leaving your needles out for them to play with because you aren’t allowing them to have a life that is any better than yours.
For the morons: Your second grade teacher was right – neatness counts. Just clean up! When you rob the store, don’t leave your wallet. When you drive into the front of the bank, don’t leave the front license plate. When you rape/assault/rob a woman on the street, don’t leave behind your cell phone. After you abuse your girlfriend, don’t leave a note saying that you’re sorry.
If you are being chased by the cops and you have dope in your pocket – dump it. These cops are not geniuses. They are out of shape and want to go to Krispy Kreme and most of all go home. They will not scour the woods or the streets for your 2 grams of meth. But they will check your pockets, idiot. 2 grams is not worth six months of jail.
Don’t be offended and say you were harassed because the security was following you all over the store. Girl, you were wearing an electronic ankle bracelet with your mini skirt. And you were stealing. That’s not harassment, that’s good store security.
And those kids you churn out: how is it possible? You’re out there breeding like feral cats. What exactly is the attraction of having sex with other meth addicts? You are lacking in the most basic aspects of hygiene, deathly pale, greasy, grey-toothed, twitchy and covered with open sores. How can you be having sex? You make my baby-whoring crack head clients look positively radiant by comparison.
"I didn't put it all the way in." Not a defense.
"All the money is gone now." Not a defense
"The bitch deserved it." Not a defense.
"But that dope was so stepped on, I barely got high." Not a defense.
"She didn't look thirteen." Possibly a defense; it depends.
"She didn't look six." Never a defense, you just need to die.
For those rare clients that say thank-you, leave a voice mail, send a card or flowers, you are very welcome. I keep them all, and they keep me going more than my pitiful COLA increase.
For the idiots who ask me how I sleep at night: I sleep just fine, thank you. There's nothing wrong with any of my clients that could not have been fixed with money or the presence of at least one caring adult in their lives. But that window has closed, and that loss diminishes us all.
Wednesday, June 10, 2009
Beware the song of the Sirens
A pandemic plague sweeping over Harris County
1. (of a disease) prevalent throughout an entire country, continent, or the whole world; epidemic over a large area.
2. general; universal: pandemic fear of atomic war.–noun
3. a pandemic disease.
plague[pleyg] noun, verb, plagued,pla⋅guing.–noun
1. an epidemic disease that causes high mortality; pestilence.
2. an infectious, epidemic disease caused by a bacterium,Yersinia pestis, characterized by fever, chills, and prostration, transmitted to humans from rats by means of the bites of fleas. Compare bubonic plague, pneumonic plague, septicemic plague.
3. any widespread affliction, calamity, or evil, esp. one regarded as a direct punishment by God: a plague of war and desolation.
4. any cause of trouble, annoyance, or vexation: Uninvited guests are a plague.
Lykos hopes to lower DWI rates by offering first-time offenders a pretrial probation term that avoids a conviction, in hopes of getting more into treatment. In recent years, most of those charged with drunken driving in Harris County have pleaded guilty, served jail time and paid a fine, rather than be placed on supervised probation where alcohol education and treatment assessment is mandatory. Probation for DWI fell from 4,700 cases in 2000 to 2,150 in 2007, according to the district attorney’s office.
Houston’s DWI task force receives about $480,000 a year in grants to pay overtime for officers to catch and process drunken drivers, said task force member Don Egdorf, also HPD’s liaison with the district attorney’s vehicular crimes unit. “I don’t know if there are more drunks on the streets, but there are more officers looking for the drunks so there are more of them getting picked up,” he said.
Tuesday, June 9, 2009
Time running out for disgraced federal judge
Two of the panel’s charges accused Kent of conduct that was “incompatible with the trust and confidence placed in him as a judge” in connection with repeated predatory assaults on case manager Cathy McBroom, 50, and Donna Wilkerson, 45.
A third charge accused Kent of having “corruptly obstructed, influenced or impeded an official proceeding” looking into the allegations.
The fourth charge accused him of making “material false and misleading statements about the nature and extent of his nonconsensual sexual contact” with the two courtroom employees.
Feds concerned about healthcare and violence at the Harris County Jail
- The jail failed "to provide consistent and adequate care for detainees with serious chronic medical conditions."
- The jail provides inadequate housing for detainees with mental health issues as well as inadequate access to mental health care.
- The jail "lacks a minimally adequate system for deterring excessive use of force and an adequate plan for a large and sometimes violent detainee population
- The jail lacks "certain necessary structured maintenance, sanitation and fire safety programs."
Monday, June 8, 2009
Isn't that putting the cart before the horse?
Rule 3.09 Special Responsibilities of a ProsecutorThe prosecutor in a criminal case shall:(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights;(d) make timely disclosure to the defense of all evidence or information known to theprosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.