Tuesday, September 29, 2009

Harris County to fund public defender's office

Harris County commissioners voted 5-0 to create a hybrid public defender's office in Harris County. Of course the devil of such a proposal is in the details and there is no consensus on how the office would operate and whether the county's various courts would have to participate in a public defender system.

Currently in Harris County indigent defendants are represented by private attorneys. Some courts used a rotating list of eligible attorneys while others employ contract attorneys. Harris County's indigent defense system has been criticized in the past for the number of felony cases assigned to particular attorneys. (See "Crowded House.")

  • 11 of the 22 state district courts would use a public defender office for appellate work;
  • 5 of the 22 state district courts would use the office for adult felony cases;
  • 2 of the 3 juvenile courts want to use both public defenders and private attorneys; and
  • all 15 county courts want to use public defenders for defendants who are disabled or who have mental problems.

Commissioner Steve Radack said he was supporting the office in order to take care of overcrowding in the Harris County Jail. Hmmm. Let's think about that for a second. In Harris County (with rare exception) the only defendants who are eligible for appointed counsel are those who are unable to bond themselves out of jail. Offers on Class B misdemeanors range (typically) from time served to 30 days. I fail to see how a public defender's office would alleviate jail overcrowding given that scenario.

And this isn't even factoring in the ridiculous offers of 30 days on DWI cases or the escalating sentences in prostitution cases. The way to reduce overcrowding in the Harris County Jail isn't to create a new bureaucracy -- the answer is to rethink how we handle those accused of committing minor offenses. The police can issue more personal bonds on minor drug possession cases (so-called "catch and release"). Magistrates could take into consideration a defendant's ability to post bond when setting bond by the county's bail schedule.

Instead the county wants to create a new office funded and beholden to those in office to defend those who can't afford to retain their own counsel. Just wait until budgets and staffing are cut in the name of budget constraint and political pressure.

Tech coach bans Twitter

So Mike Leach, the head football coach at Texas Tech, is prohibiting his players from using Twitter or Facebook after catching a little bit of heat over the past couple of weeks. While he is well within his rights at coach to lay down the rules, I find it more than a bit ironic that he is banning the flow of information at an institute of higher learning.

According to the Lubbock Avalanche-Journal, linebacker Marlon Williams asked on his Twitter account why he was still in a meeting room when "the head coach can't even be on time." That tweet has been deleted and his page no longer exists.

Is his concern that social media sites like Twitter and Facebook are taking up too much of the players' time or that unfiltered information is being released to the public? Is Leach worried that his players' aren't hitting the books or that he doesn't have editorial control over the information the kids are posting on these sites?

Leach said players' Facebook pages will be monitored. He does not want his players sharing information about the football team on them.

Well, Coach, I've got news for you. No matter how hard you try, you can't stop the free flow of information. The Soviet Union tried to and they failed. Governments in Eastern Europe tried to and they failed. China is fighting a rearguard action and they, too, will eventually fail.

It doesn't matter whether you build walls, string up barbed wire or jam satellite and phone signals -- the flow of information is an abstract being that cannot be stopped.

Monday, September 28, 2009


I had a bit of a scheduling conflict this morning. On the one hand I had a seventeen-year-old kid in custody in Galveston County with an appearance in felony court. On the other hand I had a trial setting for a traffic ticket case in Houston Municipal Court.

When it became apparent we weren't going to work out a deal on the felony case I approached Judge Timberlake in Houston Municipal Court about a continuance on the traffic case. She angrily told me that her trial setting took precedence over an inmate's felony appearance in Galveston and denied my request and threatened to report me to the State Bar if I didn't appear in her court at 8:00 am this morning.

Now let's get real, which case is more important? Furthermore, for anyone who hasn't practiced in the municipal courthouse, each court tries (at most) one case a day and there was little danger of my little speeder going to trial this afternoon.

For the record, I appeared in felony court in Galveston this morning. I'd much rather have a judge complaining about my not appearing in a ticket case than have a client in custody complaining that I didn't appear on his case.

Friday, September 25, 2009

The 80/20 Rule

It's a good bet that in any organization, 80% of the output is produced by 20% of the people. I think it's a safe assumption that 80% of the problems in a neighborhood, school or society are caused by 20% of the population. It wouldn't surprise me if 20% of my cases (or your cases) eat up about 80% of my time.

Would I be going out on a limb if I suggested that about 20% of the jurors drive about 80% of jury deliberations? That's one juror in a misdemeanor trial and two or three in a felony trial. Identifying those jurors is crucial in walking your client out of that courtroom.

Now comes the hard part -- who are those key jurors?

Thursday, September 24, 2009

More on the junk science of scent identification

The Innocence Project of Texas has released its report on the junk science behind scent identification. The report castigates Fort Bend County Sheriff's Deputy Keith Pikett and his claims about his dogs' ability to identify suspects by scent.

The report notes that Fort Bend County defense attorney Derek Smith has put together a yet-to-be published paper for Texas defense attorneys to use to attack scent identification.

In a report issued earlier this year, the National Research Council stated that:

There are two very important questions that should underlie the law's admission of and reliance upon forensic evidence in criminal trials: (1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards... [I]t matters a great deal whether an expert is qualified to testify about forensic evidence and whether the evidence is sufficiently reliable to merit a fact-finder's reliance on the truth that it purports to support. -- "Strengthening Forensic Science in the United States: A Path Forward"

In one trial, Mr. Piket claimed to have a B.S. in Chemistry from Syracuse University and a Master's degree in Chemistry from the University of Houston. In another case he claimed he had a Master's degree in Chemistry from the University of South Alabama. All these claims were false.

Mr. Pikett has testified that he did not think it important to obtain formal training, that he doesn't follow scientific protocols when conducting scent lineups and that he discounts scientific studies in the field.

There is no telling how many lives Mr. Pikett has ruined with his pseudo-scientific bullshit.

The marketing of fear

According to this piece in the Houston Chronicle, gun dealers and ammunition makers have been doing lights-out business marketing to the right wing's fear that the Obama administration will make it harder for citizens to exercise their second amendment rights.

The fear-mongers only serve to make all gun owners look like clowns and wingnuts.

Jason Gregory, who manages Gretna Gun Works just outside of New Orleans, has been building his personal supply of ammunition for months. His goal is to have at least 1,000 rounds for each of his 25 weapons.

“I call it the Obama effect,” said Gregory, 37, of Terrytown, La. “It always happens when the Democrats get in office. It happened with Clinton and Obama is even stronger for gun control. Ammunition will be the first step, so I’m stocking up while I can.”

The real clash isn't between the right and the left on this issue. What we're really witnessing is a clash between two ways of life -- rural and urban. Traditionally gun ownership has been highest in the rural parts of the country; after all, it's hard to hunt deer inside the Loop. As these rural areas become suburbanized, and as the younger folks move to more urban areas, the impetus to own guns diminishes.

This cultural gap also manifests itself in the longing for "the good ol' days." The same "good ol' days" that brought us "separate, but not equal," Jim Crow and glass ceilings.

Tuesday, September 22, 2009

Celebrate freedom, read a banned book

The 27th annual Banned Books Week kicks off on Saturday. Sponsored by the American Library Association, Banned Books Week celebrates freedom of expression and democracy.

Intellectual freedom can exist only where two essential conditions are met: first, that all individuals have the right to hold any belief on any subject and to convey their ideas in any form they deem appropriate; and second, that society makes an equal commitment to the right of unrestricted access to information and ideas regardless of the communication medium used, the content of the work, and the viewpoints of both the author and receiver of information. Freedom to express oneself through a chosen mode of communication, including the Internet, becomes virtually meaningless if access to that information is not protected. Intellectual freedom implies a circle, and that circle is broken if either freedom of expression or access to ideas is stifled. - American Library Association "Intellectual Freedom Manual"

Most of the featured books were the targets of attempted bannings, but still remain on the shelves.

Several of the top 100 novels of the 20th century have been the target of the book banners, including:

  • The Great Gatsby by F. Scott Fitzgerald
  • The Catcher in the Rye by J.D. Salinger
  • The Grapes of Wrath by John Steinbeck
  • To Kill a Mockingbird by Harper Lee
  • The Color Purple by Alice Walker
  • Ulysses by James Joyce
  • Beloved by Toni Morrison
  • The Lord of the Flies by William Golding
  • 1984 by George Orwell
  • Lolita by Vladmir Nabokov
  • Of Mice and Men by John Steinbeck
  • Catch-22 by Joseph Heller
  • Brave New World by Aldous Huxley
  • The Sun Also Rises by Ernest Hemingway
  • As I Lay Dying by William Faulkner
  • A Farewell to Arms by Ernest Hemingway
  • Heart of Darkness by Joseph Conrad
  • Their Eyes Were Watching God by Zora Neale Hurston
  • Invisible Man by Ralph Ellison
  • Song of Solomon by Toni Morrison
  • Gone With the Wind by Margaret Mitchell
  • Native Son by Richard Wright
  • One Flew Over the Cuckoo's Nest by Ken Kesey
  • Slaughterhouse Five by Kurt Vonnegut
  • For Whom the Bell Tolls by Ernest Hemingway
  • The Call of the Wild by Jack London
  • Go Tell it on the Mountain by James Baldwin
  • All the King's Men by Robert Penn Warren
  • The Lord of the Rings by J.R.R. Tolkien
  • The Jungle by Upton Sinclair
  • Lady Chatterley's Lover by D.H. Lawrence
  • A Clockwork Orange by Anthony Burgess
  • In Cold Blood by Truman Capote
  • Satanic Verses by Salman Rushdie
  • Sons and Lovers by D.H. Lawrence
  • Cat's Cradle by Kurt Vonnegut
  • A Separate Peace by John Knowles
  • Naked Lunch by William Burroughs
  • Women in Love by D.H. Lawrence
  • The Naked and the Dead by Norman Mailer
  • Tropic of Cancer by Henry Miller
  • An American Tragedy by Theodore Dreiser
  • Rabbit, Run by John Updike

Celebrate the First Amendment and freedom of thought by reading one of these classics during Banned Books Week.

Monday, September 21, 2009

Friday, September 18, 2009

Scent identification - the new "poo-poo" science?

The Innocence Project is set to release a report next week that labels scent identification as junk science. Fort Bend County Sheriff's Deputy Keith Pikett is the lightning rod who claims his dogs have picked more than 2,000 suspects out of "scent line-ups."

Deputy Pikett is on the receiving end of two federal lawsuits filed by individuals who Pikett implicated in criminal acts. Charges against the two men have been dropped.

According to this article in the Victoria Advocate, Deputy Pikett's credibility has been challenged as he claims his dogs rarely, if ever, make mistakes.

In 1998, Keith Pikett turned his hobby into a career with the Fort Bend County Sheriff's Office.

Since then, police, prosecutors and the media have praised the deputy and his dogs' work in more than 1,000 investigations.

But Pikett's credibility is being tested in both civil and criminal court. Two federal lawsuits, filed little more than a year apart, claim Pikett's scent lineups are designed to implicate suspects - not to gather objective evidence.

Meanwhile, judges have twice excluded him from testifying as an expert because of questions about the science supporting his work or his honesty.

In 2007, Pikett testified that three of his dogs, Jag, James Bond and Clue, never erred in scent identifications, despite having sniffed hundreds of lineups. A fourth hound, 12-year-old Quincy, performed 1,483 scent lineups and made only two mistakes early in her career, Pikett said.

Last month, Grits for Breakfast posted this article in which he compares Deputy Pikett's dog-and-pony show to the exploits of a horse trainer who was able to influence the "answers" his horses gave to math problems.

Have the courts thrown in the towel on their duty as gatekeepers of scientific evidence?

The grunt work makes it possible

Tomorrow night the University of Texas will seek revenge on Texas Tech for a last-second loss in Lubbock last season that cost the 'Horns a shot at the national title. I expect both teams to be slinging the ball up and down the field and I hope the scoreboard operator at Memorial Stadium bought some extra bulbs.

Last Saturday the University of Houston picked up their biggest win in 25 years
when they marched into Stillwater and knocked off Oklahoma State. I think the footballs in that game were racking up frequent flyer points.

Thirty years ago the Longhorns and the Cougars lived on the ground. The 'Horns ran the wishbone and the Coogs did their damage with Bill Yeoman's Veer. Now they both run variations of the Spread Option and live and die through the air.

But even though the offensive philosophies and schemes are different now, both the ground attacks of the 60's and 70's and the air assaults of today depend on the same thing -- a solid offensive line. It doesn't matter how you intend to move the ball around, if your line can't block and protect the quarterback, you're not going anywhere.

An analogy can be made to the practice of criminal law. It doesn't matter how glib or flashy an attorney is at trial if he isn't prepared. Regardless of one's style in the courtroom, if you don't know your case inside and out, backwards and forwards, you're in trouble. All the technology and glitz in the world won't matter if you haven't put in the prep time.

Tuesday, September 15, 2009

A League City war story

Tried an assault case down in League City this afternoon (perhaps y'all remember my last experience down there). Three people testified - the alleged victim, my client and my client's mother. All three stories were different. The only thing they all agreed on was that my client and the alleged victim had an argument.

The end result was a (somewhat) typical she said-she said swearing match. The judge found my client not guilty but then proceeded to berate her, saying she thought my client did assault the alleged victim but that because she had one little doubt, she couldn't find her guilty.

While I think the judge's final decision was the correct one, I do take offense at her comments to my client afterward. The comments weren't necessary, in fact, they were mean-spirited and the judge seemed to be aggravated that anyone would dare demand their day in court.

Monday, September 14, 2009

New DWI program sounds more and more like deferred adjudication

So you still think Harris County's new DIVERT program for first-time DWI defendants is really a pretrial diversion and not deferred adjudication by another name? See this document released internally to Harris County prosecutors.

"After a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate candidate for the program, an agreement will be tailored to the defendant with customized conditions of the program. If the defendant accepts the terms of the agreement, the defendant will be required to enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event of a violation of the conditions of the program. As part of the agreement, the Defendant will waive the right to a jury trial, right to appeal from a finding of guilt and right to appeal from assessment of sentence."

Article 42.12, Sec. 5(a) of the Texas Code of Criminal Procedure states that a judge may accept a plea of guilty or no contest from a defendant and, if the judge feels it is in the best interest of both society and the defendant, the judge may defer a finding of guilt until the defendant has completed his probationary sentence. Sec. 5(c) states that if the defendant has not violated the terms of his probation and if the judge has not proceeded to adjudicate the defendant's guilt, the judge shall dismiss the the case against the defendant. This is the statutory definition of deferred adjudication.

Art. 42.12, Sec. 5(d) states that a judge may not grant deferred adjudication for the offense of driving while intoxicated.

Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure states that an expunction is not available to a person who was granted deferred adjudication under Article 42.12.

My reading of the DIVERT program procedures and the Code of Criminal Procedure leads me to believe that a person who completes the program will not be eligible for a expunction because that person entered a plea of guilty to DWI. Unfortunately we will not know until the first person files for an expunction at least three (3) years from now.

And if that isn't enough to make you wonder just what the hell is going on, there's this little gem from Page 2:

"If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any information directly or indirectly derived from the interviews or testing of the defendant during the DIVERT evaluation will not be used as evidence against the defendant in any criminal proceeding except for the purposes of impeachment, rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided in the evaluation process; or information learned from a source independent of the evaluation."

So there. DIVERT ain't about designing a treatment program for a person accused of DWI, it's about building a case against that person should they decide not to enter the program. If the purpose really were to treat people, the evaluations would be conducted by a provider not affiliated with Harris County so that thelimited physician-patient privilege afforded under Texas Rule of Evidence 509(b) would apply.

Sunday, September 13, 2009

Cops packing needles

Police in Arizona and Idaho are now carrying needles along with their sidearms in an attempt to limit further the rights of those arrested for suspicion of driving while intoxicated. It's not enough that states strengthened penalties for those citizens who exercised their right not to incriminate themselves by refusing to submit to a breath test, now they want motorists to submit to blood draws by police officers in the field.

In Idaho, about 20% of the motorists arrested for suspicion of drunk driving exercise their right to refuse to submit a sample of their breath (the national average is 22%). Prosecutors say breath test refusals are the reason they still have to try as many DWI cases as they do. On the flip side, maybe the cops are a bit overzealous in arresting motorists for drunk driving. Of course, couldn't happen, right? All that state and federal grant money doesn't have any effect on the number of motorists arrested for DWI, does it?

According to the Associated Press, NHTSA is in contact with the Houston Police Department to institute phlebotemy training for DWI task force officers here in the Bayou City.

So now we have the Harris County District Attorney upset because people who plead guilty to driving while intoxicated are choosing to pay a fine and deal with a license suspension rather than opting for 12-18 months of probation (and headaches). We have prosecutors in Idaho upset that motorists are electing to take their DWI cases to trial. What we don't have is any acknowledgement from law enforcement that sometimes, believe it or not, they don't get it right - that sometimes they arrest innocent people.

According to the Bill of Rights, we are innocent unless proven guilty -- perhaps someone should examine the curriculum at the police academy and baby prosecutor school.

What should I do if I'm pulled over for DWI?

I'm often asked what someone should do if they're pulled over on a DWI. Now the first thing to remember is that unless you are in an area with bars and restaurants, a DWI stop rarely starts out as a DWI stop.

Typically a driver is stopped because of a traffic or equipment violation. Depending on the location and time of day, the officer may or may not start off with the assumption the driver has been drinking.

The first thing you want to do is get your driver's license and insurance card out before the officer approaches your window. If you show the slightest difficulty in getting them out after he asks for them, he will note that you fumbled for your license when he writes his report.

You always want to be polite. Always remember that it is the officer who is going to decide whether or not to make this a DWI stop. If you are rude and combative, believe me, that will make it into the officer's report as a sign of intoxication.

Generally if the officer asks you to get out of your car you are going to be arrested whether you perform any of his coordination exercises or not. Do not lean against your car after getting out. If you do, the officer will indicate this as another sign of intoxication.

Listen carefully to the officer's questions and, if you choose to answer them, only answer what is asked. If you've been drinking, your breath will have the odor of an alcoholic beverage; remember this if the officer asks if you've been drinking.

Before you agree to perform the officer's coordination exercises you need to realize that every question the officer asks you and every task he asks you to perform are designed to gather evidence that will be used against you.

If you were stopped for speeding or for an equipment violation you need to be aware that neither of these is an indicator of impairment. Even if the officer notes you had the odor of an alcoholic beverage on your breath, slurred speech and bloodshot eyes, without any signs of impairment, the officer cannot establish probable cause to arrest you (though you will be arrested).

If you are familiar with the coordination exercises the officer will ask you to perform and you know what "clues" he's looking for then you may decide to perform them -- although I would counsel against it. Just remember, even though there are 93 components to the walk-and-turn test, for instance, the officer (and prosecutor) will claim you are intoxicated if you exhibit 2 or more "clues."

If you were not involved in an accident and you don't have a child in your car and the local police are not running a "No Refusal" weekend, do not blow into the breath test machine. I repeat - do not blow into the breath test machine. If you blow over .08, you've got problems, if you blow under .08 the officer will find some reason to explain the score -- maybe you "elmininated" the alcohol from your system or maybe you were also doing either prescription or illegal drugs that "synergized" with the alcohol and caused impairment.

If you are subject to a mandatory blood draw if you refuse the breath test you sit on the horns of a dilemma. If you think you have an alcohol concentration of less than .08 then you probably should blow into the machine. Otherwise you will be looking at a blood test. While a jury is trained to think of blood tests as infallible, there are a number of evidentiary issues that can keep a blood test out of evidence, or at least cast serious doubt on its accuracy.

Friday, September 11, 2009

Taking a lunch break

Okay, enough of the law for now.

Today I had the pleasure of having lunch with my 5 year-old daughter at school. We feasted on a Cuban sandwich and chicken quesadillas from El Rey. Then, because it was Friday, we treated outselves to ice cream.

Working for yourself can be a real grind - at times it can be downright scary wondering where the next dollar is coming from. But getting to sit next to my daughter at lunch makes it all worth it.

Thursday, September 10, 2009

Harrowing tales of conditions in the Harris County Jail

Randall Patterson of The Houston Press penned an article in the current issue on the conditions inside the Harris County Jail. Mr. Patterson interviewed people as they were released from the facility and asked them to describe what it was like on the inside. The accounts of former inmates casts, shall we say, a different light on the facility than the assurances of Sheriff Adrian Garcia and County Attorney Vince Ryan.

Here's a taste of what Mr. Patterson discovered:

As for meals, "that whole food thing is hit or miss," said Shemika. "When they did feed you, it was a bologna sandwich — and I'm Muslim." Frank George Smith Jr. said he was there three and a half days and got just two sandwiches. No one was given anything to drink. There was only the fountain, which was suspended just above the toilet. The toilet was "like a fucking rain forest," Jarret said, "fungus and mold in there like this thick." People were lying on the floor around it; someone was always sitting on it. Jarret managed not to use the toilet for two and a half days — "man, you just take the stomach pains," he said — but he had to drink. "You practically got to put your face in shit to drink," he said. And Smith said, "you see that tan truck there? The water looked about like that."

What's even more appalling is that these folks were supposed to be presumed innocent when they were brought to the county jail. If this is how the Harris County Sheriff's Office treats people who haven't been convicted of anything - how much worse is the treatment of those who have been convicted?

Tuesday, September 8, 2009

Cell phone users pose more danger than drunk drivers

A study from the Harvard Center for Risk Analysis claims that 6% of all motor vehicle accidents in the United States - some 636,000 a year - are caused by drivers talking on their cell phones while driving.

Dr. David Strayer of the University of Utah found that it is more dangerous for a driver to talk on his cell phone while driving than it is to talk to a front seat passenger. He said it didn't matter whether the driver was talking on a conventional phone or on a hands-free model -- because the degree of impairment was so great.

"When you're on a call, even if both hands are on the wheel, your head is in the call," said Janet Froetscher, president of the National Safety Council.

In a previous study, Dr. Strayer concluded that drivers talking on cell phones pose a greater hazard to other motorists than drunk drivers. His research indicated that drivers talking on cell phones exhibited slower responses than drivers dosed to a .08 alcohol concentration as measured by breath.

At any given time you are more likely to be on the road next to a driver talking on his cellphone than you are to a drunk driver. How safe do our drunk driving laws make you feel now? And if cell phone users are a greater hazard to the driving public, what is really behind the new "pretrial diversion" plan in Harris County?

Monday, September 7, 2009

Driver sues Indiana police over a forced urine draw

Because drunk driving is often an opinion crime -- as in, that it depends on the officer's opinion -- once an officer decides a driver is intoxicated, there is nothing the driver can do to avoid being arrested.

In Houston, if you are pulled over for a traffic offense late at night and the officer smells alcohol on your breath, he will ask you to get out of your car. At that point it's too late to stop the inevitable -- you are going to be arrested for DWI.

If you refuse to perform the police coordination exercises or to blow into the state's breath test machine - it's evidence of a guilty conscience.

If you ace the police coordination exercises - it's because you have built up a tolerance to the effects of alcohol.

If you blow under a .08 on the state's breath test machine - it's because you body "eliminated" alcohol between the time of the stop and the time of the breath test.

In Lawrenceburg, Indiana, Mr. Jamie Lockard was arrested in March for suspicion of driving while intoxicated. The arresting officer demanded that Mr. Lockard blow into the breath test machine. Mr. Lockard complied -- and passed.

According to a lawsuit filed by Mr. Lockard, Officer Miller then took him to Dearborn County Hospital, shackled him to a gurney and had a catheter inserted into Mr. Lockard in order to obtain a urine sample.

The urine sample confirmed that Mr. Lockard was under the legal limit. But that still wasn't enough for Officer Miller who charged Mr. Lockard with obstruction of justice.

Further proof that with DWI, you are guilty unless proven otherwise.

Friday, September 4, 2009

Oh to be in Richmond in the morning

Let's see here... Drove down to Fort Bend County this morning for a first setting on a DWI case. Even though his bail bond receipt listed today as his court date, his name did not appear on any of the court dockets I checked on the internet last night.

As I was parking my car he called me and said his name was on the list of cases that needed to be reset. I walked into the courthouse and checked the sheet. I saw the following notations: CCH, DLR.

We went up to the sixth floor to the District Attorney's office to reset the case. I asked the ADA what those notations meant and she told me they still needed to check my client's criminal history and his driving record.

My client was arrested over a month ago. How long does it take to run a criminal history check and to pull a driving record? I guess I could ask how many prosecutors does it take to... but that would be tacky.

Come on, Fort Bend County, there are these wonderful machines called computers that allow us to access all sorts of information at a moment's notice. I think they sell them down there.

Maybe someone can explain to me the purpose of having a citizen who's been accused of committing a criminal act go to the courthouse for absolutely no good reason.

Wednesday, September 2, 2009

Math, Texans-style

Over the offseason the braintrust behind the Houston Texans decided that it would be a good idea in these hard economic times to reduce the size of the beer cups at Reliant Stadium from 24 ounces to 20 ounces while leaving the price of foamy adult beverages at $7.75.

Fans of the Texans were outraged at this egregious attempt to gouge them - nevermind they were being robbed in the first place. Hey! Where's the district attorney when you need them? Forget about this DIVERT stuff -- what about Beergate?

As a result of the fans' adverse reaction to this little ploy, the Texans' braintrust (I'm sorry, but I'm a big fan of oxymorons) decided they would reduce the price of beer at the stadium to $7. Unfortunately, their planned pacification of the masses will only work on those who are just a bit challenged in the field of mathematics.

While it might be seen as a good gesture, the reality of the situation is that the size of beer cups has been reduced by 16% but the price of beer has only been reduced by a tick under 10%. So you see, friends and Cowboys fans, that the beer-drinking public is still getting it handed to them - only not as blatantly.

Is this the way to treat your (blindly loyal) fans? I mean, let's face it, it's damn near impossible to watch the (painfully boring) Texans without copious amounts of alcohol.

The new and improved breath alcohol testing program

No longer does the Texas Department of Public Safety run a breath alcohol testing program -- it now oversees the Texas Forensic Breath Alcohol Laboratory Service (Texas For Balls).

In addition, the state's breath test expert will no longer be known as the Technical Supervisor (a term that never made any sense) - but will instead now be called a "Forensic Scientist." I will admit that scientist does sound much more authoritative than supervisor.

But as nothing else has changed, it seems akin to a manufacturer touting their product as new and improved when all they did was change the packaging.

You know what they say... you can put lipstick on a moose/pig/frog but it's still dinner.

Tuesday, September 1, 2009

Evidence mounts that Texas executed an innocent man

In August 2008, I wrote about the case of Cameron Willingham who was murdered by the State of Texas for allegedly setting a fire that killed his three children. Today there is more evidence than before that Texas murdered an innocent man.

In the upcoming issue of The New Yorker is a piece by reporter David Grann that looks at the Willingham case inside and out. Mr. Grann's portrait of incompetence and intellectual dishonesty casts the blame for Mr. Willingham's murder by lethal injection far and wide.

While he castigates Deputy State Fire Marshal Manuel Vasquez for his junk science, laziness and perjured testimony and Mr. Willingham's court-appointed attorneys for their (shall we say) failure to provide a vigorous defense, Mr. Grann provides a haunting look at the hell Mr. Willingham endured during his years on death row.

The article also makes me wonder how much longer we will have to put up with pseudo-scientific evidence such as bite mark analysis, handwriting analysis, tire tread analysis and all the other expert testimony that is "more art than science." When will our judiciary finally understand that criminal trial work is not merely an academic exercise? How many times will we have to hear the Court of Criminal Appeals state that factual innocence alone is insufficient to overturn a conviction? When will our lawmakers realize that the death penalty never has been, and never will be, an effective deterrent?

How many more innocent men have been murdered in the death house in Huntsville?

Poisoning the pool

Drink. Drive. Go to Jail.

That was the message on the electronic signboards alongside the freeway as I drove from the El Rey on Bunker Hill to my office in the Heights this afternoon. El Rey's grilled shrimp tacos are to die for, by the way.

But that message on the signboards is wrong. Very wrong. It is not now, and never has been, against the law to drink an alcoholic beverage and get behind the wheel of a car (unless you're on probation, but that's another story for another day). The Texas DWI Statute says it's against the law to drive if you have lost the normal use of your mental or physical faculties due to alcohol (or drugs) or if your alcohol concentration is greater than .08%.

Of course if you've ever dealt with drunk driving cases, you already know that for police officers chasing state and federal grant money, it's against the law to drive a car with the smell of an alcoholic beverage on your breath.

These electronic signboards on the freeway, print ads and television and radio ads aren't just spreading misinformation -- they are poisoning the jury pool for drunk driving cases. Those folks staring at you while you conduct voir dire see these messages continuously - especially during holidays when the police gear up for No Refusal Weekends.