Friday, October 30, 2009

State trooper, under investigation for use of excessive force, resigns

The Texas Department of Public Safety today announced that State Trooper Arturo Perez received a preliminary notice of discharge for an incident that occurred on the Dallas North Tollway on October 10 of this year.

According to the department's press release, Trooper Perez' in-car video shows that he used excessive force during an arrest on the tollway. Texas Rangers will present the results of their investigation to the Dallas County District Attorney's Office.

The use of excessive force could result in a criminal charge of official oppression.

Trooper Perez resigned before the termination could be completed.

Do as I say, not as I do


It appears that the City of Houston is using a defense to toll tickets issued by the Harris County Toll Road Authority that doesn't fly for drivers who receive red light camera tickets.

Apparently the city owes the toll road authority $13,851 in unpaid tolls, fines and collection fees for 552 citations issued to 122 different city-owned vehicles. No wonder the county put the kibosh on the city's request to withhold automobile registrations for red light camera scofflaws.

Both the county and the city issue citations to the registered owner of the vehicle in question; for this reason the matters are strictly civil and are not included on a person's driving record. An employee of the city's finance department sent an e-mail to the Harris County Attorney's Office stating that the citations did not include photographs of the drivers of the city-owned cars and that the citations are the responsibility of the individual drivers and not the city.


Thursday, October 29, 2009

Giving credit where credit is due

Yesterday's post on the New York attorney free speech case neglected one important detail. Mr. Bluestone's attorney was none other than the author of Simple Justice, Scott Greenfield.

Said Mr. Greenfield in an e-mail from earlier today:
What a great victory for attorney free speech. I wonder who the hard-working, yet handsome and urbane, attorney who represented Bluestone might be? We owe him a deep debt of gratitude.
We all hear it when we lose a case -- here's some credit for a great win, Scott.

A change in my comment policy

Up until a couple of days ago I permitted any and all comments on my blog -- I believe that the free exchange of information and opinion benefits everyone. However, due to the increase in spam comments and criticism from anonymous posters, I have (regretfully) made the decision to moderate the comments.

My rules are quite simple: all comments will be approved unless they are spam or anonymous criticism. Y'all know who I am. I don't hide behind a mask of anonymity. I criticize, challenge and call others out for their comments or behavior -- and I don't mind being on the other end of it, either. But, I firmly believe that if you're going to criticize someone else -- you should at least be intellectually honest enough to do it under your own name.

I understand there are reasons some people won't post a comment under their real name -- but if you want to be critical of the content on this blog, that's what you're going to have to do.

Wednesday, October 28, 2009

State bar advertising rules may not apply to blogs

In November 2003, New York malpractice attorney Andrew Bluestone began faxing out copies of his one-page Attorney Malpractice Report. The faxes contained contact information for Mr. Bluestone as well as an essay dealing with some facet of attorney malpractice litigation.

New York solo practitioner Marc Stern received 14 of these faxes between November 2003 and March 2005. He eventually filed suit, alleging that Mr. Bluestone's faxes violated the Telephone Consumer Protection Act of 1991 as well as the Junk Fax Prevention Act of 2005.

In his defense, Mr. Bluestone argued that the faxes were not legal advertisements because the newsletter was an informational message and the contact information was merely an "incidental advertisement."

The trial court disagreed and ruled that the faxes were legal advertisements for Mr. Bluestone's services and awarded Mr. Stern $1,500 for each of the faxes he received.

In June of this year the New York Court of Appeals reversed that ruling, holding that the faxes were informational messages per the FCC and not unsolicited advertisements.

According to Matthew Goldberg of the American Bar Association's Litigation Division, this decision is important to legal bloggers (or blawgers) because it could affect state bar association's attempts to regulate attorney speech on the internet. In fact the Florida Bar has said that websites "cannot be easily categorized as either information at the request of a prospective client...or as advertising in a medium that is totally unsolicited and broadly disseminated to the public."

So, is this blog advertising? Or is it informational? In fact, are all legal blogs advertising or are they a source of information? Should state bar associations be able to regulate the content that appears on a legal blog? More importantly, should state bars be able to regulate the content of any blog that is authored by an attorney - regardless of the blog's subject matter?

Tuesday, October 27, 2009

Austin city council says no to vampire cops

The Austin city council passed a resolution this past week stating that it is the council's "clear will" that Austin police officers not personally take blood specimens from motorists arrested for driving while intoxicated. Council members originally sought a vote on a proposal that would have directed the city manager to block officers from collecting such samples from drivers.

After being told by the Austin City Attorney's Office that such a proposal would conflict with provisions in the criminal code authorizing officers to use all lawful means to enforce the law, the council decided to vote on the non-binding resolution.

Austin Police Chief Art Acevedo told the city council that the department had abandoned plans to train officers to become licensed phlebotomists.

The new resolution directs the City Manager to develop clear guidelines by February 2010 for the collection of blood specimens by Austin police. Meanwhile, the Austin Police Department is in talks with the Travis County Sheriff's Office about training personnel at the county jail to draw blood from DWI suspects.


As attorneys we are given a certain degree of control over other people's lives. This is true if you're a criminal defense attorney, an assistant district attorney, a personal injury attorney, a divorce attorney or a property attorney. Someone comes into your office, sits down across a table from you and grants you the power to make certain decisions on their behalf.

One of the hardest things for an attorney is to accept that there are some situations over which we have no control. Monday night was such an occasion for me.

We were in the process of moving and our garage was full of stuff that had not yet found its way inside our house. My oldest daughter had a shoe rack hung over the back of the door leading from the house to the garage and was putting her shoes in it.

I was in the other end of the house getting our internet connection up and running when I heard a shattering sound and the screams of my daughter. My wife couldn't see what happened because she couldn't open the door to the garage. When I ran into the garage I saw my daughter standing in a pile of broken glass from the table upon which she had been standing. I could also see the blood on the floor.

My wife and I cleaned her feet, wrapped them and drove off to the emergency room. By the time we got there my daughter had calmed down and I carried her inside in my arms. Everything was fine as the doctor examined her feet until she had to probe inside the cuts in search of glass shards. She told us she had to inject a local anesthetic into our daughter's feet.

I have never felt so powerless as I did that night holding my little girl tight while she screamed in pain as the doctor injected the anesthesia. There is nothing worse than looking into your child's eyes and telling them there is nothing you can do to stop the pain.

It's a very humbling experience and it reminds us of how little about our world we actually have control over.

No such thing as a free stadium

The Houston Sports Authority, after telling voters that their taxes would not be affected by the new wave of stadium-building, is now having to go back on its word as balloon payments have come due on $117 million in bonds.

The bonds for these playpens for the rich owners of Houston's sports franchises were insured by MBIA - a firm that was downgraded by analysts. The downgrading causes investors to turn around and run away. The bonds were subsequently bought up by JP Morgan Chase and converted into a loan. Now the piper is calling.

The only options seem to be acquiring a line of credit either through JP Morgan Chase or UBS -- but either option would cost the sports authority $7 million a year.

So now Harris County taxpayers are going to be asked to pony up to pay down the debt on stadiums that were paid for with public funds yet handed over to private interests. It's called reverse welfare and the only beneficiaries are Drayton McLane, Leslie Alexander and Bob McNair.

Friday, October 23, 2009

Minnesota man busted for DWI in his recliner

Here's something light for your weekend...

Dennis Anderson of Proctor, Minnesota pled guilty to driving while intoxicated after he crashed his motorized La-Z-Boy recliner into a parked car after leaving a bar. Mr. Anderson's recliner was powered by a converted gasoline lawnmower engine and was capable of speeds of up to 15 mph.

Mr. Anderson's alcohol concentration was .29, more than 3 1/2 times the legal limit in Minnesota.

Proctor police impounded the recliner and intend to sell it at the next police auction.

Harris County prosecutor accused of hiding exculpatory evidence

Harris County Assistant District Attorney Denise Oncken was accused by defense attorneys of hiding Brady material in a child sexual assault case. Ms. Oncken is the chief of Harris County's Crimes Against Children division.

According to defense attorney Bill Stradley, Ms. Oncken hid evidence that the alleged victim originally said her assailant was black, not white.

First Assistant District Attorney Jim Leitner, a former defense attorney until his appointment by Pat Lykos, denied the allegations. Mr. Leitner also added that even though defense attorneys ask to review prosecutors' files -- they often only spend a fraction of the time that he thinks it should take to process the data.

Obviously Mr. Stradley spent enough time reviewing the file to locate the evidence that the state failed to disclose.

A hearing on the matter was scheduled for today.


At today's hearing, Visiting State District Judge Van Culp ruled that the prosecutor should have turned over the information about the alleged victim's original identification. The judge then ruled that because the information was discovered prior to trial that a mistrial was not warranted.

City loses bid to keep red light camera documents secret

Earlier this month, State District Judge Tracy Christopher ruled that the City of Houston cannot keep documents regarding the city's red light camera program secret. Following a lawsuit filed by Houston attorneys Randall Kallinen and Paul Kubosh regarding the city's refusal to release records documenting an increase in the number of accidents at intersections controlled by red light cameras, the judge ordered the city to release most of the requested documents.

The documents are to remain confidential, according to the order, pending an appeal by the city.

The documents were requested after it came to light that the Houston Police Department asked the authors of a city-commissioned study not to count accidents that occurred more than 100 feet from a monitored intersection or accidents at monitored intersections in which no red light camera citation was issued.

Wednesday, October 21, 2009

Former Dallas crime lab employee to file whistleblower suit against lab

A former forensic biologist in the Southwestern Institute of Forensic Science (SWIFS) lab in Dallas has announced he will file a "whistleblower" lawsuit against the institute, alleging that he was fired in retaliation for pointing out problems with Dallas County's crime lab.

"The evidence may have blood flakes on them or hair and fiber on them," Nulf explained. "If you have a box fan going in the background, those fibers could be blown across the evidence, lost forever or cross-contaminated into someone else's evidence."

According to Dallas County officials, Chris Nulf, Ph.D., was fired from SWIFS for insubordination, unsatisfactory progress, being unproductive and not following procedures. Dr. Nulf begged to differ.

Dr. Nulf, in a lawsuit to have been filed today, noted the following problems in the lab:

• an outdated protocol manual used by analysts to conduct their daily work;

• equipment that isn't calibrated;

• analysts using expired chemicals;

• criminal case files stored in an unsecured hallway; and

• a box fan which blew over areas where evidence is examined.

Dr. Nulf and his attorney, Raul Loya, believe that cross-contamination and improperly maintained equipment raise questions about convictions obtained largely as a result of testing performed at SWIFS.

Being tased could be bad for your heart

Taser International, the manufacturer of the Taser, has just issued a warning that firing the 50,000 volt device at someone's chest could cause a "adverse cardiac event." The warning does state that the risk is minimal.

Only one problem here... the Taser is designed to be a non-lethal alternative to shooting someone with live ammunition and the most obvious target is the person's torso, according to 30-year Houston Police Department veteran Mark Clark.

In our current litigious culture, one must wonder whether or not Taser International knew that being jolted by the Taser could cause cardiac arrest all along. The warning could be an attempt by the manufacturer to pass along the blame for "adverse cardiac events" to the law enforcement agencies employing the Taser.

Tuesday, October 20, 2009

US Supreme Court says anonymous tips are not enough to justify a DWI stop

The United States Supreme Court voted 4-3 to deny review in Virginia v. Harris, a DWI case in which the Virginia State Supreme Court held that in order to justify a traffic stop based on an anonymous tip, the officer must observe dangerous driving.

In Harris, an anonymous tipster informed Richmond police that Joseph Harris was driving while intoxicated. The arresting officer, acting on this tip, stopped and arrested Mr. Harris for DWI, without observing any unsafe driving or traffic violations. Mr. Harris was convicted at trial for driving while intoxicated, but that conviction was overturned by the state Supreme Court.

In a strongly worded dissent, Justices John Roberts and Antonin Scalia decried the Court's denial of cert. Justice Roberts claimed the ruling gives drunk drivers "one free swerve" before they can be stopped legally by police. Justice Roberts continued: "It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check."

If you want difficult, Justice Roberts, try explaining to our children that we sacrificed the presumption of innocence, privacy and due process rights as well as constitutional protections for citizens in the name of public safety. Men and women have died defending those rights and protections and we gladly give them away in order to fight our bogeymen -- drunk drivers and terrorists.

It's easy to take away rights, liberties and protections for those who commit unpopular crimes and support unpopular causes -- but if we don't stand up and protect those rights now, one day we will wake up and they will be but a distant memory.

Harris County balks at Houston's plan to withhold registration from red light camera scofflaws

Harris County has told the City of Houston that they are opposed to the city's plan to withhold automobile registration for people who have outstanding red light camera tickets. County commissioners have described Houston's red light camera program as a money grab and are reluctant to do the city's bidding if it would result in the loss of county revenue.

“The downside is becoming a tool of the city for their incredible revenue grab. It's come to look like it's more of a revenue situation than trying to change people's behavior.” -- Steve Radack, Commissioner, Precinct 3

Harris County currently receives a third of the registration fee plus an additional 5% for county roads and bridges.

Since instituting the program in May 2006, the City of Houston has collected about $21.3 million from the cameras with approximately $16 million still uncollected. Red light camera tickets are civil violations that are fine only as the state would be unable to prove who was driving the car at the time it triggered the camera.

Polk County breath tests deemed invalid

This is the text of a letter sent out by Polk County (TX) District Attorney William Lee Hon earlier this month:
It has been brought to my attention by the Department of Public Safety's Regional Intoxilyzer Supervisor that the results of certain breath tests conducted in Polk County have been deemed unreliable. Through no fault of the Criminal District Attorney's Office or local law enforcement agencies, the results of all breath tests conducted on the Intoxilyzer machine used by Polk County from August 2008 through August 2009 have been deemed "invalid" because the required certification for the Intoxilyzer was not issued.

While this development will impact some cases more than others, notification of every defendant or defense attorney whose case may have been affected is the proper response given the duties of my office. That way, each of you can decide for yourselves the proper course of action in light of this disclosure.
Oops. As a result of someone not processing the proper paperwork, the machine in question was never certified as being approved for evidential breath alcohol testing in Texas. Therefore, no test conducted by that machine would be admissible in a criminal proceeding.

Monday, October 19, 2009

What's good for the goose...

Texas Gov. Rick Perry is fighting efforts from news organizations to obtain an memo from his general counsel recommending a 30-day reprieve for Cameron Willingham, quite likely the first documented innocent man executed by the State of Texas.

The blow-dried one has blocked release of the advisory memo claiming the release of the memo would violate the attorney-client privilege. Prior to the state-sponsored murder of Mr. Willingham, the governor's office received a forensics report indicating that the fire that killed Mr. Willingham's children could not be proven to be the result of arson.

Ironically enough, in 2003, Gov. Perry did not object to the release of execution memoranda written for his predecessor, George W. Bush. Those memoranda were released.

Friday, October 16, 2009

This is the best that Perry can do?

The headline screams that Cameron Willingham confessed to setting the fire that killed his children and led to his murder at the hands of the State of Texas. However, upon closer inspection, this "confession" dissipates in the air as you look into it.

It turns out that the affiant is the brother of Mr. Willingham's former wife. According to Ronnie Kuykendall, his sister, Cameron Willingham's ex-wife, cried as she told him that Mr. Willingham confessed to setting the fire.

So, the best the well-coiffed governor's minions can come up with to justify his refusal to halt the murder of Mr. Willingham is an affidavit containing hearsay within hearsay. Torpedoing the forensic committee's investigation into the junk science propounded by arson investigators and releasing worthless affidavits - how's that for a campaign slogan?

I guess it beats "I killed an innocent man -- Vote for me!"

Thursday, October 15, 2009

Can't wait to hear his next campaign slogan

Tangipahoa Parish (La) Justice of the Peace Keith Bardwell will not marry a mixed race couple because he doesn't think the marriage stands a chance of surviving. Mr. Bardwell said he asks prospective couples if they are a mixed race couple and, if they are, he refuses to marry them.

“I'm not a racist. I just don't believe in mixing the races that way. I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.” -- Justice of the Peace, Keith Bardwell

Despite a Supreme Court ruling in 1967 that Virginia's ban on interracial marriage was unconstitutional, Mr. Bardwell believes that his stance is legal. In defense of his position, he said that neither white society nor black society was ready to accept the children of an interracial relationship.

I must wonder sometimes if folks like Mr. Bardwell even believe the garbage coming out of their mouths. Using his logic, since half of all marriages end in divorce, maybe Mr. Bardwell should refuse to marry anyone.

Yep, these are the folks we elect to sit on the bench. Makes you stop and wonder.

Wednesday, October 14, 2009

Houston's no-armed bandits

I got a parking ticket today. I earned it. Of course it was maddening that the ticket was issued less than 5 minutes before I returned to my car from the courthouse. But, then again, there have been plenty of times that I overran my time and didn't get a ticket so I guess I end up ahead in the end.

However, the no-armed bandits the City of Houston installed on downtown streets are notorious for not printing out time slips after someone feeds the meter. Standard practice has always been to put a note on your dash stating the time you parked and how much you paid and the fact that no slip was printed.

Today I saw a car whose owner had done just that. In fact, there was another car a couple of spaces over that had a similar note on its dash. For whatever reason, the meter maid (I have no idea what they're called these days) felt the need to ticket one of the cars and not the other. Now, in order to beat that ticket, the driver is going to have to subpoena maintenance and payment records for that particular machine and hope that the hearing officer will actually read the records and listen to his argument.

The city used to have parking meters all over downtown. They worked great. You could come back and feed them as necessary and -- if you were really lucky -- you might pull up to a meter that had time left on it. A few years ago the city installed new machines that print out time slips to show how long you could park your car downtown. Because the slips list the time your privilege expires, you can't go back and feed the meter as you go. And you can't take advantage of someone else's generosity and take their space before the meter expires.

Just another way of nickeling and diming the citizenry.

Tuesday, October 13, 2009

Called out? By whom?

The level of debate in our society continues to rise every passing day. Some unnamed person sent the following message to me via the e-mail link on my website. I apologize for the vulgar language used by our scholar -- but I think it proves my point.

name = Judge Dread
email =
phone = 555-555-5555
comments = Paul Bunyon Kennedy I am Calling YOU OUT....JACKA$$!! You look like you are still wet behind the ears. Now you are Sniveling like a little brat. Guess you didn't get the memo carrot-top. Mark Bennett From was the individual that did that to make himself feel special while picking on someone that can't defend themselves. So I made a special blog for all you idiots that jumped on his cock to what gain? has the truth behind scummy lawyers like bennett. DOn't be a pu$$y paul and take it like a man. You have two choices at this point Paul. Take down all posts that are attacking lawyers and I go away forever or Don't and You experience first had what it feels like to be on the other end. So Paul....."I'm calling you out, Paul Kennedy".....Can you afford to play? Stupid A$$

As I have said before, cowards make anonymous attacks. I don't hide behind a cloak of anonymity when I post blog updates. I don't make anonymous comments on other blogs. I certainly don't make anonymous threats.

I suspect I know who is behind it. But, much like the cockroaches that scurry in the light, I'm sure he won't show his face.

Where there's smoke...

The ousted chairman of the Texas Forensic Science Commission, Sam Bassett, says that lawyers representing the blow-dried one, Gov. Rick Perry, twice tried to pressure him into dropping the panel's investigation of the Cameron Willingham case. Mr. Bassett was so concerned about the pressure being placed on him that he consulted with an aide to Texas State Senator John Whitmire (D-Houston).

Mr. Bassett says that when the governor's attorneys, David Cabrales and Mary Ann Wiley, met with him in February 2009 they told him the commission was wasting taxpayers' money examining old cases. He said he was told the commission should be more "forward thinking."

Sen. Whitmire has said he will push Williamson County D.A. John Bradley, the new commission chair, to continue the panel's investigation into the Willingham case.

It would appear that Gov. Perry is running scared. How would it look to the voters if it turned out Texas murdered an innocent man on his watch?

Harris County to raze "old" jail

Harris County commissioners today accepted a report from architecture firm PGAL that recommends tearing down the eyesore that is 1301 Franklin. The building was erected in 1980 to serve as the county jail but jail operations were moved to 1200 Baker in 2002 after the building failed a Texas Commission on Jail Standards review due to its faulty smoke removal system.

The firm estimated it would cost $37 million to renovate the building and $4.4 million just to bring it into compliance with the city fire code.

Due to the sheer size and construction type of the existing building and its inherent code deficiencies, the overall renovation costs add a significant premium to any of the proposed uses. The result is that the proposed renovated space is not only less efficient but it is also more costly than the construction of new comparable space. Since no suitable use can be found for the building that is economically viable, the building should be demolished and the site utilized for another function. -- PGAL report.

Oh, the efficiencies of local government. An ugly, massive concrete structure that couldn't even serve it only purpose. And these are the folks that want us to approve construction of a new jail.

All I ask is that the county hire a demolition firm that will implode the building so that we can at least get a good show.

Monday, October 12, 2009

Are anyone's rights safe when someone is suspected of DWI?

A Chicago emergency room nurse was handcuffed in the hospital and placed in the back of a police car by an officer after telling him a DWI suspect had to be admitted into the hospital before she would do a blood draw.

The nurse, Lisa Hofstra, was the charge nurse on the night of August 1 when an officer approached her at 4am and asked her to perform a blood draw on a suspected drunk driver. Ms. Hofstra informed the officer that the suspect would have to be admitted to the hospital before any blood work could be performed. The officer apparently didn't like that response and before Ms. Hofstra could inform hospital administrators she was handcuffed and escorted out of the hospital. (See video here.)

I guess it's not enough that the state legislature has stripped motorists suspected of drunk driving of their basic constitutional protections - now the police are going after emergency room nurses who perform their job -- caring for patients -- instead of jumping when asked to by a police officer.

Ms. Hofstra has filed suit in federal court over the incident.

Saturday, October 10, 2009

State's breath test expert sentenced to a year in prison

Dee Wallace, the disgraced breath test machine technical supervisor, who filed fake maintenance records on the Intoxilyzers under her watch, was sentenced to a year in prison yesterday. It is estimated that some 4,000 DWI convictions in Harris and Galveston counties could be affected by Ms. Wallace's deceit.

While there may be some solace in the fact that Ms. Wallace is reaping her just rewards, those who were victimized by her lies must go through the process of filing writs and obtaining court orders to recover the money they spent on fines, court costs, probation fees and surcharges.

I'm still troubled by how easy it was for Ms. Wallace to manipulate the system as long as she did. The problem is she was the one who got caught. How many other technical supervisors monkey around with their maintenance records? Ms. Wallace got away with it as long as she did because she handled a number of machines in two counties on a contract with the Texas Department of Public Safety.

If it's that easy to manipulate the maintenance records, how hard would it be to manipulate the machine? There's a reason the State of Texas tells CMI not to ship an operator's manual with the machine. There's a reason CMI fought tooth-and-nail to keep from having to turn over the Intoxilyzer's source code.

At the end of the day, can you really believe anything that comes out of that machine?

Friday, October 9, 2009

Governor appoints new members to forensic science panel

The well-coiffed one, Texas Governor Rick Perry got around to appointing two new members to the Texas Forensic Science Commission, just a little over a week after causing the panel to scuttle a session that many believe would be critical of the arson investigation that resulted in the state-sponsored killing of Cameron Willingham. (See "Forensic panel cancels meeting after Gov. Perry dismisses three members.")

Joining Williamson County District Attorney John Bradley and Norma Farley, chief pathologist for Cameron and Hidalgo Counties are Fort Worth criminal defense attorney Lance Evans and Randall Evans, the head of the Bexar County Medical Examiner's Office.

When asked why Perry chose to replace four committee members, his spokesman replied that their terms were up and the governor wanted someone else on the committee.

No word on when the hearing on arson investigation, originally set for October 2, will be rescheduled.

Wednesday, October 7, 2009

Houston mayor singing different tune on immigration as Senate campaign heats up

Has Mayor Bill White flip-flopped on screening county inmates' immigration status? Shortly after HPD Officer Rick Salter was critically wounded after being shot by a non-citizen, Mayor White announced that the City of Houston would take part in an ICE program to identify inmates who were not in the United States legally.

Now, US Senate candidate Bill White says he doesn't think the city should participate in ICE's 287(g) program in which jailers are trained to determine inmates' immigration status. White now says he favors the city participating in ICE's Secure Communities program in which officers would be notified when someone being fingerprinted has an immigration record.

White claims he never wanted to participate in the 287(g) program that would cost the city between $1.5 million and $2 million a year.

The question is, did White change his tune because he doesn't want local law enforcement officers to become de facto immigration agents or because he needs the support of Latin voters in Texas to become the first Democratic senator from Texas since Lloyd Bentsen?

Tuesday, October 6, 2009

It might not be a crime today, but check back tomorrow

Should violating federal regulations relating to the import and sale of orchids result in a criminal conviction? Is there a need for armed federal agents to conduct exhaustive searches for paperwork related to the import and sale of orchids? Was justice served by imprisoning a 66-year-old Texas man for not filling out all of the forms required by los federales?

That's exactly what happened to Spring resident George Norris in 2004. As a result of not dotting every "i" and crossing every "t" when importing and selling orchids, Mr. Norris ran afoul of the U.S. Fish and Wildlife Service. Mr. Norris subsequently spent two years in federal prison for committing an act that scarcely rises to the level of criminal activity.

Most criminal acts in Texas require some sort of culpable mental state - such as intentionally, knowingly, recklessly or negligently. There are but a handful of so-called "strict liability" crimes in Texas -- the most prominent being driving while intoxicated.

Los federales, on the other hand, carry scads of strict liability crimes on the books -- many of which are aimed at companies who violate environmental regulations.

Strict liability has its place -- in the civil courthouse.

Handling conflict in the courtroom

Seattle plaintiffs' attorney Paul Luvera offers sage advice for handling conflict in the courtroom. If it feels as though opposing counsel is always at your throat, do as Gerry Spence does. Wait until the rant is over. Pause. Address the court with a smile on your face. Maintain your calm demeanor -- no matter how hot you are under the collar.

As Mr. Spence would suggest, contrast your mood and demeanor with that of opposing counsel. Don't allow yourself to get drawn down into the gutter.

Mr. Luvera ends with a quote from Seneca: "He is most powerful who has himself in power."

Monday, October 5, 2009

Presumption of innocence? What presumption of innocence?

So much for that whole inconvenient presumption of innocence thing down in Jackson County. This is a display that adorns the grounds of the Jackson County Courthouse in Edna, Texas.

No word on how many of those cases were dismissed or resulted in acquittals, nor on how many of those cases are still pending.

Friday, October 2, 2009

I guess I just don't always play well with others

Growing up in Texas I learned at an early age that if you've got a problem with someone for what they said or did, you talk to that person about it. Face to face. It was called being a man (or in this age of enlightenment -- being an adult). Attacking someone anonymously was, and remains, the act of a coward.

I had to deal with a coward down in Fort Bend County this morning. While I don't know with absolute certainty who that coward is, I have a pretty damn good idea. And if that coward is reading this post, I would appreciate it if you would act like an adult and acknowledge yourself. I'm not holding my breath, however.

I had a client appearing on an arraignment setting on a second DWI. After the docket was called, the bailiff (and I want to make this crystal clear -- the bailiff who was involved in this situation handled everything professionally and treated everyone involved with the utmost respect) took my client into the back hall and asked me to come with him. It turned out that Judge Lowery had signed an order revoking my client's bond for an alleged violation of a bond condition that the assistant prosecutor couldn't even point out.

That same prosecutor told me my client had two options this morning: he could accept her offer or he could go into custody until a new bond was set.

I asked the prosecutor if we could approach the judge to discuss this alleged violation and she said no. She told me that only the judge who signed the revocation order could hear the matter. So I headed upstairs to find out when we could get a hearing scheduled. On the way out I told the assistant prosecutor she had a problem with her probable cause affidavit and that we would need to approach the judge on that issue as well.

So up to Judge Lowery's court I went. Just before it was my turn to approach the bench, who should appear out of nowhere? Oh my, it was the assistant prosecutor! She and the judge proceeded to have a conversation -- I think it's a fair bet that they were discussing my client's case without my being present. Oh, what's a little ex parte communication between friends, anyway?

Judge Lowery then told me that we would have to go back downstairs to request a bond hearing after the sitting judge returned from out of town. Interestingly enough, on the revocation order, the judge had written that there would be no new bond until a hearing was held but then it would be set at a given amount with enumerated conditions. First the verdict, then the hearing?

Now it's back to the original court where we approach the judge on my motion to dismiss the information due to an invalid probable cause affidavit. During our time before the judge, the assistant prosecutor not only mislead the court on the purpose of our appearance in court this morning -- she also proceeded to argue a motion that wasn't before the court. Of course we should have a pretty good idea of how my motion before the bench fared. Ironically enough, without being asked, the judge set the bond at the amount listed in the revocation order along with the listed conditions.

As I left the courtroom the bailiff (the same gentleman I mentioned previously) asked me to come outside to the hallway so we could talk. I knew this couldn't be good. I know I was being a pain in the backside of the court and the prosecutor -- but that's my job -- but I couldn't think of anything I had done that would fall outside the lines. What happened next shocked me.

The bailiff told me that Judge Lowery told him that another attorney told her that I had alcohol on my breath. I told the bailiff that I had not been drinking. He told me he didn't want to take me in for public intoxication (WTF?) and asked if I thought I was okay to drive. I assured him I was. He then told me he didn't think I was drunk because he heard me arguing the law to the judge. I told him I knew he was only doing his job and I left -- steamed beyond all belief.

Now who is this coward of whom I speak? Before I approached Judge Lowery I was among my brethren on the defense bar. The only other attorney at the bench when I approached was the assistant prosecutor.

I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County slandered me before the bench -- behind my back, no less. I'm not going to sit here and tell the world that an assistant prosecutor in Fort Bend County tried to have me arrested because I wouldn't roll over. I will say this much, however. If Judge Susan Lowery thought I was intoxicated or smelled of alcohol in court this morning - she didn't have the decency to tell me to my face.

I have a damn good idea who the coward is. I'm also willing to bet that he or she isn't going to come forward anytime soon. Always remember that a brave man dies but once while a coward dies a thousand times.

Thursday, October 1, 2009

What part of no probable cause doesn't she get?

Probable cause is the level of proof needed to support an arrest decision. It is more than reasonable suspicion, but far less than a preponderance of the evidence. It is all the proof the Texas Department of Public Safety needs to suspend your driver's license if you were arrested for driving while intoxicated.

Recently I appealed an ALR suspension and got a reversal. In the order reversing the administrative license suspension, the court found that "the evidence was insufficient to establish that probable cause existed to believe that the petitioner had lost the normal use of his mental and physical faculties due to alcohol intoxication at the time of his arrest."

In other words, there wasn't probable cause to arrest my client for driving while intoxicated.

The order went on to reverse the suspension and remanded the case "for further proceedings consistent with this judgment." (Emphasis added.)

In order to suspend a driver's license when the driver declines to take a breath test, the DPS must show:

1. that reasonable suspicion to stop or probable cause to arrest the driver existed;
2. that probable cause existed that the driver was driving while intoxicated;
3. that the driver was placed under arrest and asked to submit to a breath test; and
4. that the driver declined the breath test.

The attorney for the DPS apparently had a hard time figuring out what probable cause was as she refused to dismiss the case and insisted on a rehearing - still claiming that the suspension should be upheld because the traffic stop was good. Of course the administrative law "judge" didn't seem to grasp the concept of probable cause either as he denied my motion to dismiss based on the county court's order reversing the suspension.

The deck is already stacked against citizens accused of driving while intoxicated fighting a license suspension. The problem is only compounded when the attorneys for the DPS and the administrative law "judges" can't figure out what probable cause is.

The saga continues...

Forensic panel cancels meeting after Gov. Perry dismisses three members

Forty-eight hours before the Texas Forensic Science Commission was set to meet to discuss a report that was critical of the arson investigation in the Cameron Willingham case, Governor Rick Perry replaced three members of the commission, forcing it to cancel Friday's meeting.

The impeccably coiffed governor named Williamson County District Attorney John Bradley and forensic scientist Norma Jean Farley to take the now-vacant seats on the commission. The third new member will be named after the Texas Association of Criminal Defense Lawyers (of which I am a member) provides a recommendation.

Perry told The Associated Press the terms of the dismissed board members were expiring and replacing them "was pretty standard business as usual." But several board members have served more than one term and had their appointments renewed.

Earlier this month, Perry expressed confidence in Willingham's guilt and derided reports questioning the arson investigation, referring to their authors as "supposed experts." He said he had not "seen anything that would cause me to think that the decision" to execute Willingham "was not correct."

Craig Beyler, an arson expert from Baltimore, issued a report that was highly critical of the investigation undertaken by Deputy State Fire Marshal Manuel Vasquez in the Willingham case. Appointing a prosecutor, especially from Williamson County (north of Austin), is a nice touch from the blow-dried one since most prosecutors just assume that if you're a defendant that you must be guilty.

Nixon had his Saturday night massacre, Perry has his Wednesday night drive-by.

I guess the anticipation was just too much for Perry to bear -- after all, it doesn't do much for one's reputation to be the one in charge when an innocent man was sent to his death.

In other news, the fox has been been chosen to guard the hen house.