Catching a tiger by the tale

Tiger Woods has now found himself in No Man's Land in the aftermath of his off-road excursion outside his Orlando mansion.

He is caught between the demands of his public image on the one hand and a criminal investigation on the other. Only two people know what really happened Thursday night in the Woods' household and neither one of them are speaking.

On the PR side of the equation, Tiger Woods has an image to protect and all the speculation about what went on that night is not doing him much good. To protect that image, Mr. Woods needs to get ahead of the curve and tell his fans and sponsors what happened and how he managed to crash his SUV into a tree just a few yards from his house.

On the other hand, however, law enforcement wants to know what happened as well and anything that Mr. Woods puts out publicly is going to be used by local law enforcement to pin something on someone. When you, or a family member, is the target of an investigation, the best thing to say is nothing.

And thus the dilemma that Mr. Woods is facing. It's a safe bet that no one is buying the story that Tiger Woods is a bad driver and that his wife rescued him by busting out the rear window of the SUV with a golf club. It's also a fairly safe bet that alcohol wasn't involved as I dare say the Florida Highway Patrol would not be so polite in waiting to interview Mr. Woods if he were suspected of driving while intoxicated.

If the truth is that Tiger Woods and his wife had a fight over his alleged adultery and that she scratched him on the face and chased him out of the house swinging a golf club, Mr. Woods' public persona will take a nasty hit. It's also true that taking a PR hit may be the only way to prevent domestic assault charges from being filed against his wife.

UPDATE:

Tiger Woods was cited today (12/1/09) for "careless driving" by the Florida Highway Patrol. The charge carries a fine and 4 points against his driver's license if convicted. Of course with no witnesses to the incident, it might be a bit hard for the state to prove its case.

Giving attorneys a (really) bad name

Harry C. Arthur, a Houston attorney, has filed suit against a church-run organization that provides meals and other amenities for the homeless, seeking to shut down their outreach program. Mr. Arthur complains that the homeless who congregate near the Beacon's site in downtown Houston are a nuisance to area businesses and he wants the organization the provides services to the homeless shut down.

Maybe Mr. Arthur doesn't realize that shutting down the Beacon won't cure Houston's homeless problem -- it will only move it elsewhere. Maybe he doesn't want to be reminded of the great disparity of wealth we see in this country, or maybe he doesn't want to have to think about the toll alcohol and illegal drugs have taken on our population.

It's more than a bit unseemly that we have no problem building playpens for the wealthy (i.e. Minute Maid Park, the Toyota Center and Reliant Stadium) but no one wants to spend the money to ease the homeless situation in this city.

Now how come New York got all the attorneys and New Jersey got the toxic waste sites?

It lives! The Fourth Amendment lives!

In a decision handed down on October 29, 2009, the United States Court of Affirms, er... Appeals for the Fifth Circuit, reversed a trial court ruling and ordered evidence in a drug case obtained by a warrantless search be suppressed.

In US v. Menchaca-Castruita, McAllen (Texas) police were called to investigate a large marijuana stash and an alleged assault. It turns out that Mr. Menchaca was two months behind in his rent when his landlord knocked on his door. When Mr. Menchaca didn't answer, the landlord's husband went around and knocked on a window and asked Mr. Menchaca to come to the door. When he opened the door, the landlord was shocked to see packages of marijuana in the living room.

Mr. Menchaca offered to pay his back rent immediately if the landlord would just forget about what she had seen. When she threatened to call the police, Mr. Menchaca begged her not to do so. After she called the police he grabbed a tire iron from his truck and threatened the landlord -- never touching her. Then he left.

When the local police arrived an officer went to the door of the rental unit (it was partially ajar) and, smelling marijuana, went in without a warrant. He must have thought he hit the mother lode when he found over 700 pounds of pot in the house.

Mr. Menchaca was arrested shortly after returning to the house to retrieve his belongings and he was charged with aggravated assault (state offense) and possession with intent to deliver marijuana (federal charge).

Mr. Menchaca filed a motion to suppress the evidence obtained through the search arguing that the warrantless search was unreasonable given the circumstances. The prosecutor argued that exigent circumstances existed and that the officer was justified in entering the house without a warrant. At the suppression hearing the officer testified that he was worried for his safety, and the safety of others, because drug dealers tended to have firearms, and other weaponry, near their stashes.

The trial court ruled against Mr. Menchaca who was later found guilty after a bench trial.

On appeal the Court found that there were no exigent circumstances justifying the warrantless search of Mr. Menchaca's house. The Court pointed out that the evidence indicated that there was no one in the house when the officer arrived. The Court also found that there was no danger of the evidence being destroyed as the area was secured by police officers. In addition, testimony at the hearing on the motion to suppress indicated that the house was in a municipality and that it would have been relatively easy for the officer to obtain a search warrant for Mr. Menchaca's house.

In its decision, the Court pointed out that a warrantless search based upon exigent circumstances should be the exception, not the rule.

State troopers on the prowl for drunk drivers

If you're planning on cruising the highways in the Lone Star State this holiday weekend, you might want to watch your speed, make sure you're buckled in and find a designated driver.

The Texas Department of Public Safety has announced state troopers will be on the lookout for speeders, drunk drivers and unrestrained passengers over the Thanksgiving holiday. Last year over the Wednesday through Sunday holiday weekend, state troopers arrested 252 motorists on suspicion of drunk driving. Let's do some math...

That's 252 motorists whose licenses would have been suspended for either failing or declining a breath test and who would have been charged a $125 reinstatement fee to the DPS. That comes out to $31,500 in potential reinstatement fees. Those same 252 motorists could have faced surcharges of $3,000 for a DWI conviction. That comes out to $756,000.

That means the DPS had the potential to score $787,500 in fees over the holiday weekend. And this figure doesn't even include the possible fines and court costs the counties could have picked up (if we figure an average of a $500 fine and $300 in court costs - that's potentially $201,600 for the counties involved).

Yep, driving while intoxicated is big business in Texas.

Judge overturns conviction based upon actual innocence

In New York, Manhattan Supreme Court (trial court) justice John Cataldo reversed a conviction on appeal on the grounds that the defendant had proven his actual innocence by clear and convincing evidence.

It has long been the rule that in order to appeal a conviction a defendant had to show he was harmed by a trial court's ruling or that there was no evidence that was not available at his trial. Whether one was factually innocent or not was not a question the appellate courts were concerned about.

Judge Cataldo's order in New York v. Bermudez might change the calculus. In his order, Judge Cataldo released Mr. Bermudez, after serving 18 years in prison, and ordered the indictment dismissed without prejudice.

DIVERT = deferred adjudication

I overheard a little pow-wow with the prosecutor, defendant and defense counsel on a DWI case in Harris County Criminal Court at Law No. 3 on Friday. The judge asked the defendant for his plea in the case and the defendant responded "guilty."

The (visiting) judge then told the defendant he was being placed into the DIVERT program and that if he completed the terms of his probation the case would be dismissed.

Umm... not so fast.

As pointed out in a previous blog update ("New DWI program sounds more and more like deferred adjudication," September 14, 2009), the Texas Code of Criminal Procedure allows a judge to accept a plea of guilty or no contest but to defer a finding of guilt until such time as the defendant has completed the terms of a probation. Should the defendant complete the terms of the probation, the court will dismiss the charge -- should he fail to complete the terms of the probation, he would be found guilty and could face the maximum range of punishment allowed for that offense.

A person whose case is disposed of through deferred adjudication is not eligible to have that case expunged from his criminal history -- at best he is eligible for an order of nondisclosure which would prevent law enforcement agencies from releasing information on the case to anyone outside law enforcement or a handful of state and federal licensing agencies.

The Code of Criminal Procedure also states that deferred adjudication may not be offered on a DWI case.

I don't know who the defendant was and I don't know if what the judge did in his case will come back to bite him two or three years down the line, but this is further evidence that DIVERT is nothing but an attempt to skirt around the law.

What's a qualified vampire, er, technician?

Section 724.017 of the Texas Transportation Code governs the admissibility of evidentiary blood samples in DWI cases. The codes says:

(a) Only a physician, qualified technician, chemist, registered professional nurse or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place...

(c) In this section, "qualified technician" does not include emergency medical services personnel.

The State of Texas does not oversee the regulation of lab technicians, but most labs require certification from associations such as the American Society for Clinical Pathology (ASCP).

To earn certification from ASCP as a medical laboratory technician, a candidate must meet the following requirements:

1) Have an associate degree or at least 60 semester hours of academic credit from an accredited school.

plus

2a) Complete a NAACLS accredited program within the last five (5) years; or

2b) Have 6 semester hours of chemistry or 6 semester hours of biology and CLA certification; or

2c) Have 6 semester hours of chemistry or 6 semester hours of biology and completion of a fifty (50) week U.S. military medical laboratory training course with official notarized documentation; or

2d) Have 6 semester hours of chemistry or 6 semester hours of biology and three (3) years of full time clinical laboratory experience in Blood Banking, Chemistry, Hematology, Microbiology, Immunology, and Clinical Microscopy in the U.S., Canada, or CAP/The Joint Commission accredited laboratory within the last ten (10) years.

Satisfying one of the 1) plus of one of the 2a-2d allows you to sit for the MLT (ASCP) exam.

Exam: Pass the ASCP’s Board of Registry’s examination for Medical Laboratory Technician

The Texas Department of State Health Services regulates the licensing of emergency medical services personnel. In order to become a licensed EMT, a candidate must meet the following requirements:

(1) At least 18 years old
(2) Complete high school or GED certificate (Texas Education Agency approved or out-of-state equivalent)
(3) Successful completion of a DSHS approved EMS training course
(4) Submit EMS Personnel Certification Application and fee
(5) Pass National Registry exam
(6) To gain paramedic licensure status, you are required to follow the steps above and submit proof of either a two-year EMS degree or a four-year degree in any field.

Contract this to the training the officers with the Dalworthington Gardens Police Department received...

(1) 14 hours of classroom lecture,

(2) Articles on drawing blood,

(3) Basic phlebotomy test, and

(4) 50 blood draws at a hospital.

If the statute says that a licensed EMT is not qualified to draw blood, then police officers who are provided minimal training and who do not meet the minimum training and education requirements to obtain a medical lab tech certification surely can't be considered qualified enough to conduct forced evidentiary blood draws.

And we haven't even touched on the issue of what qualifies as a sanitary place.

Court upholds suppression of blood test result

Christi Lynn Johnston was stopped on suspicion of driving while intoxicated by an officer with the Dalworthington Gardens Police Department (Tarrant County). After placing Ms. Johnston under arrest, Officer Brett Stinson requested a sample of her blood (department policy was to request a blood sample, not a breath sample). Ms. Johnston declined the request and Officer Stinson set off to obtain a warrant to perform a forced blood draw.

Keep in mind, there was no accident in this case. No one was injured. The officer observed Ms. Johnston's driving and noticed that her registration sticker had expired. A simple misdemeanor and the arresting officer is asking a judge for permission to perform an invasive procedure.

Some four hours after Ms. Johnston's refusal, Officer Stinson and Officer Darren Burkhart returned to draw blood carrying a warrant signed by a municipal court judge. Ms. Johnston resisted and the officers restrained her. They tied her legs to the legs of the chair and one of her arms to an arm of the chair with gauze. Officer Stinson then held Ms. Johnston's free arm down while Officer Burkhart drew her blood.

In Dalworthington Gardens, Joe Del Principe, D.O., (that's doctor of osteopathy) supervises the department's phlebotomy training under which officers attend 14 hours of classroom lecture, take a basic phlebotomy test, are given copies of articles on drawing blood to read and complete a minimum of 50 blood draws at the hospital. This, according to the department, makes the officers competent to draw blood -- although the training falls short of that required for phlebotomy technicians.

According to Section 724.017 of the Texas Transportation Code, in order to be admissible in court, a blood draw must be conducted by medical personnel, including "qualified technicians."

Not once during the blood draw did either of the officers, who both completed the department's course, inquire about Ms. Johnston's medical history. The officers failed to ask Ms. Johnston if she was taking any blood thinners. The officers also neglected to videotape the the blood draw -- even though there was a camera in the room.

Ms. Johnston filed a motion to suppress the results of the blood test on the grounds that the officers did not follow the requirements laid out in the Transportation Code for evidential blood draws.

The trial court sided with Ms. Johnston and ordered the results of the test suppressed on the grounds that the search was unreasonable per the Fourth Amendment because the officers did not follow the prescriptions of the Transportation Code. In particular, the trial court ruled that the officer was not a qualified technician under Section 724.017.

The State appealed the suppression order on the grounds that Section 724.017 was not the exclusive authority on the reasonableness of a blood draw.

The Fort Worth Court of Appeals upheld the suppression in an opinion released on November 5, 2009, in which the Court expressed its concerns that the officers did not ask Ms. Johnston any questions about her medical history, did not record the blood draw and that the department did not have a formal policy on the degree of force to be used when drawing blood from an uncooperative person.

It is important to note that the Court did not make any decision on whether the use of police officers to draw blood was reasonable, nor did the Court rule on whether or not the department's policy on blood draws was reasonable.

According to the Court: "We simply hold that, here, under the totality of the circumstances presented, the trial court did not err by granting appellee's motion to suppress."

Not letting humanity get in the way of politics

Despite a plea from the Texas Board of Pardons and Parole to commute the death sentence of Robert Lee Thompson to life in prison, Governor Rick Perry authorized the poison to flow through Mr. Thompson's veins this evening.

Mr. Thompson, along with Sammy Butler, was convicted of capital murder in the 1966 slaying of convenience store clerk Mansoor Rahim Mohammed during an armed robbery in Houston. Ironically enough, Mr. Thompson was not the one who pulled the trigger - that "honor" went to Mr. Butler who was convicted and sentenced to life in prison because the state couldn't prove intended to kill Mr. Mohammed.

That's right, under Texas' law of parties, anyone involved in the commission of a crime - no matter how small his role - can be found guilty of the whole enchilada. While I understand the law of parties and, to a degree, support it, I can't help but think we should draw the line at capital murder. If we are going to have a death penalty then it must be reserved for the most heinous of crimes and those who perpetrated them - not for the person who drove the getaway car or who watched the door.

It is absurd that the Blow-dried One ignored the parole board and allowed the execution of Mr. Thompson to go forward. All in the name of getting re-elected.

Perry has already presided over the state-sponsored murder of an innocent man and stacked an investigatory body to cover up that very fact. Now this...

My day on the other side of the bar

Here are my tweets - and commentary - from jury duty today...

I have to be downtown an hour earlier than usual. Gotta get a move on. #juryduty

Since docket call is usually at 9am and we have to report for jury duty at 8am, I had to hurry myself along this morning. Unfortunately that meant that my wife was in charge of getting our girls ready this morning.

As usual, I underestimate the time it takes to get downtown. #juryduty

For some reason I have it in my head that I can get from our house to the courthouse in 30 minutes. While it's true that it takes less than 30 minutes to get downtown on Memorial -- I always forget how long it takes to get to Memorial. I wasn't that late.

I see they finally got rid of the metal detectors in the jury assembly room. #juryduty

More on metal detectors later.

While packing up for the move I found a book I hadn't seen before - "The Moviegoer." Looks interesting. #juryduty

Not knowing how much time I had to wait I brought it along. It's got promise. It was written by Walker Percy and won the National Book Award in 1962. The story is set in New Orleans and revolves around a stockbroker living in a world of boredom and sameness. His escape is through the movies.

They just announced that the doors were locked. We are being held captive. #juryduty

"Welcome to the Hotel California..."

Loren Jackson, the new district clerk, has put an emphasis on "customer service:" He's a fellow alumnus of South Texas. #juryduty

I've mentioned it before, but serious props to Mr. Jackson and the work he has done with the District Clerk's office. They are - dare I say it - on the cutting edge of technology when it comes to delivering information to attorneys.

Purpose of voir dire is to pick a "fair and impartial jury?" That's not what I was taught. #juryduty

The last thing I want is an impartial jury. I want a jury whose attitudes and beliefs are such that they will bend over backward, if necessary, to find my clients not guilty. I use every tool in my toolkit to identify the ones I don't want and to allow the jurors to educate themselves on the issues I think are important to my client's case.

Cattle herding time. #juryduty

I've been assigned to a civil panel. Now I'm standing in a blue outlined area in the basement. #juryduty

The deputy clerk calls out a range of numbers and tells the jurors which box to stand in down in the basement. They sent 50-60 jurors to the felony courts and 48 to our court. The clerk gives us a color and we look for the big box outlined with that color tape and stand there and wait for the bailiff. He assigns us new numbers, lines us up and marches us toward the tunnels.

I cheated and used my courthouse pass to avoid the metal detector. #juryduty

There was no way I was going to go through a metal detector if I didn't have to. There really has to be a better way to do this. No one wants to have jury duty and to force the 30% of the people who actually show up to go through a metal detector is ridiculous. The people who show up for jury duty are the same people who usually show up to vote -- I think they have enough sense not to bring a weapon to a courthouse.

We're in the hallway waiting to go in. I know the bailiff from a trial a few years ago. My boss almost got tossed in jail. #juryduty

Back when I was in law school I worked as a clerk at an insurance defense firm. I sat second chair in about a dozen jury trials in and around Houston. One of them was in the 127th Judicial District Court. The judge at that time was Sharolynn Wood.

In this one particular trial, the judge and plaintiff's counsel both taught part-time at the University of Houston Law Center and were well acquainted. There were some rulings that didn't make a lot of sense and hurt our defense at trial. My boss kept trying to get a couple of tidbits into evidence but the door was being slammed shut on him everytime.

He asked a witness a question and, as the witness began to answer the question she thought she heard, the judge yelled at my boss to stop and sent the jury out. She threatened to hold him in contempt if he broached the subject one more time - even though it was the witness who brought up the verboten incident.

Since he was the attorney for the insurance company I guess I shouldn't be too surprised. #juryduty

Apparently the tweet I sent before this one never made it to the ether that is cyberspace. I commented that Plaintiff's counsel was giving a pretty good lesson in how NOT to conduct voir dire. As you will see later, he spent a good 10 minutes telling us how this case ended up in district court with the insurance company as the plaintiff.

While I'm sure his law school professor would appreciate the jurisdictional posture of the case, no one on the panel did and it didn't help him discover how anyone thought or felt about the issues in his case. From there his voir dire was very predictable -- workplace rules on reporting injuries, questioning people who were injured on the job, questioning people on back injuries and whether anyone knew a laundry list of doctors.

He never once asked what I think is the most important question you can ask during voir dire - "Why do you feel that way?"

Attorneys were given 45 minutes a side in a case about money. I'm given 20 minutes to pick a jury in a criminal case. #juryduty

The bailiff is a good-naured fellow but the court reporter has an attitude. #juryduty

The court reporter got quite snarky whenever she couldn't hear what a panelist was saying. She would bark at the juror to speak up or stand up so she could hear -- not once did she use a magic word.

What a surprise. I didn't make the panel. #juryduty

While I still think it would be fascinating to sit back in the jury room and observe a group of strangers deliberate over a case, I can't say I'm too interested in sitting through two days of testimony in a worker's comp case - especially since I have to run soccer practice this afternoon.

It was interesting to see how many folks who made the jury didn't say a word during voir dire. #juryduty

Plaintiff's counsel spent about 10 minutes explaining how the case got to the courthouse. Who cares? #juryduty

No one asked panel our attitudes toward insurance companies or corporate employers. #juryduty

No one went "down the row" with their questions. No looping responses. No one used any scaled questions. #juryduty

Defense counsel - who represented the injured worker - had a good ice breaker. He was more conversational, too. #juryduty

Remember the 80/20 Rule in jury selection - the attorney should speak no more than 20% of the time; let the panel talk. #juryduty

Let there be no mistake, I am no expert in voir dire. I am a sponge, however, when it comes to reading and listening to others talk about about how they do it. I will also say that voir dire at the civil courthouse is a very different beast than voir dire in the criminal courthouse. You would never hear a good criminal defense attorney refer to his client as "my client." In a criminal trial you want to personalize your client for the jury on the belief that it's easier for a jury to convict a "defendant" than it is for them to convict a "person."

Both attorneys referred to their clients as "clients." I found it hard to believe that the insurance company's attorney never tried to humanize the insurer. The injured worker's attorney didn't refer to his client by name -- worse than that, he didn't even sit near him during voir dire. If you can't interact with your client, or show that you are concerned with his or her well-being, then how the hell can you expect a total stranger to care?

Neither attorney made any attempt to get everyone on the panel involved in the conversation. I kid you not when I say that half the folks who are sitting on that jury never answered a question. I know that even with 45 minutes, that talking with 48 people isn't easy -- but that's why you use scaled questions, that's why you go down the line asking everyone in the row how they feel, that's why you loop answers and ask panelists if they agree or disagree with what their fellow juror just said. You can't make a competent choice on a panelist if you haven't spoken with them.

Even though the injured worker's attorney did a slightly better job - I still have no idea who is client is or what he's going through. All I know is that he claims to have hurt his back on the job and needs an interpreter when he testifies.

The judge just walked into El Rey. #juryduty

Just had a nice chat with the judge. He said trying to figure out why a jury comes back with the verdict they do is fascinating. #juryduty

The judge in this case is one of the new judges who was elected last year (has it really been a year since President Obama was elected?). He said his favorite part of his job is the sociological aspect of it. He said he always learns something when speaking to the jurors after they have rendered a verdict in a case.

Look, jury duty can be a royal pain in the backside, but, the United States is one of the few countries that allows trial by jury in just about every case. We all have a constitutional right to trial by jury if we are charged with a criminal offense but that right rings hollow if people don't report for duty.

So, the next time you get that jury summons in the mail, go and enjoy the experience and help this continuing experiment in government by and of the people that's been going on for the last 233 years.

Embedded inside the jury pool

On Wednesday (after having to reset my earlier appointment) I will be performing my civil duty by reporting for jury duty. While I suspect it is unlikely I will be selected to sit on a panel, I am looking forward to seeing what our fellow citizens called for jury duty go through.

I will be tweeting updates over the course of my day with the hashtag #juryduty. At the end of the day I will pull those tweets together into a blog entry.

Google launches legal search engine

There's a new tool out there for anyone needing to conduct legal research on a shoestring. Google Scholar is a new tool for conducting research in scholarly literature. The search engine allows you to conduct searches through both federal and state cases as well as through legal journals.

Type in your search terms and Google will pull cases containing your terms. The cites included in the opinions have hyperlinks to the cases cited. You can also see how and where your case has been cited.

As an example: type in "retrograde extrapolation texas dwi" and the first case on the list is Bagheri v. State. You can read the court's opinion and check out the cited cases in that opinion. Click on "How Cited" and you can review how the case has been cited and where it has been cited. To find out whether the case is still good law you can find the most recent cites and work your way back to the original opinion.

While the system is still in beta, it is a vast improvement over conducting online legal research piecemeal. By bringing these texts and cases together, Google has made it easier to conduct low cost (i.e. free) legal research.

Due process rights? What due process rights?

On November 10, 2009, the Harris County District Attorney's Office filed a motion seeking to recuse Judge Reagan Helm from hearing any domestic violence cases in his court. In its motion, the DA's office cites statements that Judge Helm allegedly made from the bench in five cases. The motion also cites statements Judge Helm made to male defendants who signed emergency protective orders (MOEP's).

Now I wasn't present in the courtroom for any of those cases (that I know of). I know many of the prosecutors who signed affidavits stating that their recitation of Judge Helm's remarks were true and accurate and I don't have any doubts about their truthfulness under oath.

The district attorney is alleging that Judge Helm has a personal bias when it comes to domestic violence. The motion alleges that this bias prevents Judge Helm from being impartial when presiding over such a case.

However, the DA's office takes its argument a little too far when it claims that Judge Helm's comments express an "extrajudicial belief to the prejudice of the State and the victims of family violence.

Pardon me if I'm mistaken, but a defendant in a criminal proceeding is innocent unless proven guilty beyond a reasonable doubt. Unless the jury decides that a crime has been committed, there is no victim. Prior to trial, there is an allegation that a criminal act occurred. There is an alleged victim - the complaining witness. But there is no crime.

Furthermore, in any criminal case filed, there are two parties (unless multiple defendants are being charged and tried together) -- the prosecution and the person accused. The alleged victim has no standing to complain to the court. If the alleged victim wants to be a party to a lawsuit, the civil courthouse and the family law center and both less than a block from the criminal courthouse.

There is one more thing that's a bit troubling about the DA's motion to recuse. In Texas any motion filed by one party must be served on all other parties to the litigation in a timely manner. Every motion filed in a criminal, civil or family case has a certificate of service attached in which the moving party "certifies" that he or she has served a copy of the motion on all other parties or attorneys.

The DA's motion was filed on November 10, 2009. Judge Helm denied the requested relief on November 11, 2009. I was notified by phone on November 12, 2009 that the motion had been filed. I received a copy of the motion by fax on November 13, 2009. I received a copy of the motion via certified mail this morning (November 16, 2009) - the envelope was postmarked November 13, 2009.

Why does this matter? According to Joshua Reiss of the Harris County District Attorney's Office, a "true and correct copy" of the motion was served on my office by certified mail on November 10, 2009.

I wasn't even notified by the DA's office about their motion until after the judge heard the motion. That's not timely notification. That's a violation of my client's due process rights. He had the right to be notified of the filing of the motion and to be present at the time the motion was heard. Over at the civil courthouse an attorney is required to notify all other counsel of any hearing date at least three days in advance (some hearings require more notice). If the District Attorney is going to cite the Texas Rules of Civil Procedure in its motion to recuse a judge in a criminal case, the least Ms. Lykos' crew can do is to follow the rules on notice.

Facebook provides alibi for New York City teen

We've all heard stories about people who were caught in a lie or committing a crime as a result of something they posted online, an e-mail they sent, a cellphone call, a webcam photo or a toll tag log. But here's one in which a simple status update on Facebook exonerated a teenager on a robbery charge.

Rodney Bradford, a 19-year old living in New York City, was at his father's house in Harlem updating his Facebook status while, one minute later, a robbery was taking place in Brooklyn. Once Mr. Bradford realized the police were looking for him, he turned himself in, confident that he would be cleared.

He was eventually cleared, but it took two weeks. Not until the district attorney's office received records they subpoenaed from Facebook was Mr. Bradford released.

The lesson here is that the power of social media can cut both ways.

Ambiguity and hate crime legislation

Key Sun, Ph.D., a psychologist and associate law professor at Central Washington University, has his own interesting take on what's wrong with the Matthew Shepherd Hate Crimes Prevention Act. While he welcomes the bill's intentions, he fears that language of the bill makes prosecution under the act all but impossible.

He points out that the criminal law definition of a crime must (in most instances) define the mens rea, or criminal intent, of the actor. In Texas we categorize crimes by whether the accused acted intentionally, knowingly, recklessly or negligently. A crime in which the accused intended to cause the result is much more serious than a crime in which the accused acted with criminal negligence.

The Shepherd Act defines a hate crime as one in which "the defendant intentionally selects a victim... because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual orientation of any person."

The problem, according to Dr. Sun, is that this definition substitutes the alleged victim's status for the defendant's mens rea. "Because of..." is not the same as "acting intentionally or knowingly."

Criminal law is, and should only be concerned with, defining what is, and what is not, a crime. It is not the purview of the penal code to provide an explanation of why a crime occurred. That is the job of the criminologists, sociologists, psychologists, psychiatrists and commentators.

Farming out discipline

Recently, in his blog "Simple Justice," New York criminal defense attorney Scott H. Greenfield wrote about zero tolerance and "three strike" policies in public schools (see "Zero Tolerance for Three Strikes").

This made me think about how school discipline in this part of Texas has largely been turned over to the justice of the peace and municipal courts. It used to be if you got into a fight at school that you were sent to the principal's office and you either received a paddling or in-school suspension. Not that I'm a big fan of corporal punishment in schools, but there was a mechanism in place to handle discipline problems.

Somewhere along the way school districts in the Houston area decided that they didn't want to handle disciplinary problems anymore (I think it was about the same time we allowed standardized tests to determine the school curriculum). They farmed them out to the local courts.

Now, instead of a trip to the office to see the principal (who's usually out and about schmoozing with community leaders for donations and sponsorships), our unruly juveniles are issued a citation by the school's resident police officer (more and more local districts now have their own police departments, too, but that's another story for another day) requiring them to appear in court with a parent.

Ironically enough, the court appearance typically is scheduled on a weekday morning -- while school is in session. So not only is the child missing class (?), now he's facing a criminal charge. And isn't that the last thing we need -- more citizens under the watchful eye of the criminal (in)justice system?

While most of these cases are dismissed as the result of deferred disposition (or adjudication), the costs are severe. The child has missed class, the parent has missed work and someone has to pay the fines, court costs and attorney fees.

Is this really a good thing?

DA looking into traffic fatality prosecutions

The Harris County District Attorney's Office is in the middle of reviewing over 100 traffic fatality cases to determine if proper protocols were followed in bringing criminal charges against drivers deemed at fault.

The vehicular crimes section was started up under disgraced former District Attorney Chuck Rosenthal and was seen as former prosecutor Warren Diepraam's baby. Mr. Diepraam is now working for the Montgomery County District Attorney's Office

According to a statement released by the DA's office, prosecutors in the vehicular crimes section "deviated" from office policy in filing criminal charges in the cases that are under review.

"The Vehicular Crime Section had deviated from the long-standing practice of this office concerning what was necessary to raise a civil negligent traffic accident case to that of criminal negligence." -- Harris County DA's Office statement

In response to claims from law enforcement personnel that this case review would make Houston's roads more dangerous for motorists, the DA's office said, in a written statement, that streets would not be made less safe if the office followed the law when deciding when to bring criminal charges against a motorist.

The sad reality of living in a major metropolitan area is that with more cars on the roads, accidents are more likely to happen -- including fatality accidents. In Houston we like to drive fast, and that leads to accidents. But that's what they are, for the most part -- accidents. There is a difference between civil negligence and criminal negligence when it comes to accidents.

It's one thing to cause an accident because you're driving too fast, it's quite another to cause an accident because you're under the influence of drugs or alcohol or because you're involved in a high-speed race on the freeway.

Does it play both ways?

If the Harris County District Attorney thinks she's right in seeking a judge's recusal on 74 family violence cases because his "frivolous comments" indicate a "deep-seated bias," then is the defense bar entitled to seek the recusal of any judge who campaigned that he or she would be tough on crime?

Texas Senate holds hearings on state forensic commission

The Texas Senate Committee on Criminal Justice met this morning to question Williamson County District Attorney John Bradley who was recently appointed by Gov. Rick Perry to head the Texas Forensic Science Commission.

The meeting was broadcast live over the web and can be accessed here. One of the highlights was Houston's own state clown, er... senator, Dan Patrick, pooh-poohing the notion that the committee should look into whether or not junk science led to the execution of an innocent man.

(In order to view the file you must have the RealAudio player installed on your computer.)

And what do you think of the emperor's new clothes?

About once a week I get a phone call from someone with some firm that does search engine optimization -- whatever that is. Everyone of these folks tells me they can get my website to the top of Google or Yahoo! They all tell me they represent a handful of other attorneys in Houston that are already on top.

The fun comes when I ask them just how they plan on getting my website to the top of the search engine rankings. They can never answer the question. They give me some gobbledy-gook about optimizing this and leveraging that and that they will have me at the top within a week or two.

Then I ask them how their other clients (some of whom I always know) would feel about them promising to put someone else on top of the rankings. I mean, if you're telling me you can put my website on top, I'm sure you told the same thing to the attorneys you signed up. That doesn't sound too ethical to me.

As an attorney all you really have is your reputation -- harm that reputation and you harm your ability to stay in business. Do you really want firms that act in such an unethical manner representing you to all the world? Do you really want those firms to post content under your name?

You might hold off on going through the car wash

I was reading an offense report for a case down in South Texas the other day in which an ordinary traffic stop turned into an arrest for possession with intent to deliver a controlled substance. Among the "suspicious" behaviors that led the state trooper to believe the motorist was involved in some type of criminal activity was this gem:

"The vehicle appeared to be freshly cleaned and detailed."

So, if you're traveling down to the Valley, hold off on washing that car.

Death penalty found to have little deterrent effect

Over the weekend Houston Chronicle columnist Rick Casey wrote an interesting piece on whether or not the death penalty has any deterrent effect. Sociologist Thorsten Sellin found no deterrent effect when he studied the issue in 1967. One year later Gary Becker, a Nobel Prize-winning economist, determined the death penalty had a deterrent effect.

In 2005 two different studies reached bizarrely contradictory conclusions with one study suggesting that the death penalty might contribute to additional murders due to cultural brutalization while another study found that the death penalty saved about 150 lives a year.

Now the journal of the American Society of Criminology, Criminology, is about to release a study conducted by Duke sociologist Kenneth C. Land and Sam Houston State criminologist Raymond Teske, Jr. that concludes there is not enough data to make any definitive statement about the effect of the death penalty on national murder rates since the number of executions (outside the State of Texas) are too sporadic to draw any valid conclusions.

This new study focuses on the effect of executions in Texas since the death machine kicked into overdrive back in 1994. Their research seems to indicate that since 1994, the murder rate in Texas has declined between .5 and 2.5 homicides in the months after each execution. At the low end that would translate to 5 to 10 fewer murders a year.

Mr. Casey points out that the study found no correlation between the amount of publicity for each execution and any subsequent drop in the homicide rate. The study also shows that this "deterrent" effect is stronger on murders for which the death penalty is not an option.

As long as people drink and argue about girls and money there are going to be murders and no number of executions is going to stop it.

Forgive and forget

Deer Park native Andy Pettite was one of the heroes of the Yankees' world series winning team. Pettite, as many of y'all remember was implicated in the Mitchell Report as using illegal performance enhancing drugs. Pettite promptly owned up to cheating.

Alex Rodriguez was another of the Yankees' heroes in their championship run. Over the off-season A-Rod confessed that he used steroids during a three-year stint with the Texas Rangers. He was torn apart by the press for his admissions.

One must wonder if Roger Clemens had been honest and upfront when the accusations began flying whether he would have taken part in the Yankees' 27th World Series championship. While Pettite and Rodriguez are placed on pedestals by Yankee fans, Roger Clemens is scorned.

Clemens misread the public and played the wrong card when he was revealed as a steroid user. History is replete with American icons who messed up, 'fessed up and went back to being adored. The American public is quick to forgive and forget the transgressions of celebrities.

Had Roger the Dodger not been so arrogant and had he thought about his course of action for half-a-minute, he would have realized his aggressive denial was a mistake. I wonder how he felt watching his former teammates win the series.

My daughter and I

Last night my oldest daughter got sick. To be on the safe side, my wife and I decided not to send her to school today. That left us in a quandary because my wife teaches at the local community college on Tuesday and Thursday mornings and I had to be in court this morning.

So I made the executive decision to take my daughter to work with me. After we dropped off my youngest at school we headed out to the west side to the Justice of the Peace court on Clay Road for a traffic ticket case. This particular court is one of the busiest in the state -- and one of the slowest.

My daughter brought her Leapster and sat in a chair at the front of the courtroom that a very kind woman gave up for her (I didn't catch her name, but, if you're reading this, thank you) while I "worked" the case.

My client's case was dismissed a short time later because the officer forgot to appear (the ticket had been written 2 1/2 years before) and my daughter and I were on our way home after less than an hour.

Along the way she met some of my colleagues and got a little taste of what her daddy does for a living and I got to show off my daughter. I think I might start bringing her to court more often...

Why doesn't this surprise me?

According to the General Accounting Office the federal government is unlikely to recoup our full investment in either General Motors or Chrysler. In order to make a full recovery, both companies would have to attain market capitalizations (number of shares X price per share) neither had achieved before their bankruptcies.

Surely someone in the Treasury Department was aware of this at the time the bailouts were being rushed through Congress. The money the government cannot recoup now becomes a taxpayer subsidy of the shareholders of the born-again companies.

In order to recover taxpayer funds handed over to GM , the new company would need a market capitalization of $66.9 billion. The highest capitalization GM had achieved prior to the bailout was $57 billion back in 2000. Chrysler would have to achieve a market capitalization of $54.8 billion for taxpayers to get their money back. Prior to its acquisition by Daimler in 1998, Chrysler was capitalized at $37 billion.

There was a reason the two car makers couldn't round up enough private investment to survive -- investors knew GM and Chrysler were dogs and they weren't willing to put up their cash. Cue los federales.

We can't afford to put more money into health care for the poor, the old, the infirm and children, but we can afford to hand money over to investors. Some things never change.

Being first has its advantages

A special shout-out is warranted for David DiSalvo, the author of the very interesting blog Neuronarrative for the material used in this post...

Is there a psychological advantage to be first? According to Psychological Science, there is.

Using wine as the test medium, researchers asked hard-core wine drinkers (as in, people who are serious about their wines, not serious about drinking) and ordinary

wine drinkers which in a series of wines they preferred. Participants were given between two and five glasses of wine to taste. At the end of the tasting, drinkers were asked to identify their favorite glass. The participants weren't told that all of the wines they tasted were from the same bottle.

In the end, most participants favored the first wine they tasted (primacy) - regardless of their knowledge of wines. Interestingly enough, high-knowledge drinkers also seemed to prefer the last glass of wine they tasted (recency).

Researchers noted that high-knowledge drinkers would rate the most recent glass to the last one tasted -- putting an emphasis on the last glass.

In trial preparation, always go with your strongest argument first. It is through this argument that you are asking the jurors to filter the evidence they received during trial. Whatever you do, don't end with a weak argument. If you think the argument's weak -- leave it out. That last argument is the last thing the jurors will hear from you and you don't want it to compare unfavorably with what came before.

Zen and the art of lawnmower repair

This weekend I set out to mow the yard at our new house for the first time. Since I've lived in apartments and townhouses for the past 18+ years, I've never owned a mower. My parents graciously donated their old mower to our cause after we bought our house. They parted with it because they've used a lawn service for the past five or six years and the mower has just sat parked in the garage for that time.

On Saturday I tried to start it up but could never get the motor to turn over after yanking on the cord. There was gas in the tank and there was a spark plug in the cylinder and nothing was binding the blade. I gave up for the day and prepared for battle the next morning.

After a brisk 13-mile run on Sunday I stopped at the gas station and filled my bucket with gas. I then headed home and filled the tank of the mower. Still I couldn't get the blasted thing to turn over. I pulled the hose leading to the carburetor and made sure the gas was flowing through -- it was. Then I pulled the spark plug. It was oily so I cleaned it up. Then I aimed the brake cleaner spray into the cylinder and fired. I put the plug back in and popped on the wire. Still nothing. Next I changed the dirty air filter. Still it wouldn't turn over. Next up was the exhaust chamber. I pulled it, blew it out and rebolted it.

I pulled the cord and, finally, the engine turned over and the mower was up and running for the first time in over five years.

Now I know y'all must be asking what on earth does that story have to do with criminal defense practice. I'm glad you asked.

Whenever an engine isn't starting it's either because it's not getting fuel or it's not getting a spark. To find out which you have to test each part of the system until you've made your determination. And that's true whether it's a car's engine or the engine on a lawnmower.

In preparing to defend a case you have to run through the same checklists over and over again. On a DWI case you first look to determine whether the officer had a valid and legal reason to stop your client. Next you watch the video and look for errors the officer made on the field sobriety tests and for things your client did that demonstrate he wasn't intoxicated. If there's a breath test you go through a checklist to determine if there are grounds to suppress the test result. Same thing for a blood test.

To be successful you must be methodical during the preparation of your case. What a jury sees is the end result of countless hours of case preparation.

A dose of reality

A lot of times on this blog I talk about preparing and trying cases in the abstract. Thanks to Anne Reed (author of the terrific jury-ology blog, Deliberations), we have a blog that "keeps it real."

Steven Hirsch's blog Courthouse Confessions is at once entertaining and disturbing. Mr. Hirsch interviewed people who were released from custody and his blog documents their comments about what put them behind bars and the effect of incarceration.

It's a good reminder of how individuals are affected by our criminal justice system.