Thursday, December 31, 2009

An offer you just can't refuse

"The purpose of the complaint, then, is to enable the appropriate magistrate... to determine whether the 'probable cause' required to support a warrant exists. The [magistrate] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." -- Girodenello v. U.S., 357 US 480, 486 (1958)

"An affidavit for a search warrant is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed." -- Serrano v. State, 123 SW3d 59-63 (Tex.App. -- Austin 2003, no. pet.)

A magistrate is to view an affidavit in support of a search warrant in a neutral and detached manner in order to ensure that a person's rights under the United States Constitution, the Texas Constitution and the Texas Code of Criminal Procedure are protected.


New Years Eve No Refusal Info: 2 nurses, 2 prosecutors, 1 judge and 100s of officers working DWI enforcement. DWI blood warrants in effect.
One judge to review all of the affidavits in support of a warrant for the forcible blood draw of a Texas motorist? Does that sound like a neutral and detached magistrate? Who are we kidding? Everyone knows the game this weekend -- the cops will arrest motorists they suspect are driving while intoxicated and should that motorist exercise his 5th Amendment right not to incriminate himself by submitting to a breath or blood test, the officers will fill out a cookie-cutter affidavit that the judge will sign because that's what he's there to do.

Meanwhile, if you're out and about this holiday weekend -- be careful out there.

Wednesday, December 30, 2009

DA defends tweeting names of DWI arrestees

Last night, Warren Diepraam of the Montgomery County District Attorney's Office appeared on MSNBC to talk about his department's use of Twitter to embarrass motorists arrested for suspicion of driving while intoxicated.

When asked whether he thought the plan was problematic because those arrested for DWI were innocent until proven guilty, Mr. Diepraam commented that "We aren't the ones committing DWI, it's the suspects."

So much for the presumption of innocence.

DWI is big business

According to this article in the Illinois News-Tribune, the fines paid by motorists convicted of driving while intoxicated are used to purchase new breath test machines and patrol cars. In other words, if you are convicted of DWI in Illinois, you will be paying the state for the equipment they need to prosecute you.

In LaSalle County, for instance, the fine for a first-time DWI is $1,255, $500 of which goes to the state to purchase new breath test machines. Through November of this year, more than $300,000 in equipment fees have been collected.

So, just as the Texas Department of Public Safety has a vested interest in suspending motorists' drivers licenses and in obtaining DWI convictions (reinstatement fees and surcharges), so too do law enforcement agencies in Illinois.

What do you suppose is the tipping point on a marginal case? The presumption that the driver is innocent or the need to fill the state's coffers?

Tuesday, December 29, 2009

Convicted judge resigns from bench

Donald Jackson is now a former judge having submitted his resignation earlier today. For those of you wanting to know the fate of the complaining witness, Ms. Ariana Venegas, her DWI case is still pending almost a year after being filed.

She was granted a personal bond, however.

Taxi, dammit!

The Montgomery County (Texas) Sheriff's Office has introduced a new patrol car for DWI enforcement. No word on whether the meter will tick on the way to the station.

[Insert your own joke here.]

Monday, December 28, 2009

And so it begins...

Carrying through on his threat/promise to post the names of motorists charged with driving while intoxicated in Montgomery County, DA Brett Ligon's Twitter feed now lists the names of everyone charged with DWI over the weekend.

I find it curious that assistant prosecutor Warren Diepraam says the idea is to embarrass people charged with DWI but that he doesn't think tweeting the names of the accused will poison the jury pool. Well, Warren, if you intend to embarrass someone by tweeting their name then you must anticipate that enough people in Montgomery County will see the feed to have the desired effect. And, if that's the case, then you are attempting to poison the jury pool.

I seem to recall reading about something like this back in high school. That's right -- The Scarlet Letter.

Brett, when one of those cases is dismissed or the jury comes back with an acquittal, are you going to post the name of the prosecutor handling the case or the officer who wrongly arrested the driver? If not, I would encourage my Montgomery County brethren to provide me with the information and I will gladly post it for the world to see.

By the attention Mr. Ligon and his minions are placing on DWI arrests, you would think driving while intoxicated is the most heinous crime in Montgomery County. Let's see, are there any other crimes in which the accused (who is presumed innocent) is humiliated in public, subjected to a forcible blood draw, denied the right to remain silent and is not eligible for deferred adjudication?

See also:

Motorists using Twitter to avoid checkpoints

If local prosecutors want to use Twitter to try to humiliate motorists arrested on suspicion of driving while intoxicated, then why shouldn't motorists use Twitter to avoid sobriety checkpoints?

That's exactly what's been happening in the Fresno (CA) area. Once a law enforcement agency announces the time and location of a checkpoint, messages are posted on Twitter warning motorists in the area.

Law enforcement agencies and prosecutors are up in arms about the use of social media to warn motorists of checkpoints. But, as Fresno criminal defense attorney Brian Andritch points out, the purpose of publicizing the locations of checkpoints is to discourage people from getting behind the wheel after drinking. Whether checkpoints result in more arrests or not is immaterial. Should news of a checkpoint deter one motorist from driving after drinking too much, then the streets are safer.

If you want to increase your arrest numbers, just saturate areas in which there are a concentration of bars and restaurants and pull people over for not signaling lane changes after 2:00 a.m.

And, if you want to find out where those checkpoints are on your own -- well, there's an app for that, too.

Saturday, December 26, 2009

Bad ideas never die, they just drag on and on

Well, here we are a week after the Montgomery County District Attorney announced plans to post the names of those arrested on suspicion of DWI on Twitter and we have yet to see any names appear.

Despite criticism of the plan, Warren Diepraam, the idea's generator, doesn't see a problem. On the one hand he believes it will serve as a deterrent to motorists while, at the same time, he doesn't see any problems with tainting the jury pool.

Mr. Diepraam, if you don't know, also had the brilliant idea to charge a bus driver with vehicular manslaughter after a child was killed in an unfortunate accident while he was driving. Diepraam's comeuppance? A not guilty verdict.

Thursday, December 24, 2009

A happy Christmas story

Earlier this year I represented a gentleman down in Galveston who had been arrested on a drug case and placed on probation back in 2005. Unfortunately for him, the driver of the car he was in was the target of a federal investigation and he ended up doing federal time for the same crime for which he was on state probation.

Fast forward to 2009 and my client is out on parole for the federal charge and in custody on a motion to revoke his probation in the state case. The initial offer from the prosecutor was five years in prison on the state drug case. I told her that he had already done 30 months of federal time for the same offense and that he was facing a motion to revoke his parole. I even gave the prosecutor copies of documents from the federal case.

With the help of my client's federal parole officer we were able to work out a deal by which he would receive state credit for his federal time.

Yesterday I received a phone call from my client telling me that he was out of prison and home with his family for the holidays. He thanked me and wished me a Merry Christmas.

There are times when we have to deal with a lot of crap as criminal defense attorneys. There are times we question whether we are doing anybody any good or if we're even making a difference. But then there are moments like yesterday's that give us a renewed sense of optimism.

Wherever you are this holiday weekend, I wish you a Merry Christmas.

Wednesday, December 23, 2009

If you live in a glass house...

The sad saga of Judge Donald Jackson took an odd turn yesterday when an attorney representing Ariana Venegas fired off a letter to Judge Jackson's attorneys and the press demanding a formal apology for his actions - and the fact that his attorneys presented a vigorous defense in court.

The irony is that Ms. Venegas' attorney, Mr. Rob Todd, is a former city councilman in Houston who carried on an affair with another (former) councilman's wife while serving on city council.

Mr. Todd has threatened to file suit against the county, Judge Jackson and his attorneys should his client not receive the requested apology by 5:00 p.m. this afternoon.

Is this the future of litigation - threatening to file defamation suits against criminal defendants who put on a defense at trial? Or is Mr. Todd trying to drum up business now that tort reform has all but killed off personal injury and medical malpractice work in Harris County?

Nature v. Nurture

Free will or determinism?

According to a pair of recent studies, how one answers that question goes a long way in determining how you act. Kathleen Vohs and Jonathan Schooler had participants read a passage in Francis Crick's book The Astonishing Hypothesis that espoused a very deterministic view of our brains. Others read another passage from the book that discussed consciousness but never mentioned free will.

Afterward participants were asked to take a math quiz on a computer. During the quiz they were told there was a software malfunction and that they needed to hit the space bar after the question was presented so that the answer did not appear on screen. It turned out that the people who had read the first passage were far more likely not to hit the space bar - in other words, cheat - than the people who read the second passage.

Roy Baumeister conducted a study in which the participants were split into three groups. The first group was told to read statements that were deterministic in nature. The second group read statements that spoke of free will. The third group, or control group, was given neutral statements to read.

In the first experiment, participants were given scenarios and asked what they would do to help the person in trouble. The people who read the deterministic statements were found to be less likely to help out. In the second experiment, participants were told that a classmate's parents had been killed in a car accident and that the classmate would have to drop out of school without some kind of financial help. Again, the people who read the deterministic statements were less likely to help out. Finally, participants were given the opportunity to add hot sauce to a dish being served to someone who was averse to spicy foods. You guessed it, the people who read the deterministic statements were more likely to pour it on.

Knowing a potential juror's attitude toward the debate between determinism and free will could be vital to trying your case. Those who tend toward the determinism, or nature, side of the argument may very well believe that your client is somehow genetically disposed to a life of crime which wouldn't bode well back in the jury deliberation room.

See also:

"Free Will and Ethics" The Frontal Cortex, 12/17/09

Tuesday, December 22, 2009

DWT is more dangerous than DWI

A new study found that motorists who text while driving are six times more likely to be involved in a crash that those who just drive. University of Utah psychologists placed 20 men and 20 women between the ages of 19-23 in a driving simulator to test the effects of texting while driving. The tests indicated that motorists who texted while driving had reactions times 30% slower than those who just drove and that motorists who talked on their cell phone reacted 9% slower than non-talking drivers. Interestingly enough, reading text messages slowed braking times more than sending text messages.

An earlier study conducted in 2006 found that motorists who drove while talking on cell phones - either handheld or hands-free - were more likely to be involved in a rear-end collision than motorists who had an alcohol concentration of .08. Researchers believe that motorists talking on cell phones miss up to 50% of the visual cues that a non-talking driver sees.

None of this is to suggest that one get hosed and get behind the wheel of a car. The larger point seems to be that with every new device we put in a car we create more distraction for drivers. It is that distraction, whether caused by electronic devices or alcohol, that makes driving more hazardous.

An intimidated witness is the same as no witness

Federal Judge Cormac J. Carney of the the Central District of California dismissed the government's stock-option fraud case against William J. Ruehle due to a pattern of witness intimidation by government prosecutors. The judge found that prosecutors threatened the three witnesses for Mr. Ruehle with criminal prosecution if they did not cooperate with the government.

The intimidation included forcing one witness to plead guilty where no criminal act took place, accusing another of being an unindicted co-conspirator and leaving a third to dangle in the wind for two years under threat of prosecution.

The judge ruled that the government's course of conduct in the matter made a mockery out of Mr. Ruehle's Sixth Amendment right to compulsory process. Said Judge Carney: "For this constitutional right to have any true meaning, the government must not do anything to intimidate or improperly influence witnesses."

In his ruling, Judge Carney quoted the US Supreme Court's decision in Berger v. U.S. and it bears repeating here:

“The United States Attorney is the representative, not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and a very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocent suffer.

“He may prosecute with earnestness and vigor. Indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” – Berger v. U.S., 295 US 78 (1935)

Special thanks goes out to Ellen Podgor and her White Collar Crime blog.

Monday, December 21, 2009

Harris County judge sentenced to 30 days in jail

In a sad end to a judicial career, Judge Donald Jackson, who was convicted of official oppression last Friday, was sentenced to 2 years probation, with 30 days in the county jail as a condition, fined $4,000 and ordered to perform 200 hours of community service for trying to solicit a romantic relationship from a DWI client in exchange for appointing her a new attorney.
“We are all tarnished by your stupidity." Judge Mark Kent Ellis
Judge Ellis also ruled that Jackson must leave the bench pending appeal.

Supremes to revisit confrontation question

The US Supreme Court may be rethinking its ruling in the Melendez-Diaz case that prohibited prosecutors from introducing lab reports into evidence without presenting live testimony to authenticate the findings. The Court held that lab reports were evidential in nature and that a criminal defendant's right to confrontation demanded that a live witness present the findings.

Local prosecutors and state attorneys general have been wringing their hands ever since over the costs of complying with the new rule.

The Court will hear two Virginia drug trafficking cases in which prosecutors used Virginia's new "hybrid" procedure: a lab report is introduced into evidence and the defendant is given the opportunity to cross-examine the analyst.

Virginia's plan may look good -- but once the report is entered into evidence, the damage is done. The fight is over the admissibility of the report and Virginia's plan just assumes that the report is admissible and that any questions raised during cross examination go to the weight, not the admissibility of the report.

I look at it this way, the analysts who do the testing and prepare the reports are hired by the state to assist the state in prosecuting people accused of criminal acts. Hold the state's feet to the fire and make them do their jobs.

Saturday, December 19, 2009

To the top of the page we go

"Sir, we can put you on the top of Page 1 for Google, Yahoo!, Bing and any other search engine out there."

"I'm game. What do I need to do?"

"The first thing I want you to do is start up a Twitter page. We'll come up with a catchy screen name and start posting updates."

"Twitter? Are you sure?"

"Positive. Hey, I'm a social media/SEO/networking/coaching expert. You can check out my Twitter profile and that's what it'll tell you."

"You're the expert around here. I'm listening."

"What kind of cases do you handle?"

"All kinds of criminal cases, though we like to focus on DWI's."

"You could update your Twitter page with news about your DWI practice."

"That's a great idea. We just brought in a new guy about a year ago from down South who has a lot of experience in DWI cases. His name's Warren. Perhaps you've heard of him?"

"No, can't say I have."

"What kind of catchy screen name would you propose?"

"Something's that SEO-friendly and key word rich. How about @MontgomeryTXDAO? A lot of DWI updates with that handle and that should drive your website right to the top of the rankings."

"What kind of updates should I do?"

"Oh, hell, why not just list the names of every sucker y'all arrest for drunk driving?"

"Man, that's a great idea. I don't know why we didn't think of that. What else should we do to get to the top of the page?"

"Hmmm. I know, leave comments on lots and lots of blogs."

"What kind of comments should I leave? You know I don't have a lot of time to read blogs. I've got to keep a tight rein on my associates. I can't be letting any of that nasty, exculpatory stuff to get into the hands of those defense attorneys."

"Don't worry about reading blogs. Just put something like 'Really enjoyed reading your blog. Blogs can be so informative.' And be sure to link it back to your website. Google loves that kind of thing."

"I can't tell you how happy I am that you called today. I'm certain we can get to the top of Page 1 with your strategies."

"Hey, I guarantee you that by the time we're done, whenever someone types in the words 'Montgomery County District Attorney,' your website will be the first one they see."

Friday, December 18, 2009

Drink. Drive. Tweet.

The Montgomery County District Attorney's Office has found a new way to humiliate those unfortunate motorists who have been arrested on suspicion of driving while intoxicated -- they are posting their names on Twitter.

Assistant District Attorney Warren Diepraam said that the "public humiliation" should act as a "deterrent" to others who might get behind the wheel after drinking.

Nevermind that being arrested is a very different thing than being convicted and that a person who's been arrested is still innocent unless proven guilty. And of course the police never make wrongful arrests. And of all people, Montgomery County DA Brett Ligon should know better -- after all, he used to be a criminal defense attorney.

My question is should the DA dismiss a case against a motorist or should a motorist be acquitted by a jury of his peers, will Mr. Diepraam offer a public apology on Twitter as well? Even more important, will a person filing for an expunction in Montgomery County need to serve Twitter and other social networking sites, or will the judge sign an order requiring the DA's Office to notify those sites to remove all reference to the arrest of that individual?

The people's court?

Sign on the door for the courtroom for the 212th Judicial District Court in Galveston, Texas. Let's just remember that "the people" also includes those persons who have been charged with a criminal offense and who are innocent unless proven guilty.

Thursday, December 17, 2009

City of Houston to screen suspects for immigration histories

Starting today, jailers in Houston will check fingerprints of everyone booked into one of the city's jails to see if they have an immigration history. The system, called Secure Communities, is designed to identify people who have had past run-ins with Immigration and Customs Enforcement.

Mayor Bill White (who is expected to challenge for the governor's mansion in 2010), originally signed off on the city participating in ICE's 287(g) program in which city jailers would become de facto immigration officers and would screen for those suspected of being in the country illegally. Critics of 287(g) say that the program is nothing more than legalized racial profiling.

Now I believe that if you're going to another country you need to keep your nose clean and follow the law -- and if these programs were directed at individuals who were found guilty of criminal offenses, I would have no problem with their being deported from the country. My problem stems from the fact that when an individual is arrested and taken to jail, that individual is still innocent unless proven guilty.

The Bill of Rights doesn't use the word "citizen" when spelling out the measures to protect us from the overreaching arm of the state. You can check it out.

Wednesday, December 16, 2009

City to spend $3 million to study police fingerprint unit

Updating a post from earlier this month about problems with the Houston Police Department's fingerprint unit, Houston City Council has approved $3 million (out of a request for $4 million) to pay consultants to review some 5,000 violent crime cases that have already been reviewed once. After that there are thousands of other cases involving violent and property crimes to be reviewed. Outside consultants have been running the fingerprint unit since the results of the audit conducted this fall were released.

While HPD was thrilled to be showered with taxpayer dollars, one city councilman was a bit more concerned about the situation.

Said Peter Brown: "If something is going wrong here, what else is going wrong in the Houston Police Department?"

I concur with Mr. Brown. Maybe now is the time to explore the creation of a regional forensic lab that is not under the control of law enforcement.

Tuesday, December 15, 2009

Court upholds NYPD intoxilyzer policy

Last week the U.S. Court of Appeals for the 2nd Circuit held that the New York Police Department's policy of requiring that any officer who killed or injured a person as the result of a shooting take a breath alcohol test was not unconstitutional.

In the wake of the Sean Bell shooting in November 2006, the NYPD instituted a new policy under which officers involved in shootings were required to submit to a portable breath test device and, should the device measure an alcohol concentration of .08 or higher, an intoxilyzer test.

In Lynch v. City of New York, the Patrolmen's Benevolent Association, filed suit challenging the constitutionality of the program, arguing that forcing an officer to submit to a breath test violated the officer's right to privacy under the 4th Amendment's prohibition against unreasonable search and seizure. The plaintiffs argued that the primary purpose of the policy was crime control and that the officers' privacy rights outweighed the department's interest in fighting crime.

The trial court denied the plaintiffs' request for a temporary restraining order and the union appealed. The appellate court ruled that, although crime control was one purpose of the policy that it was not the primary purpose and that the court was correct in weighing the interests of the officers against the interests of the department. The court cited the department's interest in protecting the image of the NYPD as well the department's need to discourage officers from handling firearms after consuming alcohol.

The states, in enacting their informed consent laws, rely on the crutch that the purpose of coercing a driver into providing a sample serves a deterrent purpose to the driving public. If that were the purpose of the laws, then the states should make it clear to motorists that by driving on public roads, they are agreeing to blow into the state's breath test machine. If you were told this at the time you applied for your driver's license, please raise your hand.

The real purpose of the informed consent laws is to gather evidence to use in a drunk driving prosecution. Why else would statutes allow a driver's refusal to be introduced into evidence at trial as evidence of guilt? In reality the entire purpose of informed consent laws is crime control - and that being the case, the constitutionality of such a scheme should not be subject to a balancing test of the interests involved. The real questions should be whether such a law violates a person's right to avoid self-incrimination and whether they constitute an unreasonable search and seizure.

Joe McCarthy didn't care for the right to remain silent, either.

Will video kill our access to the courts?

The "open courts provision" of the Texas Constitution guarantees people in Texas access to the courts.
All courts shall be open, and every person for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law. - Texas Constitution, Art. 1 Sec. 13
In most courthouses in Texas, those who are accused of committing criminal acts are still brought before a judge in open court to enter their pleas. There is one exception, however.

If you are charged with a misdemeanor offense in Galveston County and you cannot post bond, your first court appearance will be on the misdemeanor jail docket at the Galveston County Jail. Every afternoon a fresh group of inmates are brought into a large room where they wait for their court-appointed attorneys to talk to them about their cases. In most instances a plea is negotiated -- but this is where the similarities end.

For the inmates on the misdemeanor jail docket are brought before a judge in a courtroom. The judge takes the plea from his chambers while the inmates stand before a video monitor in the county jail. A two-way camera, microphones and speakers connect everyone. Keep in mind, we're not talking about arraigning folks who were just arrested before a magistrate on a video monitor (which is not at all uncommon). We are talking about the actual disposition of a criminal case.

Is it really that big a deal, though? It is far more convenient to be able to sit down and talk to a client at the jail rather than squeezing through the benches in the courthouse. But is Galveston County violating their right to have their plea heard in open court? Do the inmates care?

I don't know. I understand why it's done like that on the island and there are some advantages - for both inmates and attorneys - in doing it this way. But I wonder if the practice is slowly eroding our access to the courthouse. Is the camel sticking his nose under the tent?

Monday, December 14, 2009

The LackBerry Bold

Last week my Dash crashed on me. That sucked. Instead of having access to my contacts and my calendar at my fingertips outside the office, all I had was a phone. Couldn't access the internet and couldn't "sync" it up with Outlook.

A former client of mine is a phone dealer. I told him I wanted the new Dash 3G. He told me I should get the new BlackBerry Bold 9700. He told me it was the most advanced phone out there and that I'd love it. So I told him to get me one.

I picked it up from him on Saturday morning and was excited to play with it. That's when the nightmare began. It was so "technologically advanced" that it was impossible to set the clock without calling tech support. Due to household chores and a housewarming party it was nearly impossible for me to do much more than charge the battery on the phone over the weekend.

I did try to set up my e-mail but, no matter what I did, the icon for managing e-mail would never appear on the screen and I couldn't find any other way to set up my e-mail accounts otherwise. On Monday morning I called tech support about setting up my e-mail and was told I would have to upgrade my internet service to BlackBerry internet in order to receive e-mails on the phone. Then she told me it would take between 2 and 48 hours to set it up. That's a worse time frame than the damn phone company.

That was it. I decided to get a Dash instead, but the nearest dealer was out. So I called a store by the house and drove out in the pouring rain to get the new Dash. The customer service rep told me she could get me hooked up with the upgraded internet service in less than 2 hours -- which still made the phone useless since I had to head down to Galveston in a little over 90 minutes.

After handling the jail docket on the island I was able to set up my e-mail on the phone. Now all I had to do was "sync" up Outlook so I could get my contacts, my calendar and my e-mail. Unfortunately the phone would only download my contacts, calendar and tasks from Outlook. It wouldn't "sync" up my Outlook e-mail inbox.

I called tech support and was transferred to RIM (the manufacturers of the software that runs the BlackBerry). Then I found out the terrible news -- there was no way to "sync" up my Outlook e-mail inbox to the BlackBerry. This meant that once an e-mail from my internet server was forwarded to Outlook, I could no longer access it on the phone. Absolutely unacceptable.

Now, after spending hours trying to set this phone up how I needed it set up for my work situation, I have no choice but to get rid of this expensive paperweight and head back to the store to pick up the phone I wanted in the first place.

And before anyone tells me how wonderful the iPhone is -- I don't want one. I have never wanted one. I don't want a touch screen phone. Besides, you can't get one for T-Mobile (and I'm not changing carriers).

Excuse me while I beat my head up against the wall.

Busted for DUI in a horse-drawn buggy

Elmer Stoltzfoos Fisher, a 22-year old Amish man in Pennsylvania was arrested for driving under the influence after an off-duty police officer came up on a horse-drawn buggy moving very slowly down the middle of the road in East Lampeter Township.

That's right, a horse-drawn buggy.

it turned out that Mr. Fisher had fallen asleep behind the reins. A subsequent breath test revealed an alleged alcohol concentration of .018.

Section 3802 of the Pennsylvania Crimes Code makes it a criminal offense to operate a vehicle if you are intoxicated. The statute does not specify whether that vehicle must be motorized.
Section 3802.  Driving under influence of alcohol or controlled substance.
 (a) General impairment.
 (1)  An individual may not drive, operate or be in actual physical control of 
 the movement of a vehicle after imbibing a sufficient amount of alcohol such 
 that the individual is rendered incapable of safely driving, operating or being in 
 actual physical control of the movement of the vehicle.
 (2)  An individual may not drive, operate or be in actual physical control of 
 the movement of a vehicle after imbibing a sufficient amount of alcohol such 
 that the alcohol concentration in the individual's blood or breath is at least .08% 
 but less than .10% within two hours after the individual has driven, operated or 
 been in actual physical control of the movement of the vehicle.
What's also interesting about Pennsylvania's DUI statute is that you don't have to operating the vehicle in a public place to be charged with driving under the influence. I also find it interesting that Pennsylvania is one of the states that have legislated away retrograde extrapolation. There's no need for the state's expert to testify as to what the alcohol concentration might have been at the time of driving so long as the breath or blood test was conducted no more than two hours after the stop.

Of course I guess Mr. Fisher might argue that because he was asleep he was not in actual physical control of the vehicle at the time of the stop and therefore the state cannot prove the breath test was conducted within two hours of his being in control of the buggy.

But then Pennsylvania's got that covered, too. According to the Commonwealth's criminal code, if the state can't prove the test was taken within two hours of operating, the test result is admissible anyway.

Exception to two-hour rule —...where alcohol or controlled substance concentration in an individual’s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

  • (1) where the Commonwealth shows good cause explaining why the chemical test could not be performed within two hours; and
  • (2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.
In other words, it is what we say it is.

Friday, December 11, 2009

Department of (In)justice says no to pardon for Jack Johnson

Back in August I wrote about Congressional efforts to pardon former Heavyweight Champion Jack Johnson of Galveston.

Yesterday the pardon attorney for the Department of Justice, Ronald Rodgers, informed Rep. Peter King (R-NY) that it was not the department's policy to grant posthumous pardon requests. According to Mr. Rodgers, the department would prefer to grant pardons to folks "who can truly benefit" from them.

President George W. Bush issued a posthumous pardon to Charlie Winters who was convicted of violating the Neutrality Act by selling decommissioned B-17 bombers to Israel in 1948.

A flaw in logic

Just one more thought on Harris County District Attorney Pat Lykos' apparent backtracking on the office's new drug policy...

If the reason for the new policy is that any amount less than .01 grams does not provide enough of a sample for retesting, what is there to revisit in six months? If the policy were implemented because of jail overcrowding or the size of the courts' dockets, then revisiting the policy after a time would seem to be a prudent idea. But, if the reason behind a policy is based on accepted forensic scientific protocols, those won't change in six months. If .01 grams is an insufficient sample for retesting on January 1, 2010, it will be an insufficient sample for retesting on July 1, 2010.

Thursday, December 10, 2009

Ethics cuts both ways

So it turns out that Cincinnati head football coach Brian Kelly interviewed for the vacant Notre Dame coaching job prior to his team's showdown with Pitt for the Big East Conference championship, a game the Bearcats won 45-44 on a last minute touchdown.

It makes you wonder where Mr. Kelly's head was last Saturday afternoon since by all accounts his departure to South Bend will be announced this week. Is it possible for a coach to be on his game at the same time he's angling for another coaching position? Where were Mr. Kelly's priorities? Talk about your conflict of interests.

I'm certain that he drills the ideals of loyalty and teamwork to his players throughout the season but, while the players pushed for a shot at the national title, their coach was casting them aside and looking for a bigger job. Do as I say, not as I do -- that must be his motto.

Of course the Golden Domers are just as complicit in this sordid little tale as Mr. Kelly. Notre Dame officials knew the importance of last Saturday's game for the Bearcats yet they went out to talk to Kelly anyway. What kind of message does that send out to football fans?

If you're a Notre Dame fan, just don't be surprised if Brian Kelly up and leaves you in the lurch when the opportunity arrives. If he'd abandon his team at a crucial junction, what's to prevent him from abandoning his new team.

Beware when anyone's willing to sell out their word to the highest bidder.

DA backtracks on new drug policy

One day after announcing a policy change in the prosecution of some drug offenses, Harris County District Attorney Pat Lykos seems to be backtracking from her original position. Facing stern opposition from local law enforcement, Ms. Lykos said her office would re-evaluate the new policy after six months.

Critics of the new policy claim that it will result in an increase in burglaries and robberies from addicts looking to buy more dope. Ray Hunt, vice-president of the Houston Police Officer's Union said that officers would look the other way because they don't want to spend the time to issue a Class C misdemeanor citation.

Mr. Hunt apparently is under the impression that a stint in jail will cure a drug addict and that he or she will return to the outside as a productive member of society.

Using Mr. Hunt's logic that locking up minor drug offenders because they might commit a theft or burglary, maybe we should lock up everyone who consumes alcohol because they might get behind the wheel drunk. Maybe we should lock up everyone who owns a gun because they might one day shoot someone. Maybe we should lock up everyone who is married or dating someone because they might commit an assault against a family member.

Maybe Mr. Hunt's opinion would change were he to consider the overtime bonanza that could result from patrol officers having to appear in municipal court -- just ask the traffic cops.

Missouri seeks to criminalize breath test refusals

Missouri Governor Jay Nixon has decided that the Fourth and Fifth Amendments should not apply to drivers accused of DWI. Gov. Nixon has proposed making it a criminal offense for a motorist to refuse a blood alcohol test. Currently under Missouri law a motorist can have his driver's license suspended for up to a year for refusing a test.

Nevermind that the number of alcohol-related crashes in Missouri fell from 7,780 in 2007 to 7,373 in 2008. Forget that the number of injuries in alcohol-related crashes from from 4,889 in 2007 to 4,511 in 2008. While the number of fatalities in those accidents rose from 243 in 2007 to 262 in 2008, an alcohol-related crash is any crash in which any person involved (drivers or passengers) consumed alcohol.

Criminalizing blood test refusals would make our protection against self-incrimination meaningless once we get behind the wheel of a car. It's also pointless considering there are any number of judges across this country who will blindly sign a blood warrant presented by a police officer - regardless of whether or not the officer can demonstrate probable cause existed for the arrest.

Suspected drunk drivers are treated differently than just about any other person accused of a crime because they are an easy target for politicians whoring themselves out for votes. By allowing lawmakers to make a joke of the Constitution in DWI cases, we are slowly but surely allowing them to narrow our rights in general.

Wednesday, December 9, 2009

Harris County to institute "catch and release" policy

The Harris County District Attorney's Office announced a change in its policy regarding arrests for trace amounts of drugs, particularly crack pipes with cocaine residue.

Beginning on January 1, 2010, if the amount of drug residue is less than .01 grams, a person will be cited for possession of drug paraphenalia, a Class C misdemeanor punishable by fine only. By law a person charged with possession of a controlled substance has the right to examine and retest the substance. The District Attorney's Office has determined that an amount of less than .01 grams is insufficient to allow for retesting of the substance.

According to the new policy, if the person is carrying drug paraphenalia and the officer cannot determine the weight of the drug residue, the officer is to issue a citation and release the alleged offender. If the drug residue is found in some container other than drug paraphenalia, the officer is to issue a citation, release the alleged offender and submit the container for testing. If the amount in question is more than .01 grams, the officer may submit the case to the DA's office and request an arrest warrant.

Let's go and round up a posse

There's a new tool out there to help you protect your children against nefarious types in your neighborhood and its called FelonSpy.

According to the website, FelonSpy is:

a small group of dedicated community activists who are committed to making sure that you do not fall victim to any crime, not rape, murder, robbery or even petty theft. We help because we can and we care because we have all been victims of crimes ourselves, and by all that is holy by the grace of God, we’ll do everything we can to keep you safe.

We are former law enforcement officers, information technologists land developers and community leaders, all of whom have given up our posts in pursuit of this noble, sometimes misunderstood quest to label the underbelly of society by their actions.

This merry band of do-gooders has set about to track down everyone in the US with a criminal record.

We track virtually everyone with a criminal record including sex offenders, ex-cons (felony and misdemeanor), and those guilty of some of the more serious traffic infractions. You have the right to know who your neighbors are. We hope to track persons accused of crimes but acquitted in the future, but at this time we do not have sufficient funding to expand our database that far.

Ask too many questions and who knows, we might be tracking you next.

Apparently someone over at FelonSpy doesn't understand that a person is innocent unless proven guilty. Just because a person has been arrested doesn't mean they did anything wrong and this cavalier attitude that being accused is tantamount to being convicted does a disservice to everyone.

And what's up with that little threat at the end? Does it mean that anyone who questions FelonSpy's motives is a criminal?

And then there's this gem about the "obstacles" they face in updating the information on the website:

We hope to continue rolling out coverage city by city, state by state and nation by nation, but there are many places where we run in to obstacles. Some of these obstacles are “legal challenges” from the likes of attorneys, courthouses, law enforcement, those A-Holes at the ACLU and “the law” in general.

The website claims it doesn't encourage vigilantism, but how about this blurb from the main page?

You deserve to know where felons are and should have access to free public criminal background check systems. Remember, safety starts with good information, even if it ends with a loaded .44 caliber pistol. While can’t help you get a gun, we can certainly help you figure out which direction to point it in.

But then they issue the following disclaimer on another page:

Our data is not guaranteed, nor “official”, nor legally binding. Still, I think you know it’s pretty good, because it is. You can see how much work we dedicated to making it right, so we’re pretty solid, but not “guaranteed”.

You should never use this site as cause to be a vigilante, even if you have been a victim and have a good 30-oz bat or unregistered firearm handy. Everyone loves a hero, there is no denying that, but if you rely on government records to put your hit-list together, it’s going to come back around to bite you in the butt every time, no thanks to “the man”. Use the database collection from this site instead as a general guideline and nothing more, and that’s our “disclaimer” (wink, wink).

Who runs FelonSpy? According to Whois Source, the registrant for that domain is something called USCCFF out of Atlanta, Georgia.

4519 Country Trails Rd.
Atlanta, GA 30309
(404) 812 3345


Administrative Contact:
Petterson, Frank
4519 Country Trails Rd.
Atlanta, GA 30309
(404) 812 3345

Technical Contact:
Petterson, Frank
4519 Country Trails Rd.
Atlanta, GA 30309
(404) 812 3345

Interestingly enough, our intrepid Mr. Petterson is also the registrant for the pit bull fighting site, (I won't provide a link to the site due to its subject matter).

Monday, December 7, 2009

Eight hours of Zen in the woods

A view of Lake Raven (Huntsville, Texas) before dawn on 12/5/09.

On Saturday I spent an amazing eight hours running 33 miles (should have been 31 miles, more on that later) through Huntsville State Park (an hour or so north of Houston).

Up until last year Sunmart sponsored the Texas Trail Endurance Runs (50 miles/50K) but this year Sunmart ran into a little legal problem and dropped their sponsorship of the race. There was concern that the popular trail run was finished but thanks to Roger Soler, the trail run lives on.

By complete coincidence I met a fellow Houston attorney as I braved the freezing cold and climbed out of my car. He was running the race with a running buddy of his and asked if I'd like to run with them. Why not?

Everything went well on the first 7 mile loop. We got back to the start/finish line and ditched some of our gear and headed out on the first of two 12-mile loops through the trails. What we didn't know at the time was that the course had been changed - we would be running on the same trail the 50-miler was run on. The run was great, the weather was fantastic and the company couldn't be beat.

We crossed the start/finish line in about 4 hours and 20 minutes as we headed back out for our final loop. After 19 miles we were tired and our legs were getting heavy. I've always found that one of the hardest things to do was convince myself to go back out there for the final lap. But off we went.

Everything went swimmingly until we got to the aid station by the dam. Even though we had already been through there earlier the three of us managed to take a turn to the left when we should've turned to the right. We all had a weird feeling as we headed out to the back of the park. Something didn't feel right but we weren't sure what happened. Finally we stopped and assessed the situation and realized we were off course. We had no idea how we got off course or how far we had gone off course. It was time to backtrack.

And so back we went until we found the bridge and the trail markers. We still don't know how we managed to miss them -- but we were back on course. The upside of it was we covered an extra two miles. On we went and about 90 minutes later we crossed the finish line three abreast.

I've written about it before, but the beauty of trail running is living in the moment. You can't take your mind off the task at hand because of the roots, holes and other hazards on the course. My run partners and I spent eight hours on Saturday living in the present -- and there is no better way to live.

While you can't forget your missteps in prior trials, you can't let them ruin your trial prep. Every trial is its own beast and instead of dwelling on past mistakes, learn from them.

As our run shows, it's easy to get off track in the trails and in trial preparation. Sometimes you just need to step back and look at the overall picture to determine whether you're still on course. If you're not, stop and backtrack. If you look carefully enough you'll find the correct path.

Friday, December 4, 2009

Paybacks can be hell

University of Houston law professor David Dow is now wearing the shoe off the other foot. Mr. Dow and the Texas Defender Service (TDS) were in the middle of the controversy swirling around Judge Killer, er... Keller, and her closing of the Court of Criminal Appeals clerk's office on the night of Michael Richard's execution.

Under the Court's Miscellaneous Rule No. 08-101, adopted in June 2008, any motions filed relating to a death sentence are considered late if filed less than 48 hours before 6pm on the date of the execution. If a pleading is filed within 48 hours, a sworn statement of why the pleading is being filed late must be attached.

TDS filed the writ on the afternoon of November 17, 2009. In Mr. Dow's sworn statement he said he did not receive the file in question until November 6, 2009 (twelve days before the scheduled execution) and that the grounds for the writ of habeas corpus changed on November 15, 2009 due to a decision by the U.S. Supreme Court. He also noted the time constraints of dealing with multiple cases near the deadline.

Mr. Dow's writ was denied and his client was executed on November 18, 2009.

Judge Keller did not participate in the decision to deny Mr. Dow's writ and she did not participate in the show cause hearing.

I understand the need for courts to have adequate time to review pleadings before a deadline, but I have to question the need for Miscellaneous Rule No. 08-101. We're talking about a human life. With all of the controversy regarding the execution of Cameron Willingham, I should think the State of Texas would be cautious before ordering the murder of anyone else.

Thursday, December 3, 2009

Waiting on a cab

If you drink, don't drive. That's the message that's pounded into our heads. That's why bars give out free non-alcoholic drinks to designated drivers and why some of them provide cab rides for patrons on holiday weekends.

A father and daughter in Montgomery County (Texas) were ready to let off some steam after Thanksgiving and decided to go to a sports bar near The Woodlands. Knowing that they would be downing a few, they took a cab to the bar and planned to take a cab back home.

So far, so good. Responsibility. Not so fast, though.

We are talking about Montgomery County, you know.

When it was time to leave the bar, dad and daughter called a cab and waited outside in the parking lot for it to arrive. While waiting for their cab at 1am, a deputy asked them what they were doing. They told the deputy they were waiting for a cab. The deputy told them if it didn't get there in 10 minutes he would arrest them for public intoxication.

Now maybe the deputy doesn't understand that the Houston-area was made for cars and driving. There are no cabs driving around waiting on fares. Unless you are at the airport or some of the fancier hotels around town, you have to call for a cab and wait for the nearest available one to arrive.

So, there in the parking lot, waiting on their cab, father and daughter were arrested, handcuffed and hauled off to the county jail. The best the district attorney could come up with was to suggest that the pair should have waited inside the bar.


Wednesday, December 2, 2009

An inside job?

State law enforcement officials are still searching for convicted child molester Arcade Comeaux, Jr., who escaped from custody while being transported from Huntsville to Beaumont. Apparently, Mr. Comeaux smuggled a gun into the van and took control of it between Huntsville and Houston.

State Senator John Whitmire (D.-Hou.) is up in arms because of the recent scandal involving the smuggling of cell phones onto Death Row.

Here's a little tip for y'all... it's (probably) an inside job. Who else would have the ability to bring guns, cell phones, drugs and other weapons into a heavily-guarded building? Visitors are watched like hawks from the time they enter the grounds until the time they leave, but who's watching the watchers?

Tuesday, December 1, 2009

Are crime lab examiners all thumbs?

The Houston Police Department is now reviewing all major cases from the past six years (murders, rapes, robberies, etc.) as the result of an external audit of the HPD Crime Lab. According to the audit, outside consultants determined that 53% of the time when crime lab fingerprint examiners said that recovered prints were insufficient for analysis, they were wrong. The consultants also found that in 9% of the cases in which crime lab fingerprint examiners said there were no prints, there were.

I would like to know the criteria by which the outside consultants and crime lab fingerprint examiners determined whether a print was sufficient for analysis. I would like to know how many points of comparison the auditors rely upon versus the crime lab examiners. Even better - on what scientific principal do either the auditors or the examiners rely on when claiming that fingerprints are "unique" or that what they do is even science.

If the issue here is that crime lab examiners were too "conservative" in determining whether or not there was enough of a fingerprint to examine, I don't have a problem with that. I fear that this audit may serve only to put pressure on examiners to "find" matches when analyzing fingerprint evidence.

See also: "Houston fingerprint lab problems prompt case reviews" (Houston Chronicle, 12/1/09)

He's making a list and checking it twice

Some local charities in the Houston area have begun checking the immigration status of families before handing out any toys. Included in the organizations asking for proof of citizenship are the Salvation Army and Outreach, Inc., which distributes toys collected by the Houston Fire Department.

It's one thing to go after adults who entered the country without permission -- but it's an entirely different thing to go after their kids.

Mining the internet in jury selection

With the widespread use of social media, it's nearly impossible for us not to leave some sort of "paper trail" in cyberspace. That is particularly true of potential jurors. With sites such as Facebook, LinkedIn and Twitter (among others), there is a wealth of information to be mined on those who will sit in judgment of your client.

Unfortunately, in the names of judicial economy and efficiency, courts have reduced the amount of time lawyers have to interact with potential jurors to find out about any deep-seated biases or beliefs that could be harmful to a client.

In Harris County the typical voir dire in a misdemeanor case is 20 minutes per side - then it's time for motions to strike for cause and peremptory strikes. Even though the typical jury panel is 18-24 people, that is far from enough time for attorneys to make well-informed decisions on who they don't want to sit on the panel. It certainly isn't enough time for an attorney to run each name on the jury roster through Google to see what comes up.

What's the hurry, your Honor? This case may be the only time the accused ever finds himself involved in the criminal justice system and a conviction will stick with him for life. What's the harm in allowing additional time for the attorneys to conduct voir dire? What's the harm in calling a recess to allow the attorneys time to run an internet search on each of the panelists? The accused is innocent unless proven otherwise, not the other way around, and he deserves the opportunity to make informed decisions in the courtroom.