What's wrong with this picture?

This is one of the lines to get into the Harris County Criminal (In)justice Center at about 8:30 this morning. It was just as bad on the other side of the building. The lines (throng? crowd?) in the elevator lobby was equally bad.

This morning was a beautiful sunny Spring morning. Just imagine standing in this line in the middle of January. Or July. Or in the rain.

The problem is there are too many people trying to get through too small a space at the same time every morning. Security measures have become draconian to the point of ridiculousness. The elevator system was obsolete the day the courthouse opened and the stairs are damn near inaccessible.

Here's an idea: stagger the dockets. Have docket calls in odd-numbered courts at 9am and in even-numbered courts at 10am, or the other way around. Rotate it from week-to-week or month-to-month. Judge Larry Standley in County Court No. 6 has the right idea -- his docket call is at 9:30am and gives everyone a little breathing room in the morning.

I'm just glad I have a badge from the county that lets me skip the procession through security. Maybe that's the problem, though. If judges, prosecutors and attorneys all had to wait in these lines every morning the way the building operates would change.

Just good, simple, honest food

I just got finished watching an episode of Gordon Ramsay's Kitchen Nightmares (the British version, not the weaker American version) on BBC America. The restaurant in need was an overpriced Italian eatery north of London. The food was crap - most of it was frozen or processed - and the chef/owner was over his head.

Ramsay asked the chef what Italian food was. The answer? Fresh ingredients cooked simply.

They threw out the pre-made sauces, the frozen vegetables and the processed pasta and began using fresh sauces and vegetables and homemade pasta. The restaurant went from being a money pit to being a money maker in a matter of weeks.

The key to fine Italian cuisine is, according to Mario Batali, simplicity in the preparation. Don't overpower the food with seasonings and sauces. Be subtle. Use seasonings to complement the food. For instance, don't drown the fish in sauce -- a little crushed black pepper, sea salt and a drizzle of olive oil is all you need to accentuate the taste of the fish.

The same lesson applies to trial work. Simplify. Distill the facts of your case into a simple story. Take out all the "lawyer words" and use plain English. Just as the key to great cuisine is what's not there, the greatest hammer you have at trial is, oftentimes, what's not said.

Next thing you know, the Baptists will be out drinking

What is this world coming to?

The Devils beat the Christians for a spot in the Final Four. Ricky Martin announces that he's gay. Harris County would rather build a stadium than pay for indigent defense.

And now this -- the Republican National Committee spent nearly $2,000 at a topless club in Los Angeles for dinner and a little bondage-themed dancing. And who says those Republicans are a bunch of uptight fuddy-duddies and right-wing wackos?

I'm sensing a little post-modern irony as the well-heeled crowd kicks back to watch leather-clad topless bunnies dance while decrying the very idea of universal health coverage.

A little island history

While waiting to talk to the head of the Warrant Division at the Galveston Police Department this morning I happened upon some display cases of police memorabilia that I found fascinating.

This is the old "mug book." I love the hat in the booking photo on the upper left.

These are an assortment of uniform patches. My favorite is the "All American City" in the middle.

This is a collection of detective badges.

Here is some assorted "office equipment." Check out the movie camera on the right.

It's possible to be just, but not fair

Apparently my post the other day on Marc Brown's campaign signs ruffled quite a few feathers both here and over on my Facebook page. Now I don't want to get back into whether Mr. Brown is a decent, honest and reasonable man or not. I wanted to talk about our use of words: specifically, fair and just.

One comment on Facebook suggested the word "just" would have been a better choice than "fair."

it's not 'fair' that you need...it's 'just.' Sometimes the 'just' thing to do and the 'fair' thing to do are not the same. If you want a partial umpire in a factual dispute, then be prepared for justice not always being fair.

And, when I stopped to think about it, I thought she was right. Then my colleague, Houston criminal defense attorney Mark Bennett argued that one cannot be just without being fair.

From the beginning: "Just" and "fair" are synonyms. There's no such thing as "just, but not fair."

To the end: The law does not tell a judge what to do in every situation. Judges have tremendous discretion, within wide bounds, to do what they consider most fair. Examples? Sure: every time a judge decides a defendant's sentence, or sets conditions of probation, or decides whether evidence is admissible under Rule 403, he's making a fairness determination. 

One of the rights enshrined in the U.S. Constitution is the right to fairness—"due process." If judging weren't about fairness, a monkey or a computer could do it.

On this point I must disagree with my learned colleague. Although just and fair are synonyms, they do not mean, nor imply, the same idea. The very fact that they are two different words tells me that at some level, they do not refer to or embrace the same idea.

According to Merriam-Webster, if something is fair it is "marked by impartiality and honesty..." and it's free from bias. But fair also refers to an object or idea that is "superficially pleasing." It is that meaning that I think most of us associate with fair. We want a level playing field, we want to play by the same rules, we want a process that allows for honest and impartial competition.

Something is just, on the other hand, if it is based on or conforms to reason or fact or if it is "legally correct." In other words, while fair refers to the appearance of the thing, just refers to the underlying rules or laws. I think it is possible for something to be just, but not fair (or at least not have the appearance of fairness).

The right of a criminal defendant to confront the witnesses against him is an example of a rule that is just with at least the appearance of not being fair. If the prosecutor wants to introduce a report or records into evidence he must bring a person in to testify about those documents and the defendant has the right to cross examine that witness. The defendant, however, can introduce business records into evidence without bringing in an outside witness -- the state has no right of confrontation.

While the application of this right may not seem fair to the state, it is just. The state has the burden of proving beyond all reasonable doubt that the defendant committed a specific criminal act. The defendant has to prove nothing. Therefore the criminal defendant should have the right to question the witness as to the source of the records, the authenticity of the records, the methodology by which someone came to those conclusions and any other area that might tend to show bias, mistake or misconduct.

The rule is just, but not necessarily fair.

Welfare, Harris County-style

So it looks like Harris County and the City of Houston have agreed on a plan to foot part of the costs for a stadium for the Houston Dynamo just across US59 from Minute Maid Park. The stadium will also be used for TSU football games (seriously, they still play football over there?)

Now it's all nice and good that the city and the county have each agreed to spend $10 million on infrastructure improvements in the area - but isn't this the same county that just cut funding on indigent defense? Somehow the county can find the money to build a sandbox derby track, a man-made lake in Katy and a soccer stadium, but they insist on reducing the amount of money paid to attorneys to represent indigent defendants.

Oh, the deal also calls for a financing district to be created in downtown that will fund the construction of a new inmate processing center -- even though the voters of Harris County have consistently voted against building a new jail.

Welfare? Well, hell, we're all for it in Harris County -- only we take the money from the poor and hand it over to the wealthy.

Skinner execution stayed despite Perry's best efforts

changeJustice: Execution set for 6pm CST tomorrow, Hank Skinner needs us now...Tell TX Governor to grant stay!http://cot.ag/bsEfCP

PrisonReformMvt: Call to action! Demand a stay for#HankSkinner Gov Perry 512-463-1782 Fax: 512-463-1849 Main number: 512-463-2000

thetrialwarrior: SPEAK OUT AGAINST INJUSTICE: Call Texas Gov. Perry 512-463-1782 and urge him to stay #HankSkinner's execution to allow a DNA test.

Messages bounced everywhere across the Twitterverse yesterday regarding the pending execution of Hank Skinner. Scarely an hour before the State of Texas was set to pump poison through Mr. Skinner's veins, the United States Supreme Court granted a stay of execution.

For an excellent analysis of the procedural history of Mr. Skinner's case, please see Houston criminal defense attorney Mark Bennett's blog post.

Back in Twitterville, tweeple were congratulating each other for their efforts in sparing Mr. Skinner's life (at least for now). However, social media had nothing to do with the Supremes' decision late yesterday afternoon. Moreover, the blow-dried one, Governor Rick Perry, ignored the deluge of phone calls, faxes, e-mails, and tweets. You see, there's nothing to be gained for Gov. Perry in delaying the execution. The votes of death penalty abolitionists and criminal defense attorneys aren't enough to make the governor think twice about allowing the murder of a man to go forward.

Perry has sabotaged (successfully to date) the work of the state forensic science commission in looking at the Cameron Willingham case. Perry's supporters don't care about due process and claims of actual innocence -- they want blood. And that blood is what will keep Perry on the public dole for another four years.

Do you want this man sitting on the bench?

I'm going to start off by saying I don't know Marc Brown and I wouldn't recognize him if he walked right up to me and said hello. But I do know that this campaign sign is very disturbing and it makes me wonder if Mr. Brown should be sitting on a criminal bench.

I understand integrity. That's something we want from our judges. I don't want to have to stand up before a judge and wonder if I'm going to get a fair shake or if I'm behind the eight-ball because my opponent was a major campaign contributor.

Where I have problems begins with tough. What exactly does that mean? Is Mr. Brown going to hold the state to its burden and enforce the law - even if it means tossing a case because the police did something wrong? Or does it mean that he's going to be tough on criminal defendants? Being that Mr. Brown comes from the Harris County District Attorney's Office, I think it's a safe bet that he won't be deterred by that little thing called the Bill of Rights when it comes time to decide whether evidence should be suppressed.

And then there's this bit about conservative. Pardon my French, but what the hell does being conservative have to do with presiding over a court? A judge is supposed to be an impartial umpire in a factual dispute -- not that we have too many of those in Harris County, but that's beside the point.

Maybe those words are just code for "What this court needs is a prosecutor wearing a black robe."

After all, according to his website, Mr. Brown is a career prosecutor and "law enforcement's choice." What else needs to be said?

Is that who you want as judge?

To test or not to test...

So the revolving door in the death house keeps a-spinning as one Hank Skinner is scheduled to be the next guest of honor at the Executioner's Ball tonight. Now I'm not going to try to lay out an eloquent argument that Mr. Skinner should not be murdered tonight because that has already been done by my colleague, Houston criminal defense attorney, Mark Bennett, Texas journalist Brandi Grissom and Canadian attorney Antonin Pribetic.

One of the criticisms of Mr. Skinner's trial attorney, Harold Comer (who ironically prosecuted Mr. Skinner for assault and theft) was that he never had DNA testing performed on biological material collected at the scene but never tested by the state. As Mark Bennett points out, it was probably because Mr. Comer was afraid of what the tests might reveal. However, by not having the material tested it becomes a flag you can wave at the jury.

"Why didn't the prosecutor test the material? If he had we would know for certain who committed this crime. Was it because he was afraid it would show someone else did it? Was it because he was lazy? If the existence of this untested material makes you think twice about whether Mr. Skinner committed this crime, that's called reasonable doubt -- and that means that Mr. Skinner is not guilty."

Is that what Mr. Comer did? No, it's not. He probably just assumed it would make things worse for Mr. Skinner (how it would make things worse, I'm not certain). My point is, though, that there are sound reasons for not testing, or retesting, evidence in certain cases.

In a DWI case, for instance, if a blood draw was conducted and the results of the blood test show your client had an alcohol concentration of over .08, do you really want to test the other sample? If you do and you don't put your expert on the stand to testify as to the result, the prosecutor will know why -- and, so will the jury. In most cases you're better off attacking the lab procedures, the chain of custody or the actual physical draw itself.

If the drunk driving case is based on a breath test I always ask the state's expert about the Toxitrap -- a device made by the manufacturer of the Intoxilyzer that can preserve a breath sample for retesting. The last thing I want is for the state to start using the Toxitrap. I don't want the breath sample preserved. I don't want to retest it on a gas chromatograph. I want to use the fact that the State of Texas won't spend $2 to preserve evidence in a criminal case. I want the jury to feel that it isn't fair that the state's breath test machine destroys the only evidence.

But back to Mr. Skinner for a minute, why is the state opposed to testing the biological material pursuant to Chapter 64 of the Texas Code of Criminal Procedure? The duty of a prosecutor is to see that justice is done -- when a man's life is at stake, shouldn't we be certain we're killing the right person?

Mythbusters tackle alcohol myths

I caught a rerun of Mythbusters on the DVR the other night that dealt with intoxication myths. The boys decided to test whether there was any way to sober up faster than just passing the time.

Alcohol Myths (Oct. Alcohol Myths (Oct. 22, 2008) Is there such thing as "beer goggles"? Can running on a treadmill or slapping someone's face help to sober up a drunk person? Can an ancient medieval weapon really fire 200 arrows over 500 yards?

Click here to see the episode.

In order to test the remedies the boys used an agility test from NASA. They would trace a pattern with a marker and time themselves. They would both trace the pattern after drinking. Then one would try a "remedy" and the other would be the control. They would then trace another pattern afterward (each pattern was different but they were all the same length and had the same number of turns.

First up was coffee. Jamie and Adam both drank until they blew a .07 on the portable breath tester. Then they both traced a pattern. Jamie drank coffee. Five minutes later they traced the pattern. The scores for both Jamie and Adam increased from the first to second test. Coffee as a "remedy" to sober up was busted.

Next up was exercise. After drinking themselves to a .09 frenzy, Adam climbed aboard the treadmill and damn near killed himself. Adam's score on the tracing test increased after the exercise while Jamie's remained the same. They decided that exercise as a remedy to intoxication was plausible.

Now it was Jamie's turn to dunk his head into a bucket of ice water. The boys drank till they hit .08 and Jamie stuck his head in the ice-cold water. The scores on the tracing test were the same for both Jamie and Adam. Thinking about dunking your head in a bucket of ice to sober up? Think again. Busted.

The final remedy was The Slap. After getting their BAC's back up to the limit, Adam stood still while Jamie slapped him so hard his face looked like rubber. The slap sobered Adam up as his score on the tracing test improved. Jamie's, though, was worse. The verdict? Plausible.

Adam then made an interesting comment along the lines that exercise and slapping the face were shown to counter the effects of intoxication as demonstrated by the tracing test and the Breathalyzer. Now I can't speak to that last statement because we were never shown the PBT readings after the boys tested the "remedies" but the results of their tests challenge the notion that the only way to sober up is to sleep it off.

My advice is to take it with a grain of salt.

Plain English, please

Anyone care to guess what this complaint's all about?

Defendant did unlawfully operate a commercial vehicle in the 3950 block of Terminal Road (South), a public street, when the said vehicle had been modified from the original design so that a part of the said vehicle other than the wheel and the surface of the level roadway was less than the clearance between the roadway and the lowest part of a rim in contact with the roadway.

I wanted this to go to trial just to see if the officer could explain it. The citation my client received was for allegedly hitting the bottom of an underpass, by the way.

Texas taking a second look at surcharges

Today's Houston Chronicle ran an excellent article on the trouble people find themselves in as a result of the Texas Department of Public Safety's Driver Responsibility Program. The program created surcharges for various traffic offenses that drivers must pay in order to prevent their driver's licenses from being suspended.

If you are convicted of driving while intoxicated, in addition to whatever penalties handed out by the court, you will face a $3,000 surcharge payable over three years from the DPS. Should you fail to make your payments, your privilege to drive will be suspended -- regardless of whether your license was suspended as a result of the conviction. Pick up another DWI conviction and the surcharge doubles.

HOW DPS SURCHARGES CAN SNOWBALL

Convicted offenders must pay these fines for three years to keep their driver's licenses:

• DWI first offense: $1,000 annually

• DWI subsequent offense within three years: $1,500 annually

• DWI with alcohol concentration of 0.16 or more: $2,000 annually

• Driving with no car insurance or a suspended driver's license: $250 annually

• Driving without a valid license: $100 annually

Money collected by program

Surcharges imposed, collected by end of November 2009

• Total fines billed: $1,721,383,578.00

• Total revenue paid: $672,150,803.95

• Fines still unpaid: $1,049,232,774.05

Drivers facing surcharges

Convicted offenders hit with surcharges as of April 2009

• Number of drivers billed: 1,641,183

• Drivers who have paid: 543,612

• Drivers who failed to pay: 1,097,571

Add in surcharges for driving without insurance, driving on a suspended license or driving without a valid Texas driver's license and the state is raking in the bucks -- that is, if the motorist can afford the payments.

Most motorists are shocked to find out about the surcharge program. There's no indication on a traffic citation that you'll get hit with a surcharge for the any offense and the prosecutor conveniently fails to mention it to unrepresented defendants. Hire an attorney without any experience in traffic court or handling DWIs and you're not going to find out either.

The program creates a cycle that some folks just can't find their way out of -- incurring a surcharge for one offense can lead to a suspension and a subsequent surcharge for driving on a suspended license.

“We can't point to anything that says that law has caused a decline in alcohol-related fatalities. We're not going to go nuts if the Legislature decides they want to repeal it.” -- Bill Lewis, MADD

The DPS is taking a hint from Virginia, who repealed their surcharge program after only a year, and may reduce surcharges for motorists whose income falls less than 120% over the poverty line.

Proposed indigence rule

The rule, if approved, would:

• Reduce fines for convicted motorists earning equal to or less than 125 percent of the poverty level

• Allow 90 days to pay the reduced fees in full and provide proof of insurance

• Allow electronic application online or by phone

• Require applicants to submit supporting documents to prove indigency

• Require DPS to mail a letter of approval or denial to any applicant

State Representatives Rodney Ellis (D-Houston) and John Carona (R-Dallas) want to end the program but it's hard for the government to cut off a revenue stream.

Oxygenated alcohol speeds up elimination

Take heart, serious drinkers. According to Korean scientists In-hwan Baek, Byung-yo Lee and Kwang-il Kwon, upping the amount of dissolved oxygen in alcohol from 8 parts per million to 25 parts per million speeds up the elimination rate of alcohol.

In a study, 49 participants consumed 12 ounces of 40 proof vodka (?) which scientists said was the equivalent of four shots (I think that should be eight shots) and their elimination rates were measured. The group that drank the "low oxygen" vodka eliminated the alcohol from their bloodstream in five hours while the group that drank the "oxygenated" vodka eliminated it 27 minutes faster. Those that drank the "oxygenated" vodka also reached an alcohol concentration of .05 faster than those who drank the regular vodka.

According to my calculations, tripling the oxygen levels in vodka increased the elimination rate by a little under 10%. If we accept the state's expert's testimony that the "average" elimination rate is .015 an hour, that works out to an elimination rate of .0165 instead. Not a great deal - but possibly enough to be the difference on a borderline breath test.

It remains to be seen whether those results can be duplicated with regular strength drinks.

I can't wait to see the marketing campaign should oxygenated alcohol hit the American market.

You say you want a PD's office...

So you want a public defender's office in Harris County, do you? Who's going to fund it? Who's going to decide on the level of funding? Who will decide how many cases a public defender can handle?

The state of New York has a public defender system that entails local Legal Aid Societies, public defender's offices and private attorneys who take criminal appointments. That system is under fire and facing a class action lawsuit alleging that indigent defendants are not be given adequate, competent legal representation.

The New York Court of Appeals is scheduled to hear arguments on whether class-action status should have been granted in the suit. Ironically, the state of New York is now defending a system that the state's own Commission on the Future of Indigent Defense Services found did not provide adequate representation in 2006.

The ultimate question with public defender's offices is whom do they serve? Their clients are indigent criminal defendants, but the very entity seeking to take away their freedom is funding their operation. Is the job of the public defender to insure that indigent defendants receive adequate and competent representation - or to manage a budget?

This old courthouse

I love old courthouses and the Colorado County Courthouse in Columbus, Texas is a beauty. The best way to experience it is to get off the interstate at US90 and take it into town. You will come to a fantastic old bridge across the Colorado River and then, as you come around the bend - there's the courthouse.

The courthouse sits on a square surrounded by downtown Columbus. The fountain looks a bit out of place and the two additions really need to go - but, all in all, a very nice building. The bench in the County Court has some amazing woodwork, too.

The courthouse sits on a square surrounded by downtown Columbus. The fountain looks a bit out of place and the two additions really need to go - but, all in all, a very nice building. The bench in the County Court has some amazing woodwork, too.

Personal feelings getting in the way of justice?

While I was in Austin for the National Association of Criminal Defense Lawyers' (NACDL) annual midwinter meeting and seminar I tweeted about a comment that one of the presenters made about prosecutors and Brady material.

The tweet said simply that "Nice prosecutors are dangerous prosecutors." What the speaker meant is that when your opponent seems like a nice guy, or a good ol' boy as we say down here, you need to stay on your toes. It's easy to spot the "mean prosecutor" or the prosecutor who's going to make you jump through hoops to get what you need. It's also easy to disarm someone by coming across as the affable one. In the courtroom, people act affable or folksy or whatever else for a reason.

If you're over in the civil courthouse you almost expect to get knifed in the back by the good ol' boy attorney. That's what they do over there. For attorneys not used to life on the "civil" side, it's easy to walk away without your wallet or your pants.

My post got a reaction from Mr. Brian Sajdak, a municipal attorney in Waukesha, Wisconsin.

Mr. Sajdak commented "Nah, if a prosecutor is 'nice' but would still screw you, he's worse than the asshole you know will screw you."

Then he commented "I think I'm nice, and I won't intentionally screw defense counsel either - unless they've tried to screw me b4."

Cynthia Henley, a colleague of mine in the Harris County criminal defense bar (and a fellow blogger) then replied "So if you think that DC has screwed you in the past, you will try to screw them, & thus their client, in retaliation?"

I piped back up and stated "But screwing someone over would be a violation of your ethical duty to 'do justice.'"

Mr. Sajdak then tweeted "Not screw, per se, but less cooperative (e.g., less likely to agree to an adjournment, etc.)"

Now I don't know Mr. Sajdak and our paths will, likely, never cross, but I have no reason to believe that he's a bad person. It does worry me, though, that he would allow his feelings about a defense attorney to color the manner in which he handled a particular case. Regardless of how a prosecutor feels about the attorney across the aisle, that prosecutor has an ethical duty to see that justice is done. If a case is shaky and should be dismissed, it should be dismissed whether the defense attorney is a nice guy or a jerk.

I stand corrected

I wanted to print an e-mail I received from Assistant Harris County District Attorney Bill Hawkins regarding my post on Judge Kevin Fine's decision to rescind his order holding that the process by which the death penalty is imposed was unconstitutional.

Mr. Hawkins pointed out an error that I made in the post. I incorrectly stated that it only took 10 votes on the two special questions to impose the death penalty. If a jury finds a defendant guilty in a capital case the jury is asked two questions: (1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) are there mitigating circumstances that warrant life in prison rather than death?

If the jury answers the first question "yes" and the second question "n0" then the death penalty is imposed. Any other combination of answers yields life in prison. To answer the first question "yes" the jury must be unanimous; to answer the second question "no" the jury must also be unanimous. However, a jury can answer the first question "no" and the second question "yes" with the agreement of 10 or more jurors.

Here's Mr. Hawkins' e-mail:

I apologize for using e-mail, but I am not real sure of the comment process on your blog. You seem to stay on top of things so I thought you may want to modify your last post. You didn’t exactly describe the special answer process on capital murder correctly. It only takes 10 answers for the questions to be answered in such a way that death is not imposed. If the either of the first two issues receive 10 No answers, or the last issue receives 10 Yes answers, then the sentence is life. In order to answer the special issues in such a way that death is imposed, the answers must be unanimous. Thus, the first two issues must each receive 12 Yes answers, and the third issue (the mitigation issue) must receive 12 No answers to result in a sentence of death.

Thanks for the clarification, Bill.

Harris County judge rescinds order in death penalty case

Judge Kevin Fine, who presides over Harris County's 177th Judicial District Court, has rescinded his finding that the procedure used to sentence defendant's to death is unconstitutional. Judge Fine has scheduled a hearing on a defense motion to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional for April 27, 2010. Both sides are to submit briefs by April 12, 2010.

At issue is whether Art. 37.071 allows innocent persons to be executed.

As to that question, the answer has to be yes. We know that innocent people are convicted of criminal offenses - whether it be speeding, drunk driving, sexual assault or murder - even with the state having to prove the elements of the alleged offense beyond all reasonable doubt. The jury must then decide whether "there is a probability that the defendant would commit criminal acts of violence" that would constitute a "continuing threat to society" and whether the defendant either intended to kill the victim or anticipated that a life might be taken.

Unlike the unanimous verdict required to convict, only 10 jurors must agree on the answers to both of the questions above. In other words, do 10 out of 12 people think a person might commit more acts of violence? You factor this in with the disqualification of potential jurors who could not vote for the death penalty and you have a combustible chamber just waiting to order the needle.

Turnabout is fair play

Apparently my posts about Precinct 5 Justice of the Peace candidate George Huntoon have struck a raw nerve in some. I have received numerous telephone calls from Mr. Huntoon about the posts wanting to give me his side of the story. I even told him that I would be willing to run his explanation of the events - unedited - if he chose to send it to me. I'm still waiting.

Now first I need to make a correction to "Is JP candidate up to his waist in water?" (Feb. 28, 2010) - the water in question was not stolen from the City of Houston, the water was stolen from the Harris Galveston Subsidence District. As far as the allegations themselves, well, here is what I gathered from my conversation with Mr. Huntoon last week.

The taped conversation I posted was between Mr. Huntoon and Alex Constantin, who is now deceased. Mr. Huntoon claims that Mr. Constantin was harassing him "constantly." He told me that about 100 people in the subdivision (Shadowlake) lived on a lake and were griping to him because the lake needed to be filled. Mr. Huntoon said he made the phone call to "throw a bone" to Mr. Constantin and because he had "too much time" on his hands. He denied the phone call had anything to do with stolen water.

Mr. Huntoon said he left the board of the Shadowlake Homeowners' Association before the theft. He claimed one of the homeowners, Zair Khan (Mr. Huntoon could not provide me with the correct spelling of the name) cut the PVC pipe and rerouted the water. He said the well was located just ten feet behind this person's house.

He kept coming back to asking why he would want to do anything for these folks whom he claimed had been harassing him. He said he wanted them to be miserable. To be fair, Mr. Huntoon was never charged with the theft. He said Sgt. Larry Buzo said there wasn't enough evidence to charge anyone.

"There is absolutely no proof whatsoever I had anything to do with it," concluded Mr. Huntoon.

On a funnier note, Mr. Huntoon said one resident in particular kept trying to throw his weight around while Mr. Huntoon was on the board. This resident was an assistant district attorney in Harris County - and is now a fine criminal defense attorney. I think he called you out, Murray.

Here is the text of an e-mail I received from Mr. Huntoon on Saturday morning. To be fair I am running it unedited.

It was good to talk to you the other day. I was very busy the next day, I was hoping to talk with you again. I can’t help but smile at the irony that you radiate. When I look at your website it appears that you make your living, helping guilty people game the system to get out of trouble. I am sure a few people are wrongly accused, or are they. It is hard to believe that all the clients that come to you with a DWI really are innocent. But you know that, and you make money trying to convince the court otherwise. That would be really hard for me to do and have a clean conscious. What do you do when one of those drunks, gets off from a DWI by your help, and then a month later goes out and gets drunk and drives home and runs over someone’s sweet 5 year old daughter?

The only reason I bring all of this up, is that it seems you are extremely fast to convict me, yet you refuse to convict your clients that you know are guilty. I guess my only fault is that I am not paying you. I suppose if I pay you to “represent” me maybe you would have a better opinion of me. Like your website says, “when bad things happen to good people”.

I don’t have any problem with you. I know you are a good dad. The fact you go to your girls softball practice and games, says a lot. But as Dad’s of girls, we really do need to set the tone and set the example for them. If we want them to grow up and live in a loving world, then we better do something to make it that way.

I don’t know what possessed me to sit down and start typing, but something intrigued me about you on the phone the other day. When I told you repeatedly that what you wrote about me was blatantly false and a lie, and when you admitted that you supported my opponent, and I asked you to do what was right and remove the lie. you were silent for a second, I think you were actually thinking about what was right and wrong for a split second. I asked you not to let the thirst for me to lose to Jeff, blur your vision to what is right and what is wrong. I actually think for a second you heard what I was saying.

I know it is hard in your profession. Right and wrong can get confusing. Prosecutor or Criminal Defense? Which one is the noble one? Which one is good versus evil? What do you do when you know in your heart that the client is guilty and you argue otherwise?

Well that’s about all I have. My daughters are waking up and we are going to the park.

In response I asked Mr. Huntoon what he thought the biggest issues facing the court were and what he would do to fix them. I have yet to receive a response.

I just hope he's not planning on doing anything to make the docket move more efficiently. Back in January I reset a case and just got my new trial date - April 12, 2011.

What smart meters say about breath test machines

In the face of rising complaints, and electric bills, the Texas Public Utilities Commission is bringing in an outside agency to determine whether the so-called smart meters are accurate. Homeowners and businesses in Houston and in North Texas have flooded power providers and line companies with complaints over (absurdly) high electric bills since the meters were installed.

In many instances homeowners and businesses saw electric bills for December and January that were higher than summertime bills. Centerpoint Energy (who manages the power lines in Houston) claims that the meters are accurate and that electric consumption rose due to the historically cold winter in the Houston area.

Maybe, but maybe not. My office is in a building behind a Victorian house in the Historic Houston Heights. The main house is about 2800 square feet, my office suite about 500. For the last two months, the electric bill for my office has been more than the electric bill for the main house. All of that juice for an office with one computer, two printers, one telephone and a thermostat set at 68 degrees. Something isn't adding up.

Company spokesman Floyd LeBlanc said CenterPoint is “extremely confident” in the accuracy of the meters but will take part in the third-party testing.

And that brings me to my point. Just because someone tells you an electronic device is accurate doesn't make it so. In a drunk driving case, the state's expert will tell the jury that the state's breath test machine was operating properly at the time of the defendant's breath test and that the machine is both reliable and accurate. Really? How so? What proof beyond the numbers of a slip of paper is there that the machine does what it's advertised to do?

There is no preserved sample that can be retested. The machine purges the breath sample after it tests it and all we are left with is a number. The same thing with the new smart meters. As long as Centerpoint says the meters are accurate you'd be hard pressed to prove otherwise. There is no way to go back and calculate how many kilowatt hours were used during the month. There is no way to replicate the usage and remeasure it with another device. There's nothing but a slip of paper with a bunch of numbers.

I guarantee that there will be at least two or three people on a jury panel that don't think the smart meter installed on their home is accurate. I guarantee you that they aren't happy about their electric bills. I guarantee you that they are angry because they can't prove the bills are wrong.

Mr. Juror, if the government tells you a device is accurate and reliable, would you take that assurance at face value? What if it was a utility company that said your electric meter was accurate and reliable, would you take them at their word?

See also:

"Public Utility Commission orders tests of smart meters" Dallas Morning News (Mar. 5, 2010)

"State regulators to test smart meters" SmartMeters.com (Mar. 5, 2010)

Juror contacts witness via Facebook

Forget about jurors googling the name of a defendant or an attorney or going online to research the accuracy of state breath test machines, how about a juror contacting a witness via Facebook with a friend request?

Lest you find it unlikely, that's what happened in a civil trial in the Bronx. After deliberating through a day in a criminal case revolving around the death of two firefighters, juror Karen Krell looked up a firefighter who had testified on Facebook and sent a request to be friends. The firefighter did not accept her request.

Supreme Court justice Margaret Clancy denied a defense motion to set aside the verdict based on Ms. Krell's conduct but did overturn the conviction based on insufficiency of the evidence.

Ms. Krell's conduct was unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions. The fundamental right of a fair trial cannot be guaranteed if jurors fail to take their obligations seriously and disregard their oaths to follow the court's rules. Before a court can set aside a verdict based on a juror's violation of a rule, however, the misconduct must have prejudiced a substantial right of the defendants. -- People v. Rios, No. 1200/06 (Feb. 23, 2010).

In anticipation of such behavior, the Office of Court Administration amended its suggested jury admonitions to cover various forms of social media.

In May 2009, the Office of Court Administration's Committee on Criminal Jury Instructions amended itsrecommended "jury admonitions" to suggest that trial judges state that "you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter."

The simple fact is that there is no way to prevent jurors from logging on to their computers or using their phones to "conduct research." To walk into a courtroom and assume that jurors are going to listen to the evidence and make their decision solely on the evidence presented in the courtroom is naive these days. You must assume if there's something bad out there that someone on that jury is going to find it.

More on Judge Fine's ruling

As promised yesterday, there is more to say about Judge Fine's ruling that Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional. Judge Fine's ruling did not state that the death penalty itself was unconstitutional, but that the procedure by which a defendant is sentenced to death is.

Art. 37.071 lays out the procedure to be followed in a capital case in Texas. The motion, submitted by defense attorneys Casey Kiernan and Robert Loper, argued that the very procedure by which the jury determines whether a defendant should be executed or sentenced to life in prison is flawed.

Of particular note is the argument that there is no scientific basis behind the testimony of state's experts regarding the "probability that a defendant would commit criminal acts of violence that would constitute a continuing threat to society." The motion also argues that the state should be required to prove unadjudicated offenses beyond a reasonable doubt. The motion also references the number of men exonerated from this nation's death rows.

Judge Fine may have walked out onto a limb with yesterday's ruling - if one were to listen to the crescendo from the right - but he isn't the first judge to depart from stare decisis. Every time the Supreme Court issues a "landmark" ruling overturning an earlier rule of law, that process began with one judge breaking with past precedent and making a ruling that he or she felt was right.

For more analysis, please see:

"Even in Texas, the death penalty still constitutional" Defending People (Mar. 4, 2010)

"Judge Fine on constitutionality of 37.071" Defending People (Mar. 4, 2010)

"Harris County judge declares death penalty unconstitutional; we're guessing there will be an appeal" Houston Press (Mar 4, 2010)

"Houston judge declares death penalty unconstitutional" Tex Parte Blog (Mar. 4, 2010)

"Judge declares death penalty unconstitutional" Houston Chronicle (Mar. 5, 2010)

Harris County judge rules that death penalty is unconstitutional

In a move certain to make heads spin at 1201 Franklin, State District Judge Kevin Fine today issued a ruling that the death penalty is unconstitutional in a response to a defense motion.

More details as they become available.

Manufacturer won't even stand behind the Intoxilyzer

How long's that warranty on your new car? What about on your new flat panel television? Would you buy that new car if the manufacturer only promised it would be free from defects in material and workmanship for one year?

The warranty on the Intoxilyzer is only for one year - and only for defects in material and workmanship. CMI will, however, gladly warrant any product repairs for 90 days.

CMI will not warrant the Intoxilyzer as "fit for the ordinary purpose for which goods of that description are used" (UCC 2-314).

CMI even refuses to warrant that the Intoxilyzer is fit for the purpose for which the state is using the machine.

§ 2-315. Implied Warranty: Fitness for Particular Purpose.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

If the manufacturer of the machine has so little faith in its fitness, why should anyone else?

Missouri court voids red light camera law

The Supreme Court of Missouri, in an en banc, decision, effectively voided red light camera tickets issued by any municipality when it ruled that the red light camera ordinance in Springfield violated state law by assigning a "hearing officer" to rule on municipal code violations.

Adolph Belt, a retired traffic officer, challenged a red light camera ticket he received. At his hearing he presented evidence that the yellow lights had been shortened and that this created a more dangerous intersection. He was, nonetheless, found liable and fined $100. Mr. Belt then appealed the case but his appeal was denied when circuit court found it Mr. Belt had no right to a trial de novo on the issue (the law had been written to disallow appeals from the administrative hearing.)

The court expressed its concern over limiting due process protections by classifying the offense as a civil matter, not a criminal matter.

"The administrative system at issue here is created for a violation of a red light ordinance, which typically is considered a moving violation." Missouri v. Belt, No. SC90324 (2010)

The state supreme court (click here for the opinion) found that state law dictates that a judge must hear cases involving municipal code violations - whether that be an associate circuit court judge, a municipal court judge or a county municipal court judge - except for cities with populations of more than 400,000 that are located in more than one county. Therefore, only Kansas City and St. Louis can create a process by which an administrative hearing officer presides over cases involving violations of a municipal code.

While the Transportation Code in Texas does allow such a procedure, I think it is problematic that Texas, like Missouri, has attempted to skirt due process issues by classifying a red light camera ticket as a civil violation rather than a criminal violation. Slighting due process concerns in the name of increasing revenue is just plain wrong.

Stadium trumps indigent defendants' rights

So while Harris County commissioner decided the county did not have enough money to continue funding indigent defense at its current levels (see "Indigent defendants take a hit"), the county was able to find enough money to go into a joint venture with the City of Houston and the Houston Harris County Sports Authority to build a new stadium for the Houston Dynamo.

Now I'm a soccer fan. I watch it, I coach it and I play it. But, if the county insists that payments to attorneys appointed to represent indigent defendants must be reduced, how does it find the funds to help build a stadium for a privately-held entity?

I've heard all the arguments about how it will revitalize the east side of downtown and create new jobs, blah, blah, blah. Those are the same arguments trotted out anytime someone wants to build a new stadium. The truth is the building of a stadium just takes money out of one set of hands and transfers it to another set. A more glaring truth can be seen down at Reliant Park - where, oh where, is the promised economic development along South Main and the South Loop? The only difference I've noticed is the huge empty lot across the freeway where Astroworld once stood.

If building stadiums made economic sense the owners of the franchises would have no problem rounding up investors to buy the land and build the playground -- the very fact they are asking the city and county to get involved tells me that the owners of the Dynamo couldn't convince enough people in the private sector to put up their own money.

And when the choice is made that it is more important to help build a stadium for a professional sports franchise than it is to see that indigent defendants are provided their Sixth Amendment right to counsel, that tells you something about the priorities of the politicians and their constituencies.

Happy birthday, Lone Star State

On March 2, 1836, 59 men gathered in a house along the Brazos River in Washington, Texas, and signed their names to the Texas Declaration of Independence. Among the complaints registered in the declaration were the Mexican government's demand that the Texans give up their weapons, refusal to allow freedom of worship and the denial of the right to trial by jury (there was also that pesky little matter of slavery that the Mexican government was opposed to).

As we celebrate the 174th birthday of the Republic of Texas, take a few moments to read the Texas Declaration of Independence.

When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.

When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism, in which every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.

When, long after the spirit of the constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to force a new government upon them at the point of the bayonet.

When, in consequence of such acts of malfeasance and abdication on the part of the government, anarchy prevails, and civil society is dissolved into its original elements. In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.

Nations, as well as individuals, are amenable for their acts to the public opinion of mankind. A statement of a part of our grievances is therefore submitted to an impartial world, in justification of the hazardous but unavoidable step now taken, of severing our political connection with the Mexican people, and assuming an independent attitude among the nations of the earth.

The Mexican government, by its colonization laws, invited and induced the Anglo-American population of Texas to colonize its wilderness under the pledged faith of a written constitution, that they should continue to enjoy that constitutional liberty and republican government to which they had been habituated in the land of their birth, the United States of America.

In this expectation they have been cruelly disappointed, inasmuch as the Mexican nation has acquiesced in the late changes made in the government by General Antonio Lopez de Santa Anna, who having overturned the constitution of his country, now offers us the cruel alternative, either to abandon our homes, acquired by so many privations, or submit to the most intolerable of all tyranny, the combined despotism of the sword and the priesthood.

It has sacrificed our welfare to the state of Coahuila, by which our interests have been continually depressed through a jealous and partial course of legislation, carried on at a far distant seat of government, by a hostile majority, in an unknown tongue, and this too, notwithstanding we have petitioned in the humblest terms for the establishment of a separate state government, and have, in accordance with the provisions of the national constitution, presented to the general Congress a republican constitution, which was, without just cause, contemptuously rejected.

It incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our constitution, and the establishment of a state government.

It has failed and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.

It has failed to establish any public system of education, although possessed of almost boundless resources, (the public domain,) and although it is an axiom in political science, that unless a people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self government.

It has suffered the military commandants, stationed among us, to exercise arbitrary acts of oppression and tyrrany, thus trampling upon the most sacred rights of the citizens, and rendering the military superior to the civil power.

It has dissolved, by force of arms, the state Congress of Coahuila and Texas, and obliged our representatives to fly for their lives from the seat of government, thus depriving us of the fundamental political right of representation.

It has demanded the surrender of a number of our citizens, and ordered military detachments to seize and carry them into the Interior for trial, in contempt of the civil authorities, and in defiance of the laws and the constitution.

It has made piratical attacks upon our commerce, by commissioning foreign desperadoes, and authorizing them to seize our vessels, and convey the property of our citizens to far distant ports for confiscation.

It denies us the right of worshipping the Almighty according to the dictates of our own conscience, by the support of a national religion, calculated to promote the temporal interest of its human functionaries, rather than the glory of the true and living God.

It has demanded us to deliver up our arms, which are essential to our defence, the rightful property of freemen, and formidable only to tyrannical governments.

It has invaded our country both by sea and by land, with intent to lay waste our territory, and drive us from our homes; and has now a large mercenary army advancing, to carry on against us a war of extermination.

It has, through its emissaries, incited the merciless savage, with the tomahawk and scalping knife, to massacre the inhabitants of our defenseless frontiers.

It hath been, during the whole time of our connection with it, the contemptible sport and victim of successive military revolutions, and hath continually exhibited every characteristic of a weak, corrupt, and tyrranical government.

These, and other grievances, were patiently borne by the people of Texas, untill they reached that point at which forbearance ceases to be a virtue. We then took up arms in defence of the national constitution. We appealed to our Mexican brethren for assistance. Our appeal has been made in vain. Though months have elapsed, no sympathetic response has yet been heard from the Interior. We are, therefore, forced to the melancholy conclusion, that the Mexican people have acquiesced in the destruction of their liberty, and the substitution therfor of a military government; that they are unfit to be free, and incapable of self government.

The necessity of self-preservation, therefore, now decrees our eternal political separation.

We, therefore, the delegates with plenary powers of the people of Texas, in solemn convention assembled, appealing to a candid world for the necessities of our condition, do hereby resolve and declare, that our political connection with the Mexican nation has forever ended, and that the people of Texas do now constitute a free, Sovereign, and independent republic, and are fully invested with all the rights and attributes which properly belong to independent nations; and, conscious of the rectitude of our intentions, we fearlessly and confidently commit the issue to the decision of the Supreme arbiter of the destinies of nations.