But who watches those who watch us?

Jose Campos Torres.

Randy Webster.

Ida Lee Delaney.

If you don't know these names then you are missing out on some of the sordid history of the Houston Police Department. Mr. Torres was handcuffed, beaten and tossed into Buffalo Bayou where he drowned. Randy Webster was shot in the head and the police left a "throw down" weapon at the scene. Ms. Delaney was shot and killed by an off-duty officer during an episode of road rage.

We can also add the story of Chad Holly, a 16 year-old beaten by eight officers (on video), to the list of victims of the Houston Police Department. Mr. Holly survived his ordeal but spent 12 hours in the hospital being treated for his injuries. But for the video camera at a storage facility, the truth of what happened that night in March might never have been known. And now the FBI wants to see the tape.

Then there's the Chinese diplomat who claims he was injured by three HPD officers in the parking garage of the Chinese consulate on Montrose Boulevard this past weekend. The officers involved have all been placed on desk duty while the investigation continues.

How many more people are out there who were beaten by the police whose stories weren't believed? who didn't have the benefit of a videotape? What really goes on when there's no one to see?

Piling on in the Great White North

Now I have railed on against the administrative license suspensions imposed by the Texas Department of Public Safety on motorists who were merely charged with drunk driving. I've seen the theater of the absurd in which a client whose case was dismissed for lack of probable cause still have to deal with a six-month license suspension because an administrative law judge couldn't figure out the law (maybe he could find it with a flashlight and two hands).

The traffic laws in the Canadian province of Ontario make our administrative penalties look tame in comparison. At least down here we get a hearing before our clients lose their licenses. Not so up in the Great White North.

To do away with that nasty little problem of motorists challenging DWI charges in court (and sometimes winning), the Ontario government decided to impose immediate sanctions on any driver who blows between a .05 and a .08. For the moment I guess we will need to erase from our brains the fact that the per se definition of intoxication in Canada is the same as in the good ol' US of A -- an alcohol concentration of .08 or higher.

If a driver has an alcohol concentration in the prescribed range, his or her driver's license will be suspended for three (3) days and a $150 fine will be imposed -- on the spot. Should it happen again in the next five years -- say goodbye to your driver's license for seven (7) days, pay another fine and prepare for some mandatory alcohol counseling. If it happens a third time the driver will lose his license for 30 days, pay a fine, attend some more mandatory alcohol counseling and have an ignition interlock device installed on his car.

There is no due process. No hearing. No conviction required

Not to be outdone, the legislature in British Columbia has decided to create another set of administrative sanctions for motorists who are alleged to have an alcohol concentration of greater than .08. These proposed sanctions will allow the B.C. government to do what we do oh so well in the states, punish those accused of drunk driving more than once for the same offense.

A special thanks to Erik Magraken and Edward Prutschi for the source material in this post.

NH Supreme Court rules police must preserve breath samples

For now New Hampshire remains the only state that provides motorists arrested for DWI their breath samples. In a 3-2 advisory ruling, the New Hampshire Supreme Court rebuffed the legislature's attempt to change the procedure.

Law enforcement officials in the Granite State argued that the requirement of preserving breath samples means the police are forced to use an "antiquated" breath test machine -- the Intoxilyzer 5000. Timothy Pifer, the man in charge of New Hampshire's 107 breath test machines described the Intoxilyzer 5000 as a "three-legged stool."

The State also claimed the the current law prevents law enforcement "from staying current with emerging technology."

"In light of the apparent absence of realistic access to additional testing, we are reluctant to conclude that the proposed breath testing is substantially without risk of error." -- NH Supreme Court opinion authored by Chief Justice John Broderick.

The Court was concerned about violating the due process rights of citizens accused of drunk driving. Their primary concern was that even though the state allows for the accused to have an independent test, it is nearly impossible to do.

Jay Godfrey of CG Labs, who tests about 20 samples a week, said that one of samples is faulty 7% of the time and both samples are faulty about 4% of the time.

Interestingly enough, the dissenters disagreed with the legislature's contention that the Intoxilyzer 5000 is "antiquated." In fact, the dissent argued that there was no need to preserve samples because the technology behind the Intoxilzyer 5000 was accurate and reliable.

County approves hybrid public defender's office

Harris County commissioners yesterday approved a proposal to create a hybrid public defender's office that would handle felony appeals and misdemeanors involving mental health issues. The creation of the office is dependent upon the county getting a $4.4 million grant from the state. According to Ms. Caprice Cosper, director of the Criminal Justice Coordinating Council, within two years the PD's office should be handling about 6400 cases. That figure would include about half of the felony appeals filed, a quarter of the juvenile cases and a smaller share of other felony and misdemeanor cases.

The new office would not replace the current hodge-podge system used in the county for appointing counsel for indigent defendants in which some courts use a "wheel" to assign attorneys while others use contract attorneys (shall we talk about the appearance of a conflict of interest?).

Precinct 1 Commissioner El Franco Lee praised the new proposal as a tool to ease jail overcrowding. Someone might want to let Mr. Lee know that this new plan won't have any affect on speeding up cases. The only possible  outcome that might ease overcrowding is getting defendants with mental health issues out of the county jail and into a treatment facility.

County Judge Ed Emmett said the new office could result in savings to the county in the event that fewer defendants are convicted due to poor representation. But wait just a minute - the new office won't take over defending indigent persons in Harris County. I guess that's just a minor detail that slipped Mr. Emmett's mind as he plans his next speech from Transtar headquarters during hurricane season.

The county plans to ask the state for a grant to fund the office through 2014. After the grant phases out, the county will pick up the tab, estimated at $7 million a year. So the county can't (or won't) foot the bill to create the office but four years down the road will set aside enough money to keep the office operational? No one on Commissioner's Court has any idea what the economic conditions will be like in 2014 or beyond. What effect will the economy have on property values and tax collections? How long until the county tells the head of the PD's office that the budget needs to be cut, case loads need to be increased and dockets need to be reduced?

Turning drunk driving into a money-making enterprise

A former state district judge from McLennan County, David Hodges, has joined the growing chorus of reasonable minds that believe the costs of the Texas DPS' Driver Responsibility Program are greater than its benefits. Mr. Hodges argues that court dockets are backlogged with DWI cases that are tried, in large measure, because of the steep surcharges assessed by the DPS. He's also upset that some counties are trying to reduce their drunk driving docket by offering pleas to charges such as obstructing a highway and reckless driving (not that I have a problem with it).

Mr. Hodges' theory is that a good number of motorists charged with drunk driving would be more than willing to plead guilty to DWI if it didn't mean staring at a $3,000 charge from the DPS. Now I think the stigma of a criminal conviction plays a large role in this backlog. After all, DWI is the one crime that almost anyone can be charged with (sorry about the dangling participle, but I'll be damned if I can think of a better way to word the sentence). I've often told clients to look around the courtroom and find someone who doesn't belong -- that person's probably charged with drunk driving.

"Our criminal justice system is supposed to be about changing behavior and making our streets safer, but there is no evidence that this program is making our streets safer." -- David Hodges, judicial liaison for the Texas Center for the Judiciary.

The Driver Responsibility Program was sold as a way of providing additional funding to regional trauma centers who, as the story goes, expend a mountain of resources treating people injured as a result of someone's bad driving. Surprisingly enough, the trauma centers have yet to receive the amount of funding they were promised when the program was instituted.

There are currently 1.2 million Texans who haven't paid their surcharges and are risking arrest every time they get behind the wheel . The balance due? Over a billion dollars.

At the same time that the state legislature has restricted the constitutional rights of motorists in Texas, legislators have been working to make DWI prosecutions into a profit-making activity. After all, who wouldn't trade off 4th, 5th and 6th amendment rights for the promise of $3,000 plus reinstatement fees?

Harris County seeks funding for PD's office

Harris County Commissioners have requested a $4.4 million grant from the State to fund a public defender's office that would handle appeals on felony cases for indigent defendants and misdemeanor cases involving mental health issues. The plan calls on the PD's office eventually to take on all felony and juvenile appointments.

Proponents of a PD's office say it will upgrade the quality of representation for indigent defendants in Harris County and will remove some of the abusive practices currently seen at the Harris County Criminal (In)justice Center. Gone would be the days of defense attorneys pleading out their clients in order to curry favor with the court (and secure more appointments). The public defender will fight more aggressively in defending his client that a court appointed attorney would. While they're at it, the PD's office should be able to reduce greenhouse gas emissions, implement universal healthcare and cure cancer.

Well, not exactly. A PD's office will be at the mercy of Harris County Commissioners who will decide how much funding is needed for indigent defense -- and let's not forget, the political power in Harris County resides largely in the right-leaning Republican suburbs; hardly a breeding ground for discontent over the violation of the constitutional rights of a person alleged to have committed a crime.

Then there's what happened up in Dallas County in 2008 (See "Common Clashes: Politics, Pressure and the Public Defender's Office" Texas Lawyer, July 7, 2008).

Let's see... the State of Texas brings criminal charges against an individual alleged to have done something wrong. The prosecutor is employed by the Harris County District Attorney's Office -- funded by Commissioners' Court. With a PD's office, the same entity that is prosecuting indigent Johnny Rotten will also be employing Mr. Rotten's attorney. What happens when the county needs to cut its budget? What happens when the Harris County Jail is packed to the gills with indigent defendants who can't post bond and who won't plead their cases?

I'm not thinking indigent defendants make up much of a constituency in the 'burbs.

See also:

"What, Price justice?" Dallas Observer, July 10, 2008
"Broken Cogs" Dallas Observer, Sept. 11, 2008

Just because it's Friday

For no reason other than it's Friday, here are some pictures I took of the Polk County Courthouse in Livingston, Texas (about 60 miles north of Houston). According to the court coordinator in the County Court at Law the interior of the courthouse will be restored to what it once looked like after the new annex is completed across the street.

This is a shot of the front of the courthouse on W. Church Street. This courthouse was built in 1923 in the Texas Renaissance Style (shouldn't there be wenches and overweight people wearing chain mail?).

This is a shot from the back parking lot.

This is the 1905 Annex. Note the support beams that have been attached to the building to keep it from falling over.

Forensic science commission meeting to be streamed online

The Texas Forensic Science Commission will meet at 9:00 a.m. on April 23, 2010 (Friday) to discuss the Cameron Willingham case.

Click here for the meeting agenda.

The meeting is being streamed over the internet. Click here to watch it.

Looking for someone to coddle?

I guess Rick Casey of the Houston Chronicle must consider me to be one of the "coddled" lawyers in Texas. Coddled? That's not a word I generally associate with myself or my colleagues. I will admit, though, that I think I have one of the best possible jobs -- I enjoy what I do and it doesn't feel like "work."

Main Entry: cod·dle 

Pronunciation: \ˈkä-d^əl\

Function: transitive verb

Inflected Form(s): cod·dled; cod·dling ˈkäd-liŋ, ˈkä-d^əl-iŋ\

Etymology: perhaps from caudle

Date: 1598

1 : to cook (as eggs) in liquid slowly and gently just below the boiling point2 : to treat with extreme or excessive care or kindness : pampercoddling criminals

Of course I don't have a steady income - and in slow months it can be a challenge to pay the mortgage, the utilities, the car note, health insurance premiums, student loans and tuition as well as office expenses.

By no means do I run a charity out of my office - I do have bills to pay after all.

Mr. Casey's statement that the most important question for an attorney to ask a potential client is how much money they have is, shall we say, stereotyping those of us who fight to defend the Constitution on a daily basis. If all we cared about was money, we'd be lining up outside the doors of Big Law seeking jobs. Our fulfillment comes a little bit differently.

While you can put a price on an injury settlement or a contract dispute, you can't put a price on liberty.

Reducing the carbon footprint

And how have I celebrated Earth Day? Let's see. I had to print out several complaints and citations at the municipal courthouse for a client who's been charged with violating a city ordinance. Then I had to file multiple copies of a petition for an occupational driver's license for another client. I'm about to print out multiple copies of a will, medical directive and power of attorney for a client and her husband and I have to prepare multiple motions to suppress in a DWI case up in Polk County tomorrow as well as prepare an appeal of an administrative license suspension.

I think that's probably enough damage for one day.

On the other hand, Harris County District Clerk Loren Jackson's office now images all new civil and criminal filings and allows access to filed documents online -- reducing both paper usage and emissions. I am looking forward to e-filing motions and documents in criminal cases as another way to reduce waste.

While I know I need to do a better job of cutting down on waste in my practice, there are a few things I have done to reduce my carbon footprint. I installed a program on both my desktop and my laptop that allows me to access my desktop from home. I also use an internet fax server that allows me to fax documents from my computer and to receive them as PDF files - cutting down on the amount of paper I use.

For some other ideas, check out Ashley Papon's article "Earth Day Promise: Reduce the Size of Your Footprint Now."

Click here for a Carbon Footprint Calculator.

Freedom, liquor and granite

Well here's a little bit of irony for y'all. The state liquor commissioner in New Hampshire has been fired after refusing to blow into the state's breath test machine after being arrested on suspicion of driving while intoxicated. As the state liquor commissioner, Richard Simard was in charge of overseeing the state's liquor stores -- those duties included marketing and enforcing state laws.

Mr. Simard was arrested and released with a promise to appear in court. Wow, and Harris County judges fret about "catch and release" for people caught with negligible amounts of marijuana on them.

I'm just a bit curious why the Granite State - that bastion of individualism - would have state-owned liquor stores. Maybe it's just the Puritanical nature of the citizenry that the people must be protected by the state from the evils of alcohol. I find it just a little bit interesting, though, that the state will allow you to liquor yourself up (and pump money into the state's coffers) and will then oblige the public's need to arrest you for drinking and driving afterward.

They'll get you both coming and going.

Happy marijuana freedom day!

If you didn't already know it, today is Marijuana Freedom Day (4/20, get it?). The folks over at NORML are planning events around the country both to protest the laws making marijuana illegal as well as to celebrate the herb, hippie lettuce, happy grass, pot - whatever you wish to call it. Houston's even in on the act.

As you may know, the Harris County Jail is packed to the gills -- due largely in part to people arrested and convicted of minor possession charges. The inmate processing center was clogged over the weekend that the Harris County Sheriff's Office announced that it would stop accepting people brought in by HPD for low-level traffic offenses. Of course that may have been because a plan for expanding the inmate processing center is scheduled to go before county commissioners.

How would I reduce overcrowding in the county jail? People arrested for what amounts to "personal use" quantities of marijuana (or as those brilliant scholars in the state legislature spell it - marihuana) should either be charged with a Class C misdemeanor for possession of paraphenalia or should be issued a citation with an order to appear in county court under the state's "Catch and Release" initiative.

Update:

According to Alan Bernstein, the Public Affairs Director of the Harris County Sheriff's Office, the sheriff's office never stopped accepting anyone brought to the jail by HPD. He said that it was HPD's decision to  stop making arrests for low-level traffic offenses.

Of course, what's really the difference between threatening not to accept arrestees and turning them away at the door?

The decompression chamber

After three days in trial last week I had a serious need for decompression. I stopped off at Onion Creek on White Oak Boulevard and had a Shiner Bock on draft. I then dashed home in time to put my girls to bed. Finally my wife and I sat down on the sofa and watched a movie -- pausing every now and then to finish up some household task. Not once was any mention made of the trial.

Friday night, after being down on the island most of the day, I took my girls to see an abridged version of Annie that the kids at their school put on.

Being in the crucible of the courtroom requires the utmost attention be paid to every word that is said, every inflection of voice and the nuances of every word. You stare at the trees, but it's easy to lose sight of the forest. Spending the next two nights with my wife and girls was great because I didn't have to peer intently into the trees -- I was able to enjoy the view of the forest.

Big Ben to sit down in 2010?

While Pittsburgh Steelers quarterback Ben Roethlisberger's legal problems appear to have passed (click here for excerpts from the police investigation), he is now awaiting word from NFL Commissioner Roger Goodell as to how many games he will miss this coming season. Despite the fact that Mr. Roethlisberger was not arrested and that no charges will be filed as a result of the alleged incidents in Georgia, the NFL has deemed fit to suspend Big Ben in 2010.

As I was driving from the courthouse to the office this morning I happened to catch Dylan Gwinn's (a/k/a "The Mighty Gwinn) show on Sports Talk 790 in which he weighed in on the Roethlisberger drama. As you may know, Roethlisberger's (now former) teammate Santonio Holmes was traded from the Steelers to the New York Jets after being sued by a woman for allegedly throwing a glass at her in a bar. According to Mr. Gwinn, there are those in the Steel City clamoring for the Steelers to cut ties with Big Ben and trade him before next week's draft.

But what I found interesting was Mr. Gwinn's assertion that the name of the game in the NFL is winning the Super Bowl and that because the Steelers have won two Super Bowls with Roethlisberger behind the wheel that the owners of the Steelers would be crazy to trade him. I do agree with the statement that the NFL is a business. But I would argue that winning the Super Bowl is not the ultimate goal for an owner of an NFL franchise. The ultimate goal is the same as in any other business - maximizing profit.

The Houston Texans are one of the league's most profitable teams - but nowhere near the Super Bowl (well, maybe about 240 miles from next year's edition). I think Bob McNair would rather ramp up the cash flow and increase the market value of the team than win a Super Bowl.

My point being that Art Rooney II, the owner of the Pittsburgh Steelers is one of the most image-conscious owners in the NFL. He understands that sports isn't just about the game -- it's about entertainment -- and if your star brings too much negative attention to your product, well, that's just not good for the bottom line.

Presumption of what?

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. -- Texas Penal Code Sec. 2.01

Except they aren't.

That is the lesson I learned yesterday after speaking to the jurors who convicted my client of driving while intoxicated. I explained to the jurors during my closing argument that the presumption of innocence requires them to look for any innocent explanation for any fact in evidence. I told them that the presumption of innocence meant they could not presume any fact to be true unless it were proven by the state.

Yet, despite my presentation during voir dire, and despite my admonitions during both opening and closing argument and despite the instructions read from the bench, members of the panel assumed that my client either had more drinks than he admitted or that the drinks he had contained more than the "standard" amount of alcohol in them. This in spite of the arresting officer's testimony that he believed my client's account of how much he drank. At least three jurors said that they thought my client had more to drink than he did - with no evidence to the contrary.

I even had one juror ask why I didn't call more witnesses - to which I told her I didn't have the burden to prove anything.

The jurors' revelations were very disturbing considering the amount of time we spent discussing the presumption of innocence and burden of proof during voir dire. Next time I will hammer those issues home harder

Indigent by any other name

I had an interesting experience sitting in Judge Jim York's court over in the Family Law Center this morning on an enforcement action. While we were waiting to go before the court, the parties in a suit to revoke the father's community supervision was called (apparently the father had been held in contempt for nonpayment of child support and then failed to pay the back due amount).

Judge York informed the father that since confinement was a possibility should the judge revoke his community supervision that he was entitled to the same rights as a criminal defendant -- one of those rights being the right to appointed counsel if he was indigent.

As proof of his inability to hire an attorney, the father produced pay stubs showing he had a job and was making $10 an hour. Judge York then looked at the father and told him that he was going to deny him an appointed attorney because, although he couldn't afford an attorney, he was not, by definition, indigent.

I sat and thought about that for a second and was dumbfounded (particularly since the next case on the docket involved a doctor and his wife getting a divorce and the court had appointed an attorney to represent the interests of the children (who had no risk of going to jail.).

After I got back to the office I pulled down my copy of Black's Law Dictionary and looked up the meaning of  indigency. According to Black's, the "inability to afford an attorney" renders one indigent for purposes of the Sixth Amendment.

Oops. Score one for Harris County.

Speak no evil, hear no evil

In the neverending quest to criminalize everything, the Juneau County (WI) District Attorney has threatened to charge health teachers who teach their students how to use condoms or other birth control devices with contributing to the delinquency of a minor, a misdemeanor charge that carries a maximum punishment of nine months in jail.

The DA, Scott Southworth, an evangelical Christian, took issue with a new state law that calls on schools to take a comprehensive approach to sex education -- something more than the "just say no" method. Mr. Southworth contends that telling students about birth control will only serve to make them want to have sex -- as evidence he pointed to the Milwaukee schools who teach a comprehensive approach to sex education and still have high teen pregnancy rates.

Of course he neglected to mention that Juneau County's teen birth rate (33.9 per 1,000) is about three percentage points above the state average and that Juneau County teaches abstinence.

Next up on Mr. Southworth's agenda: the evils of marijuana, cable television and that new-fangled internet thing. Stay tuned.

Missouri to allow vampires to wear badges

The assault on the Constitution continues in Missouri as the state legislature is on the verge of passing a bill that would allow police officers to draw blood in DWI cases without the need of a warrant. Apparently far too many drivers in Missouri have exercised their right to refuse to submit to a breath test.

The sponsor of the bill, Rep. Bryce Stevenson, a Republican, noted that the state should be looking at treatment options for drunk drivers since alcoholism is an addiction. His bill also contains provisions for creating special DWI courts in Missouri.

"It's an addiction and there needs to be treatment." -- Rep. Bryce Stevenson 

Of course this new wave of "specialty courts" brings with it a host of new problems. The supposed purpose of these courts is to provide alternative treatment options in a non-adversarial framework. If that's the case, why do these courts require defendants to enter pleas and accept treatment options with the threat of harsh sanctions should they decline or relapse? If that's the goal - just place the person in treatment and dismiss the criminal case or dismiss upon completion of treatment. Specialty courts are the state's method of co-opting defense attorneys and depriving defendants of their constitutional rights. But enough of that rant for now...

The proposed legislation is the state's attempt to coerce drivers to submit to blood or alcohol testing by increasing the penalty for exercising your right to refuse. Mr. Stephenson's bill seeks to lengthen the license suspension for refusing a test from one year to two years.

We don't allow the police to draw blood from rape or murder suspects without a warrant. A murder suspect is entitled to speak to an attorney before answering ANY questions from the police. We don't punish them for not submitting voluntarily to a blood or DNA test. Yet if someone is arrested for a misdemeanor that is just one step removed from a traffic ticket - the Constitution be damned.

Overheard at the courthouse

I overheard a Harris County criminal judge say that Harris County would never adopt the "cite and release" plan approved by the state legislature (and used in Travis County) because the population in Harris County had changed and she didn't think the program would work here.

Because the population changed? And to what population, your Honor, are you referring?

Texas appellate court turns 4th Amendment on its ear

Here's a head-scratcher for you. The Fort Worth Court of Appeals held that when arguing that a warrantless arrest is invalid that the defendant has the burden to show that the police acted unreasonably.

In State v. Woodard, Docket No. 2-09-052-CR (Tex.App.--Fort Worth, Apr. 1, 2010), officers from the Burkburnett Police Department arrested David Woodard after receiving an anonymous phone call about a car in a ditch. The officers approached Mr. Woodard walking away from the scene and asked him if he had been driving the car. Mr. Woodard admitted to driving the car.

The officers, believing that Mr. Woodard was intoxicated, began investigating the scene of the accident. After administering police coordination exercises to Mr. Woodard, the police arrested him on suspicion of driving while intoxicated.

Mr. Woodard moved to suppress the arrest and all evidence gathered as a result of the arrest on the grounds that the warrantless arrest was invalid because the officers lacked reasonable suspicion to detain him or probable cause to arrest as they had no independent knowledge that he had been driving the car, that he had consumed alcohol and that he operated the car while intoxicated.

The trial court granted Mr. Woodards's motion to suppress and the state appealed, arguing that the arrest was valid under the community caretaking exception or that it was valid because the interaction between the officers and Mr. Woodard was voluntary.

While the Court disagreed with the state's position on the community caretaking exception, the Court did find that the encounter was voluntary on Mr. Woodard's part, that the police can question a person absent reasonable suspicion or probable cause and that Mr. Woodard failed to produce evidence that the warrantless arrest was invalid.

Whatever happened to the notion that a warrantless search and seizure is deemed unreasonable absent evidence from the state that the officer had reasonable suspicion to believe criminal activity was afoot or probable cause to arrest? I guest that silly little thing called the Fourth Amendment has just been causing a bit too much trouble for the state here of late.

Quoth FourthAmendment.com...

How can a court put the burden on the defendant to show that a warrantless arrest is invalid when Fourth Amendment puts the burden on the government?Bumper v. North Carolina, 391 U.S. 543, 548 (1968). This court seems to conflate the burden of going forward and the burden of proof. The burden of going forward is satisfied by one sentence in a motion to suppress: "The defendant was subjected to a warrantless search (or arrest)."

Even more disturbing is the continued systematic destruction of a citizen's constitutional rights if he is suspected of driving while intoxicated - a misdemeanor, just one step above a traffic ticket.

The times they are a-changin'

Come gather 'round people

Wherever you roam

And admit that the waters 

Around you have grown

And accept it that soon

You'll be drenched to the bone

If your time is worth savin'

Then you better start swimmin' or you'll sink like a stone

For the times they are a-changin'

Bob Dylan "The Times They Are A-Changin'"

As of 2009 Harris County is no longer the death capital of the United States. That distinction has passed on to Los Angeles County who sent more people to death row last year (13) than the entire State of Texas.

The national trend is a reduction in the number of persons sentenced to death. This past year saw the fewest death sentences (106) since state-sponsored murder came back from the dead in 1976. Whether this be because of concerns of executing innocent people or due to the costs associated with carrying out the death penalty is ripe for debate.

Reptiles and health care

What is it that's driving people to vandalize the offices of Democratic lawmakers who support the president's health care proposal? What's driving people to threaten lawmakers who support the bill?

What would make someone so angry they would vandalize someone's office or send a threatening message? What does it tell you when the vandals are bringing back Barry Goldwater's infamous and discredited statement that "extremism in the defense of liberty is no vice."

Is it that darn reptile brain acting up again? Is it fear that incites these violent acts? Fear of what?

There are millions of people in this country that don't have health insurance. If you work for yourself you know how expensive coverage can be. Has heath care coverage become a game of the "haves" and the "have-nots?" Is this where we draw a line?

Is it the fear that if Joe Blow, or Jose Blow or Joey X has access to the same health coverage that you have that you are no longer "better" than them?

Poor Southern whites were persuaded to fight for the slave owners in the Civil War -- even though the plantation system exploited them, too. Workers have been persuaded to fight against the unions -- even though the interests of the factory owners were opposed to those of the workers. Divide and conquer has always been the mantra of those in power, but when you break it down, even a reptile brain can see that it makes no sense.

The verdict isn't the whole story

This is from  an obelisk outside the Polk County Courthouse in Livingston, Texas.

Sometimes just getting the matter in front of a jury is a victory.

Spring dreaming

Spring does bloom eternal. The smell of freshly-cut grass, the feel of the warm sun and the sound of balls smacking the mitt. Once again it's baseball season. For one day every fan of every team can dream of his local nine winning the World Series. Of course, for most fans, in the end, it's just one sad, delusional day. But we can still dream.

Once again on Monday, my oldest daughter and I will get a bag of peanuts and sit outside Minute Maid Park eating them watching other fans pour in for Opening Day. Then we'll trek inside, grab a couple of hot dogs, find our seats and watch the Astros try to win one for the hometown fans. The sights, the sounds, the smells. It's like being a kid once again.

Unfortunately this year looks to be a repeat of last year's disaster on Crawford Street. Lance Berkman starts the season on the disabled list -- and one must wonder if the "The Big Puma's" body is starting to fall apart. Roy Oswalt needs back injections in order to pitch -- has Roy O crested the hill already? Carlos Lee is a huge liability in left field -- will his bat make up for his defensive ineptitude and laziness? The pitching staff looks as shaky as a bowl of jello -- was last year's Wandy Rodriguez a sign of things to come or an aberration? The future of the club looks to be in the hands of Hunter Pence, Michael Bourn, Bud Norris and Jason Castro. Are they ready to take the wheel?

Oh well, enough of the negative. Tomorrow is Opening Day when we all get to dream.

Fighting a rear-guard action

The other day I had a conversation with a colleague who's still relatively new to the defense bar. My colleague had a client charged with driving while intoxicated with a child in the car -- a state jail felony. The defendant had a job and a family. The facts were bad and it was likely that a jury would have convicted him.

My colleague was trying either to get the client probation or at least a reduction to a regular DWI (it was not his first DWI charge). The prosecutor, however, insisted on jail time and when my colleague "threatened" to set the case for trial, said that she would seek to enhance the charge and put the client in the penitentiary.

My colleague was distraught about the effect that incarceration would have on the rest of the family.

In response I told my colleague that sometimes our job isn't to get dismissals or acquittals for our clients. Sometimes our job is to limit the damage of a conviction. Whether it be through character reference letters, sentencing packets or the testimony of family, friends and treatment providers, sometimes the best we can do for our clients and their families is to lessen the blow.

In the end the client took the prosecutor's offer rather than rolling the dice at trial.

You gotta know when to fold 'em

This past Saturday night police in Bakersfield, California made a traffic stop in the parking lot of a Taco Bell. Another vehicle pulled in behind the police car. While one officer handled the original traffic stop, the other officer went to talk to the driver of the other vehicle. That officer smelled the odor of an alcoholic beverage on the breath of the driver and asked the man for his driver's license. The man refused and began to roll up his window. The officer stuck his hand inside the open window and attempted to hit the automatic lock switch to open the door. The driver struck the officer's hand with his.

The officer ordered the driver out of the vehicle and then down to the ground. The driver refused to get on the ground but did place his hands behind his head. He was arrested on suspicion of driving while intoxicated and resisting arrest.

The driver in question? Arizona Cardinal linebacker Joey Porter.

On Wednesday, the Kern County District Attorney's Office announced that no charges would be filed against Mr. Porter because the prosecutor did not believe there was a reasonable likelihood that a jury would have found Joey Porter guilty beyond a reasonable doubt."

Now the prosecutor may be on to something. There were no bad driving facts alleged. There were no field sobriety tests conducted. There was no breath test nor a blood test. All the officer had was the smell of alcohol on the breath. With such scant evidence there is little reason to believe a panel of citizens would convict Mr. Porter of driving while intoxicated. Furthermore, without a lawful arrest (based on probable cause), the charge of resisting arrest is dead on arrival.

I don't know how much of this quick, and favorable, outcome had to do with Mr. Porter's celebrity and how much it had to do with a prosecutor carrying out his responsibility to see that justice is done. I would like to think it was the latter.