It's the reason for the season

Celebrate the reason behind the Fourth of July on July 1 at 11:00 a.m. outside the Harris County Criminal (In)justice Center as members of the Harris County Criminal Lawyers Association will read from the Declaration of Independence.

It certainly beats celebrating America's birthday by conducting forcible blood draws on American motorists accused by badge-wearing vampires of driving while intoxicated.

Plea bargains in DWI cases? Are you serious?

Yes, Virginia, the Harris County DA's Office does offer plea bargains on DWI cases -- even felony DWI cases. Last week KPRC-TV ran a story about plea agreements in felony DWI cases in Harris County -- like it was something out of the ordinary. I hate to be the one to break it to MADD, but there have been plea bargains since the day Cain stoned Abel.

I don't know the exact percentage of cases at 1201 Franklin in which a person accused of a crime pleads guilty, or no contest, in exchange for a reduced charge or reduced sentence; but when I was in law school we were told that upwards of 90% of all cases are resolved without a trial -- that means plead out or dismissed.

Most DWI prosecutions are based solely on the arresting officer's opinion -- not on any scientific grounds. If there is no breath or blood test then it comes down to whether the officer thinks the motorist is intoxicated based on his observations of the motorist or the motorist's performance on police coordination exercises. In those cases the video is often the determining factor in the jury's deliberations: if he looks drunk he'll be convicted, if he doesn't, he'll be acquitted.

Most prosecutors believe that it's better to get the conviction regardless of the sentence. That conviction can then be used down the road to enhance an offense should a motorist be hauled back into court. Of course some of those prior convictions aren't nearly as good as prosecutors thought they were at the time. There are quite a few that can't be used for enhancement purposes because of the language used on the judgments when the accused entered his or her plea. Then there are the thousands of cases involving convicted felon Dee Wallace, the disgraced former technical supervisor who filed false maintenance records for the breath test machines under her control.

It doesn't surprise me, though, that this story ran less than two weeks prior to the Fourth of July weekend -- fanning the flames surrounding the Bill of Rights as we head toward another No Refusal weekend.

Problem, what problem?

For the ordinary sports fan sitting at home, the offsides rule in soccer may very well make no sense. For a soccer fan, the rule is crystal clear. For a soccer referee, spotting a player offside should be almost instinctual.

A player is in an offside position if: he is nearer to his opponents’ goal line than both the ball and the second-last opponent (FIFA Laws of the Game, Law XI)

And yet, in front of the entire world and a stadium full of rabid fans, three officials managed to blow (yet another) call in the World Cup when they allowed the first Argentine goal on Sunday.




Amid all of the criticism of the officiating in this year's edition of the World Cup, what has FIFA in its infinite wisdom decided to do to address the officiating? Introduce instant replay? No. Add another official on the pitch? No. FIFA has decided to ban replays from the stadium big screens.

(It's also interesting to note that unlike the video of Landon Donovan scoring the winning goal for the US against Algeria, the video of the first Argentine goal against Mexico has been removed from all websites due to "copyright" issues. Really.)

Unnamed FIFA Official after being asked about yet another example of shoddy officiating in the World Cup.

That's right. FIFA has decided they won't address the actual problem of referees screwing up calls, they've decided the way to resolve the problem is not to replay anything at the stadium so the coaches, players and fans can't see them with their pants down.

Supreme Court limits scope of honest services statute

In ruling on Jeffrey Skilling's appeal of his convictions related to the collapse of Enron, the U.S. Supreme Court decided not to extend the reach of the honest service statute. At trial prosecutors alleged that Mr. Skilling had defrauded Enron shareholders of the benefit of his "honest services." The law was intended, according to Justice Ginsburg, to deal with bribes and kickbacks an executive might receive in exchange for doing something that was not in the shareholders' best interests.

"In view of this history, there is no doubt that Congress intended (this statute) to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine. To preserve the statute without transgressing constitutional limitations, we now hold that (this statute) criminalizes only the bribe-and-kickback core of (earlier) case law." -- Justice Ginsburg, Skilling v. U.S.

Now we can debate all day about the bookkeeping shenanigans that went on behind the doors at Enron and whether they were designed to make a money-losing company look profitable, but I don't think there's much question that the impetus behind the "creative accounting" was to boost quarterly earnings reports and share prices. Sure, some of Mr. Skilling's bonuses were based on meeting quarterly projections -- but meeting those numbers (however it was done) also benefited shareholders of Enron. His actions were meant to deceive accountants, not shareholders.

In its ruling last week, the Court held fast in limiting the expansion of what constitutes white collar crime. And for that, at least, the ruling ought to be applauded.

See also:
"Skilling wins Supreme Court Appeal" Wall Street Journal Law Blog (6/24/2010)
Skilling v. US, No. 08-1394 (U.S. 2010)

Celebrate the Fourth by burning the Constitution

Here we go again. Officials with the Smith County (TX) District Attorney's Office have announced the Bill of Rights will be suspended for the Fourth of July Weekend.

A multi-joint effort between the Smith County District Attorney's Office and police agencies from all over Smith County will participate in the ‘No-Refusal' D.W.I Campaign.  Upon the arrest of a suspected drunk driver, he or she will be asked if they would submit to blow into a breath-test instrument or take a blood test.  If the driver refuses and says "No" to a test, officers will obtain an immediate search warrant signed by an on-call judge to have blood drawn by a certified nurse on staff at the Smith County Jail.

So much for the Fourth Amendment and so much for "neutral and detached" magistrates. I'm guessing that our friendly on-call judge up in Smith County will mull over each and every application for a warrant that comes across his desk and question the officers as to their probable cause to arrest and their belief that the blood constitutes evidence.

Why do I see law enforcement batting 1.000 on the Fourth of July Weekend?

And, while we're at it, just how "sanitary" a place is the Smith County Jail? Where in the jail will the blood be drawn? What measures will be taken to ensure that location is sanitary?

As I have stated before, driving while intoxicated is a Class B misdemeanor, just one step above a speeding ticket. Yet, we are willing to sacrifice the Fourth Amendment (on the Fourth of July, no less) in order to obtain evidence to prosecute motorists who are accused of DWI.

Alanis, this is ironic.

You can't make this stuff up

It looks like Gov. Goodhair has found a way to resolve the Big Problem in the Gulf. It's not what you might think. We're not talking about new regulations regarding offshore drilling, we're not talking new clean-up technology, we're not even talking about making use of more renewable resources. Nope. The blow dried one wants you to get down on your knees...

TO ALL TO WHOM THESE PRESENTS SHALL COME:

WHEREAS, the Gulf Coast has suffered an unfortunate loss of life due to the explosion and sinking of the Deepwater Horizon drilling rig, which continues to threaten livelihoods, economies and precious coastal wildlife ecosystems with devastation and destruction; and

WHEREAS, throughout our history, both as a state and as individuals, Texans have been strengthened, assured and lifted up through prayer; and

WHEREAS, prayer provides peace and guidance in times of crisis and conflict, and reminds us of the comforting assurance of God's love for us all; and

WHEREAS, it seems right and fitting that the people of Texas should join with their fellow Gulf Coast residents and others across the country and around the world to thank God, seek his wisdom for ourselves and our leaders, and ask him for his merciful intervention and healing in this time of crisis;

NOW, THEREFORE, I, RICK PERRY, Governor of Texas, under the authority vested in me by the Constitution and Statutes of the State of Texas, do hereby proclaim Sunday, June 27, 2010, as a Day of Prayer in the State of Texas. I urge Texans of all faiths and religious traditions to offer prayers on that day for the healing of individuals, the rebuilding of communities and the restoration of entire Gulf Coast environment in the wake of this disaster.

IN TESTIMONY WHEREOF, I have hereunto signed my name and have officially caused the Seal of State to be affixed at my Office in the City of Austin, Texas, this the 23rd day of June, 2010.

RICK PERRY
Governor of Texas

Give 'em a foot and they'll take a mile

Yesterday, Ohio criminal defense attorney Jeff Gamso wrote on his blog Gamso - For the Defense about the case of Robert Stevens who was charged with a criminal offense for marketing videos of dog fights. Mr. Stevens was being prosecuted under a law designed to criminalize so-called "crush" videos that depicted small animals being crushed to death.

Los federales decided that the prohibition on crush videos should extend to videos of dogs being hurt, maimed and killed in dogfights. The Supreme Court saw otherwise and declared the law unconstitutional.

Mr. Gamso's premise was that governments enact bad laws because of bad facts that, despite promises the scope of the law will be limited, often are used in ways not foreseen at the time the law was passed. This overextension of the penal code is a grave threat to our liberty and must be fought at every opportunity.

Let's face it, anytime you can get the National Association of Criminal Defense Lawyers and the Heritage Foundation to agree on something -- you've got a problem. And that's just what happened back in May when the two organizations teamed up to draft Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The problem, according to the paper, is the extension of so-called strict liability crimes in the white-collar and environmental arena. There is no question that mistakes happen in the business world -- but since the basic calculus of criminal law is Crime = Act + Intent, subjecting persons to criminal prosecution who demonstrated no intent to break the law is either absurd or frightening.

And then there's the good ol' automobile that is now, according to prosecutors in vehicular crimes, a deadly weapon.

According to Article 1.07(a)(17) of the Texas Penal Code, a deadly weapon is (a) "a firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury" or (b) "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

It's that second definition that can make everything from a car to a can opener to a pencil a deadly weapon. The word capable completely eliminates the need to show a person intended to use the object in question as a deadly weapon. The word capable also enables the government to overcharge people accused of committing criminal acts, thereby putting more pressure on them to plead out to what they should have been charged with in the first place.

Somehow I'm not thinking that's not what was intended.

Goooooooooooool!

So there we were, in the snack lounge on the first floor of the Galveston County Courthouse just a few minutes before 11 o'clock this morning. One of the large flat screens had the US-Algeria game on. Just minutes to go. And then it happened...



It was a moment that brought us all together -- defense attorneys, prosecutors and (I think) a defendant or two.

Of course then someone ruined it by coming in and telling a lady and her child that they were ready to conduct genetic testing. Living in the moment, baby. Just living in the moment.

Law schools doing a disservice by inflating grades

According to this article in today's New York Times, law schools are happily leading us down the path of academic fraud and dishonesty. As a result of the tight job market in BigLaw, law schools across the country are easing up on their grading standards or, as is the case with Loyola Law School in Los Angeles, arbitrarily adding to students' grade point averages.

In the last couple of days both Brian Tannebaum and Scott Greenfield have touched on the malaise some new lawyers are stewing in as a result of life not living up to their dreams, now we have law schools practicing a modern form of puffery to get their students hired by BigLaw so that the school can benefit by marketing themselves as the gateway to BigLaw.

The path to success, in any field or endeavor, is not to "dumb down" the task at hand -- the true path to success is to encounter obstacles, work your way through or around them and fight your way to the end. Juries don't care what your GPA was in law school, whether you were on law review, what your scored on your bar exam or for whom you work -- they care about the facts, your client and how hard you are willing to work on your client's behalf (and whether or not they like your client).

If you're a criminal defense attorney, you're expected to lose. The deck is stacked against you and you have to be willing to pick yourself up off the floor time and time again if you hope to be successful. How is grade inflation going to help you do that?

Under cover of darkness

A blacked out van picks up five men who have trained shooting at human targets for months. Their names aren't recorded anywhere - nor is where they came from. They are paid in cash, anonymously, so there are no records. The van picks them up in the middle of the night and drives them to a rural location where a man is brought out and secured to a chair in front of a cinder block wall lined with sandbags. 


The five men line up behind a wall and slide their rifles through a hole. The man in the chair has a target placed over his heart and a black hood over his head. On the signal, all five men fire at once -- four of the rifles have live ammunition while the fifth is loaded with a blank. And that's it. 


The man in the chair tenses just before the shots are fired and goes limp shortly afterward.


The five anonymous men then pack up their rifles and are taken away.

A hit on a Mexican drug lord? A mob execution of a snitch? No. An execution by firing squad in Utah.

See also:

"Ronnie Lee Gardner: Is Utah firing squad a more humane execution?" Christian Science Monitor (6/17/2010)
"Ronnie Lee Gardner execution: Brother, daughter allowed 1 last hug through prison bars" Deseret News (6/17/2010)
"Utah executes Ronnie Lee Gardner by firing squad" New York Daily News (6/18/2010)

Mayor pulls plug on HPD vampire training

Houston Mayor Annise Parker pulled the plug on an HPD initiative to train officers to become licensed phlebotomists so they could draw blood from suspected drunk drivers. As part of their training through UTMB (University of Texas Medical Branch) and Lone Star College, seven Houston police officers first practiced drawing blood from artificial limbs, then each other and finally inmates in the psychiatric ward at Jester IV prison near Richmond. (See video.)

That's right, police officers practiced drawing blood from inmates in the psych ward of a state prison. Were the inmates informed that rank amateurs would be sticking them with needles? Were the inmates asked to consent to  being used in target practice? Did they select Jester IV so that none of the victims subjects would complain?

How far will this lunacy extend? What will the state do next to combat citizens from exercising their rights? What's the next step to ease the state's burden of proof in DWI prosecutions?

Why are motorists suspected of DWI presumed guilty?

It shouldn't be easy for the state to take away the liberty of a person accused of committing a crime. We shouldn't be bending over backwards to make it easier. Where are our "less government is better government" tea party-ites when we're talking about undermining our fundamental constitutional rights? Can you think of any type of government intrusion that is bigger than allowing the police to stick a needle in your arm just because they suspect you might have done something wrong?

Of course don't get too excited over Mayor Parker's actions. Her opposition wasn't the idea of setting vampire cops loose in the city, she didn't like the price tag of the program.

See also:

"Police train to draw suspects' blood," KPRC-TV (Nov. 11, 2009)

Why do I do what I do?

I was listening to one of my Johnny Cash CD's on the drive down to Jackson County this morning and couldn't help but push the back button to hear The Man in Black a second time. If you ever wondered why the legend always wore black on stage, just read the lyrics below:

Well, you wonder why I always dress in black,
Why you never see bright colors on my back,
And why does my appearance seem to have a somber tone.
Well, there's a reason for the things that I have on.

I wear the black for the poor and the beaten down,
Livin' in the hopeless, hungry side of town,
I wear it for the prisoner who has long paid for his crime,
But is there because he's a victim of the times.

I wear the black for those who never read,
Or listened to the words that Jesus said,
About the road to happiness through love and charity,
Why, you'd think He's talking straight to you and me.

Well, we're doin' mighty fine, I do suppose,
In our streak of lightnin' cars and fancy clothes,
But just so we're reminded of the ones who are held back,
Up front there ought 'a be a Man In Black.

I wear it for the sick and lonely old,
For the reckless ones whose bad trip left them cold,
I wear the black in mournin' for the lives that could have been,
Each week we lose a hundred fine young men.

And, I wear it for the thousands who have died,
Believen' that the Lord was on their side,
I wear it for another hundred thousand who have died,
Believen' that we all were on their side.

Well, there's things that never will be right I know,
And things need changin' everywhere you go,
But 'til we start to make a move to make a few things right,
You'll never see me wear a suit of white.

Ah, I'd love to wear a rainbow every day,
And tell the world that everything's OK,
But I'll try to carry off a little darkness on my back,
'Till things are brighter, I'm the Man In Black. 


Sounds like one of us, wouldn't you say?



He was a complex, tortured soul with an unforgettable voice who overcame his hatred of his father and the scourge of drugs to bring a bit of humanity to those warehoused in prison.

Audit reveals problems in radar traffic enforcement

It's amazing what a simple little public information request will turn up sometimes.

In Harris County it turns out that deputy constables in more than one precinct aren't certified to use the radar equipment they're using to issue tickets to motorists. Furthermore, it turns out that the radar devices they've been using weren't all calibrated or maintained properly. (See video.)

Precinct 6 (East Houston) Constable Victor Trevino has halted all radar traffic enforcement until his officers receive proper training. In Precinct 1 (Central Houston) officers are not to issue radar-based traffic tickets until they receive proper training. Precinct 5 (West Houston) Constable Phil Camus has removed about 100 radar devices from patrol cars until they've been recalibrated. Precinct 3 (Southeast Houston) Constable Ken Jones has ordered officers to obtain the proper training and certification before they can issue any more tickets.

"To me, I'm embarrassed."  -- Precinct 5 Constable Phil Camus

The issue becomes bigger than just lost revenue for the county and fines for motorists when you consider that most DWI stops begin with a traffic stop for a transportation code violation, such as speeding or not signalling a lane change. If the officers weren't certified to use the equipment and the equipment wasn't maintained properly, the basis for the stop is called into question.

The larger question is who allowed this to happen? Were the elected constables negligent in their duties? What about administrators who are supposed to keep tabs on deputies? Radar devices and breath test machines -- what else that the state buys can't you trust?

When office policy clashes with the law

According to the Texas Penal Code, the punishment range for a first-time DWI conviction is not less than 72 hours and not more than 180 days in the county jail. A second DWI conviction carries a range of not less than 30 days and not more than one year in the county jail.

Thanks to the DIVERT program in Harris County and "office policy," prosecutors are offering either 30 days in the Harris County Jail or probation for one year on first-time DWI's. As at least 14 of the 15 county criminal courts at law have signed onto the DIVERT program, all but one of the judges are in agreement with the DA's "office policy."

As an aside, I find it quite interesting that a person charged with DWI is not eligible for pretrial "diversion" in one court but is capable of pleading guilty for time served and a fine.

And, in falling in lockstep with Pat Lykos, those judges are not fulfilling their duty under the law by failing to take into consideration the entire range of punishment for a person convicted of driving while intoxicated. In essence what Harris County has done is create a mandatory minimum sentence of 30 days for driving while intoxicated - contrary to the will of the Texas Legislature.

How about an "Exercise Your Rights" weekend?

Here's an idea.

How 'bout we get some judges and defense attorneys to make themselves available to people who've been arrested and are appearing before a magistrate in order to let them know about their right to be silent, their right to counsel and their right to a reasonable bond?

Maybe they could be on call to advise motorists accused of driving while intoxicated that they have the right to decline to perform police coordination exercises and the right not to blow into the state's breath test machine.  They could even offer to review any warrants and advise the citizen accused of any deficiencies they find.

Think it could ever fly?

Jury charge undermines presumption of innocence

One of the things a judge always tells a jury (in one form or another) is that "the jury is the exclusive judge of the facts, but is bound to receive the law from the court and be governed thereby." The law is contained in the jury charge the court gives to the jury prior to their deliberations. The jury charge used in many of the misdemeanor courts in Harris County, however, misstates the law.

The standard jury charge used in County Criminal Court at Law No. 3 is one of those charges.

The law does not require a defendant to prove his or her innocence or produce any evidence at all.

That is the essence of the presumption of innocence. It is the prosecution's burden to prove that the citizen accused committed each and every element of the offense.

You are instructed that the criminal information is not evidence of guilt. It is the means whereby a Defendant is brought to trial in a misdemeanor prosecution. It is not evidence, nor can it be considered by you in passing upon the guilt or innocence of this Defendant.

It is not the jury's duty to determine whether the citizen accused is innocent of anything. It is the jury's duty to determine whether the prosecution has proved each and every element of its case beyond all reasonable doubt. If the prosecution fails to prove its case beyond all reasonable doubt, then the jury must find the citizen accused not guilty.

Your sole duty at this time is to determine the guilt or innocence of the Defendant under the information in this case, and restrict your deliberations solely to the issue of guilt or innocence of the Defendant.

This is the last paragraph of the charge and the law is misstated twice -- and this is the last thing the jurors hear from the judge before beginning their deliberations. The "sole duty" of the jury in a criminal case is to determine whether or not the prosecution has proved each and every element of the alleged offense beyond all reasonable doubt.

Using the phrase "guilt or innocence of the Defendant" three times in the charge only serves to undermine the presumption of innocence and shift the burden of proof from the state to the citizen accused.

Does anyone see a necessity defense coming?

I suppose it's time for a little comic relief at the end of a long week. I can't say that this thought hasn't crossed my mind before -- however I've never contemplated acting on it.

A Cook County assistant public defender who represents convicted felons now has to worry about keeping himself out of jail after being accused of pushing and choking a prosecutor at the Criminal Courts Building.

Henry L. Hams, 47, of Chicago was charged late Thursday afternoon with aggravated battery and resisting arrest after a rare scuffle that sent waves of whispers and startled reactions through the building at 26th Street and California Avenue.

Hams and the prosecutor, 50, had just left a courtroom where a discussion about the routine setting of a future court date became contentious. Still upset, Hams complained to the assistant state's attorney outside the courtroom, according to a law enforcement source.

The prosecutor "apparently said, 'Too bad, that's the date the judge set,' and (Hams) just lost it and shoved (the prosecutor) against the wall," the source said. "He said something about how he was sick of being mocked."

The prosecutor "was stunned and didn't do anything, and the next thing you know (Hams) had him in a headlock," the source said.

Another source who witnessed the incident said he heard a scuffle and saw Hams choking the prosecutor. "He had his hands wrapped around his throat and was just kind of riding him down the wall," the source said.

A Cook County sheriff's department sergeant and deputy rushed to intervene as Hams was alleged to have throttled the larger prosecutor.

"When our deputies attempted to break it up, Hams was on top of the victim choking him with both hands around his neck," said Steve Patterson, a sheriff's department spokesman. "When one of the two deputies attempted to pull Hams off the victim, Hams continued choking the victim with one hand and attempted to resist the deputy's efforts with his other hand."

The sergeant's back was injured, and both he and the victim were taken to local hospitals for minor injuries.

During questioning by the sheriff's office's criminal intelligence unit investigators, Hams, who will appear for a bond hearing Friday, indicated that he wanted a lawyer and said nothing further to them, Patterson said.

Hams works out of the post-conviction unit for the public defender's office and the victim works out of the special litigations section for the state's attorney's office. Patterson said the two only knew each other through legal proceedings.

News of the fracas spread quickly through the hallways. Nobody wanted to talk on the record, but many expressed surprise.

"That guy is like (TV character Steve) Urkel -- he's this little, quiet dude," said a veteran courthouse lawyer, chuckling. "(The victim) is going to hear about this one forever."

That's not a UFO, that's a courthouse

While in San Antonio for the Rusty Duncan Advanced Criminal Law Seminar I walked over to the John H. Wood, Jr. Federal Courthouse in Hemisfair Park. And, yes, that was Woody Harrelson's dad who shot and killed him back in 1979.

At first I thought I was looking at the old Hemisfair Arena. I thought how cool it would be to say that George Gervin and David Robinson played on the floor of the courthouse. Then I realized that the old home of the Spurs had been torn down some time ago. As it turns out, this courthouse will see the wrecking ball at some point as plans have been made to move the Federal Courthouse downtown. I certainly hope the new courthouse isn't more of the same ol' drab federal buildings we see everywhere else. The current courthouse is a treat to the eyes.

I certainly couldn't leave without taking a picture of Hemisfair Tower -- the second tallest freestanding tower in the United States. And, no, the Space Needle in Seattle is NOT the tallest.

Nearly 400 drivers victimized by faulty breath test machines in D.C.

According to Washington, D.C. Attorney General Peter Nickles, improperly calibrated breath test machines have thrown into question nearly 400 convictions in DWI cases. It seems that the machines were so poorly calibrated that they would overstate the estimated alcohol concentration by 20%. Somehow the officer in charge of maintaining the machines set the baseline alcohol concentrations incorrectly.

Now comes the parade of writs, dismissals and expunctions - but there is nothing that can be done to compensate the victims of the breath testers for the hell they went through as a result of the faulty machines.

These machines are every bit as fallible as any other mechanical device -- the result of a breath test is not the legal equivalent of Moses coming down from the mountain hold the Ten Commandments. The people operating these machines don't know how they work. Hell, they don't even know if the machines working properly. The breath test operator is nothing more than a glorified monkey who turns the machine on, types in some information and tells a driver to blow.

Firing up a fatty has little effect on driving

Researchers from Hartford (CT) Hospital and the University of Iowa Carver College of Medicine conducted a double-blind study on the effects of marijuana on driving and found that the drug had little effect by itself. Eighty-five test subjects (50 male and 35 female) who smoked marijuana on a regular basis took part in three driving simulations.




The first test simulated an "uneventful" drive. The second test had the subjects answering math problems while driving. The third test introduced cars coming out of intersections, a changing traffic light and a dog running into the road. Researchers found "no significant difference" between the subjects who smoked marijuana and those who smoked a placebo in the collision avoidance simulation. Researchers noted that those who smoked marijuana drove at a slower speed that those who didn't during the distracted driving simulation.

It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose...It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. -- NHTSA Fact Sheet

Researchers were quick to point out that they did not believe driving while high was safe because drivers who smoked marijuana may also have consumed alcohol and would be distracted by the radio and cell phones. Of course most of us are distracted while we drive because we are listening to the radio or to music or talking or texting on cell phones or interacting with the people in our cars.

The question, as always, is whether or not the driver lost the normal use of his mental or physical faculties because he was smoking marijuana -- and that is something that looks increasingly hard to prove.

See also:
NHTSA Drugs and Human Performance Fact Sheets: Marijuana

Ol' Red

While in the Alamo City, I couldn't resist taking a walk and snapping a few pictures of the Bexar County Courthouse. It's a beautiful red sandstone building that was designed in the Romanesque Revival style. The courthouse was placed on the National Register of Historic Places in 1977.

Construction of the courthouse commenced in 1892 and was completed in 1896. The building is undergoing a renovation.

This is a shot of the plaza on the Dolorosa Street side of the courthouse.

This shot was also taken on the Dolorosa side.

This shot was taken from the Nueva Street entrance.

A different perspective on voir dire

Thomas Mesereau, Jr., of Los Angeles, posed an interesting question as he wrapped up the 23rd Annual Rusty Duncan Advanced Criminal Law seminar in San Antonio this weekend.

Could our reliance on reasonable doubt, the burden of proof and the presumption of innocence serve to de-humanize our clients before the jury?

In other words, by focusing the attention of potential jurors on reasonable doubt, the burden of proof and the presumption of innocence during voir dire, are we telling them that it's not a question of whether or not our client did what he is accused of doing but, instead, a question of whether or not the state can prove it. In that scenario, our client isn't a person accused of a crime, he's just the person sitting in the chair next to us at the defense table.

Mr. Mesereau pointed out that by now most of the folks sitting on your jury panel have seen enough on television to know that they won't be getting the whole story in the courtroom. They know that there is certain evidence that they won't get to see because it was suppressed or deemed inadmissible. They expect us to try to keep evidence out.

Might the better approach be to look for jurors who have connections with your client? Are there certain qualities we can detect in a juror that gives us reason to believe that he or she can empathize with our client? Given the time constraints we face in the misdemeanor courts, I tend to be a bit doubtful.

While I think Mr. Mesereau made some very good points, I also think his attitude comes from his own experiences and from the types of cases he tries and clients he represents. When you're dealing with a celebrity accused of child molestation, finding jurors who connect with your client is important.

A typical DWI trial, however, really comes down to a question of opinion and when we're talking about the opinions of a police officer, the concepts of reasonable doubt, burden of proof and presumption of innocence are vital for a jury to understand.

Selig for the Supreme Court

Maybe President Obama should look to Major League Baseball Commissioner Bud Selig in choosing a replacement for retiring Justice John Paul Stevens. I know you're back there laughing and snickering and wondering if I've lost my mind. I assure you I haven't.

Why Bud Selig? Let's go back to the night of June 2, 2010 at Comerica Park in Detroit where Tigers pitcher Armando Galarraga was on the verge of making history. Two out in the top of the ninth, the Cleveland Indians had sent 26 batters to the plate and all 26 had returned to the dugout without reaching base. One more out and Mr. Galarraga would have pitched only the 21st perfect game in major league history.

Then came the blown call of all blown calls. Jason Donald hit a weak grounder and Galarraga ran to cover first. The umpire, Jim Joyce, stood by the bag and called Donald safe despite Galarraga beating him to the base by more than a step. To his credit, Mr. Joyce owned up to the call and apologized for it.

Now the ball was in Mr. Selig's hands. Everyone had seen the video. Everyone know Donald was out. Everyone knew that the umpire's blown call cost Galarraga his spot in the record books. Surely Mr. Selig would look at the evidence and decide that it was in baseball's best interest to reverse the call and award Mr. Galarraga the perfect game he pitched.



But not so fast, despite the evidence Mr. Selig held firm and told the world that the rules are the rules and that he would not undo the end of the game. Even though he knew the call was wrong and that Galarraga had his perfect game stolen from him, Mr. Selig stood firm that he would not overturn a call made by an umpire on the field.

Why, then, should Mr. Selig sit on the highest court in the land?

It goes a little like this... The Fourth Amendment protects us from unreasonable search and seizure. The Supreme Court decided that this protection was so important that any evidence obtained by means of an unreasonable search would be deemed inadmissible and would not be allowed to be presented to a jury. The "exclusionary rule" became the ultimate sanction the court could impose upon the state. And whenever a judge excluded evidence obtained by an illegal search or seizure, the judge was saying, in essence, that it didn't matter that the evidence showed the accused committed the crime and that it didn't matter that he knew and the police knew and the attorneys knew the accused committed the crime -- the rules are the rules.

Sound familiar?

You gotta speak up to shut up

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

That is the minimal warning the police are required to give to a suspect before questioning him per Miranda. We hear it in every episode of a cop show or procedural drama. 

I have countless clients that complain they weren't "read their rights" upon being arrested.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. - 5th Amendment

Notice there is nothing in either the 5th Amendment or in the Miranda warning that indicates a suspect in a criminal case has to tell the police he doesn't want to answer questions. "You have the right to remain silent." How hard a concept is that to get your head around?

Apparently much harder than you or I might think. For you see, last week the US Supreme Court decided that it wasn't enough for a suspect to remain silent and refuse to answer questions for over three hours. In Berghuis v. Thompkins (No. 08-1470, 2010), the Court held that "Thompkins' silence during the interrogation did not invoke his right to remain silent." The Court also held that when Mr. Thompkins answered one question after nearly three hours of silence that he had waived his right to remain silent.

At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. -- Berghuis v. Thompkins, 560 US ___ (2010)

After almost three hours, in which Mr. Thompkins remained silent, an officer asked Mr. Thompkins if he believed in God. After Mr. Thompkins nodded, the officer asked if he had prayed to God to forgive him for shooting the victim. Mr. Thompkins said "Yes."

Let's think about this for a second or two. Mr. Thompkins, by all accounts, was "largely" silent during the almost three hour long interrogation, but somehow that wasn't a clear and unambiguous exercise of his right to remain silent. What more did the police need? Are we now going to see more marathon interrogation sessions in which the police attempt to "beat down" a suspect's will? 

So, according to the Supreme Court, we no longer have the right to remain silent. Instead you must tell the police you aren't going to answer their questions. How absurd is that?

Liberty loses another champion

Liberty lost another of its champions with the passing of Oktavia Carstarphen. I met Oky when I first began practicing criminal law on the island. She was the secretary of the Galveston County Criminal Defense Lawyers Association (a position I now hold).

Oky was a passionate defender of the downtrodden and the Constitution. As it turned out, her passion came from her experiences as a teenager - experiences that could either turn someone into a champion for liberty or a person living in bitter resentment.

For those of y'all who never had the pleasure of knowing Oky, the following is a piece that State District Judge Susan Criss posted on her Facebook page over the weekend:

I have known Oktavia Carstarphen since I went to work in the Galveston County District Attorney's Office in 1985. Oktavia is a criminal defense attorney. She has always been kind and friendly with a very cheerful disposition. I never remember her whining or complaining about anything.

Oky lived in the U.S. most of her adult life but still has a very thick German accent. Sometimes we had to struggle to understand her but it was always worth the effort. She was devoted to doing all she could to keep her clients out of jail & prison. For years I assumed that was because she took her professional duties to heart.

Last year Oky asked me to serve as a reference for a job she was seeking. I agreed to support her in this. I had been familiar with her work and integrity for over two decades.

Then she brought me her resume. I learned about the life she led before she came to this country. She had never mentioned the horrors she faced as a young girl. During her mid-teens Oky was incarcerated as a political prisoner. For many months she was held in solitary confinement.

I respected Oky before I learned about her ordeal. But my admiration grew as I realized where her passion for fighting for civil rights was born.

Now Oky is at the end of her life surrounded by her loved ones. She fought cancer with the same courage and dignity she brought to every battle. Those of us who worked with her in the justice system will miss our friend and colleague.

Very well put, Your Honor.

Is trial prep a dirty job?

I once caught an interview with Mike Rowe and he was being asked what he thought made Dirty Jobs such a big hit. Now first I must admit that I love the show. Back when my youngest was having trouble going to sleep at night I used to rock her while I watched the tube -- and one of the shows I watched was Dirty Jobs.


It would have been so easy for Mr. Rowe to mock the people who worked jobs that nobody else wants to do -- but he never made the workers the butt of the jokes. Quite the contrary, Mike Rowe was always the punchline. He treated everyone who came on that show with respect and dignity.

Mr. Rowe's answer to the question was quite profound. He said that most of us (me included) have jobs that we can't tell at the end of the day whether we've accomplished anything. My desk, for instance, is as big a mess when I walk out of the office as it is when I walk in the next day. I see a bunch of paper, letters and files on my desk and it doesn't make any difference how much paperwork I do in the afternoon - or at night - because there's always more to do. Mr. Rowe said what made the jobs he featured on the show so compelling was that each job had a starting point and an ending point. As an example he talked about a ditch digger. At the beginning of the day there was no ditch - but by the end of the day, there was a ditch.



My "dirty job" is mowing the lawn. When I wheel the mower out to the driveway and pull the cord I can see how tall (and ragged) the grass is. But as I walk across the yard I can see where I've mowed and where I haven't. The contrast is a constant reminder that I am accomplishing something. There is almost a Zen-like quality to pushing the mower as my mind keeps being drawn back to the contrast between the cut and uncut grass.

Speaking of memorials

A memorial to victims of drunk drivers in New Mexico is set to become a national memorial (with the ped accompanying federal grant).

No word on when funding will be made available for a monument to remember our Constitutional rights that have been violated, stripped and made a mockery of by our nation's legislatures and courts in cracking down on drunk driving.

Now one death as the result of a drunk driver is one death too many -- but most of the motorists arrested on suspicion of DWI are stopped for minor traffic offenses. The idea that the state is entitled to strap down a motorist and draw blood as the result of a stop for speeding is a cruel joke to those who gave their lives to defend our liberty and freedom.

A courthouse to the north

I was up in Montgomery County the other day and decided to take some pictures of the courthouse. The central part of the courthouse was built in 1936 in what is called the "moderne" style. I've always thought of it as somewhat art deco -- much like Houston City Hall.

The view of main entrance (south side of courthouse). You can just see the 1965 addition on the left.

This is the view of the north side of the courthouse. This entrance has been boarded up.

Unfortunately, as is too often the case, when the courthouse was expanded in 1965 the architect decided, for some unknown reason, to try the boring brick school building style. The result is a horrid blend of styles. The central portion of the courthouse looks great nestled in the trees in downtown Conroe, but the extensions on the side make it look like any other mid-60's government building.