Thursday, July 29, 2010

Who's burden is it?

Memo to: Mayor Annise Parker and City Attorney David Feldman
From: Paul B. Kennedy
Date: 7/29/2010

I'm not sure if y'all realize this but when a police officer stops a motorists and issues a citation for speeding, that motorist is being charged with a criminal offense. I understand it's only a Class C misdemeanor - but that motorist may still have to pay a fine and deal with DPS surcharges.

The motorist is presumed innocent unless the state can prove its case beyond all reasonable doubt. That's right, the prosecution has the burden of proof. The motorist has a right to a trial before a jury of his peers - no matter how inconvenient that may be. The motorist also has a right to confront the witnesses against him - even if the City of Houston is going to have to shell out some overtime money for the officers.

The motorist is issued a notice informing him of where and when he is to appear for his trial. The officer who issued the citation is served with a summons to appear at the same time in the same place. If the motorist is not sitting in the courtroom when his name is called, the judge will have a warrant issued for his arrest. If the officer isn't present, the case is dismissed. But now y'all have decided that the law doesn't apply to the city and that officers don't have to be in court for the morning docket call.

It's the government who's attempting to take money out of the motorist's pocket. It's the motorist's money. It's the motorist's time. If the government wants to infringe on someone's liberty then it's the government who needs to deal with these messy inconveniences of our criminal justice system, not the motorist. Yet it's the government who decides to make innocent people sit in a courtroom for hours waiting for their accusers to show up in court. The state may have the burden of proof, but I guess the citizenry have the burden of exercising their rights.

It seems to me that the government is taking offense at the notion that a motorist dare stand up and proclaim himself not guilty. We've already seen the city proclaim red light camera violations to be civil violations in order to avoid dealing with due process and confrontation issues. How long until y'all declare all traffic offenses to be civil violations, too?

What's going to happen when nobody pleads out their cases in the morning and the courtroom remains full at 1:00 pm? What's going to happen when everyone in the courtroom demands their right to trial by jury and the Municipal Courthouse grinds to a halt?

Judge's injunction doesn't address the motive behind Arizona's immigration law

Judge Bolton's decision to enjoin the State of Arizona from enforcing provisions of SB1070 is a step in the right direction but it is not nearly the victory that some immigration advocates are proclaiming. The injunction halts the requirement that law enforcement officers check a person's immigration status while enforcing other laws. The injunction also means that immigrants are no longer required to carry their immigration papers with them and that undocumented workers are permitted to seek employment in public places.

The ruling, however, does not strike down the law.

To obtain an injunction, a party must show a court that he would be irreparably harmed if the injunction weren't granted and that he was likely to prevail on the merits of the case. But likely to prevail isn't the same thing as will prevail. In this instance the federal government demonstrated to Judge Bolton that it would be harmed due to enforcement costs.

It's good that the police have been enjoined from enforcing the more onerous sections of the law, but the law itself is still on the books. Not only that, but the attitudes among those in power in Arizona are still intact and they will continue to fight for SB1070 to the death. They will seek to destroy one of the bases of our justice system -- the presumption of innocence.

For you see, SB1070 creates the presumption that anyone who isn't white is breaking the law and as long as SB1070 remains on the books - even if neutered - the presumption of innocence is violated.

See also:

"Liberty wins in SB 1070 injunction," Tucson Citizen, July 28, 2010
"Why Judge Susan Bolton blocked key parts of Arizona's SB1070," Christian Science Monitor, July 28, 2010

Wednesday, July 28, 2010

Well, in that case he is expecting me

Me: Can I speak to Prosecutor X?

Receptionist: Is he expecting you?

Me: Not necessarily. It's about the [Client's name] case. He called me with an offer yesterday and I would like to talk to him.

Receptionist: (After dialing Prosecutor X's extension) He's out to lunch.

Me: Would it have made any difference if he was expecting me?

Receptionist: He'd see you before he leaves for lunch.

What's next? Waterboarding?

So you think sitting on the wooden benches at the City of Houston Municipal Courthouse is a long, painful experience now -- it just got longer. City of Houston Attorney David Feldman, who apparently has never met a bad idea he didn't love, sent out a memo instructing officers not to show up in court until 1:00 p.m. -- regardless of the time listed on the summons. Motorists accused of violating traffic laws will still be required to show up on time, however.

Why the change, you may ask? According to Mr. Feldman it has to do with cutting overtime hours since someone has to pay the officers for showing up (nevermind that many officers sign in and leave after telling the bailiff they are "on call"). Of course I think there's a more insidious reason. Make enough people sit in the courtroom long enough and you can wear them down and coerce a plea. Does Feldman not understand the basic principles of criminal law or does he just not give a rat's ass?

Feldman's latest hare-brained scheme (click here for his last "great" idea) will do nothing but clog the dockets further because instead of clearing cases in the morning and picking a trial case in the afternoon the courts will be trying to clear cases in the afternoon.

So what's the solution? Refuse to plead traffic cases. They're all on the trial docket anyway. We can bring the city's ATM machine to a grinding halt by refusing to go along.

Monday, July 26, 2010

The problem with (prescription) drugged driving

Intoxicated means: not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. -- Texas Penal Code Sec. 49.01(2)
According to the DWI statutes in every state in the US, a motorists is presumed intoxicated if he has an alcohol concentration of .08 or higher. But what about motorists arrested for DWI who have prescription medications in their systems?

Under the Texas DWI statute a motorist can be intoxicated by drinking alcohol, ingesting illegal drugs or taking legally prescribed medicines. A breath test will only show the presence, or absence, of alcohol. Only a blood or urine test will detect the presence of any other substances.

A blood test may show that a motorist had marijuana or cocaine in his system -- but that blood test doesn't say when the driver ingested those drugs or whether the amount found in his system was intoxicating. The same holds true with prescription medications. Due to the chemical makeup of prescription drugs, the effects of a medication may be different from person to person. Then there's the synergistic effect of drugs with each other -- it's the reason doctors ask patients if they are taking any other prescription medications before prescribing something.

Many law enforcement agencies have so-called drug recognition experts (formerly known as drug recognition evaluators) who swoop in with a battery of "tests" to determine whether a motorist suspected of DWI was intoxicated by some substance other than alcohol. Their conclusions, however, are generally determined by what the motorist admits to taking. If the motorist admits to smoking pot then driving, the DRE concludes that he was intoxicated by use of marijuana. Gotta love it when it all comes together like that.

The question becomes murkier when a motorist has only been taking prescription medications, as noted in this New York Times article. What were the medications? How do the drugs interact with each other? Were there warnings on the bottle about the effects of the drug? What dosage was the motorist taking? Was there alcohol in the driver's system? What about illegal drugs?

Chances are members of the jury panel are taking prescription medications? How would they feel if they thought they could be arrested for driving while intoxicated after taking their medicine?

Saturday, July 24, 2010

Flawed science

Yesterday I wrote about the back-door machinations over at the Texas Forensic Science Commission and an update from their meeting in Houston. The Houston Chronicle noted that a committee made up of members of the commission found that the "experts" who testified that Cameron Willingham set the fire that killed his children weren't negligent and did not exhibit any misconduct during their investigation or testimony in the case.

Now that's all well and good, but the issue isn't whether Deputy State Fire Marshall Manual Vasquez was negligent in his investigation or cooked the books -- the issue is whether the opinions to which Mr. Vasquez testified to at Mr. Willingham's trial were based on good science.

Texas Rule of Evidence 702 states that:
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."
Rule 104 makes the judge the so-called gatekeeper when it comes to scientific evidence at trial. The judge makes this determination based on a set of factors laid out in Kelly v. State, 824 SW2d 568 (Tex.Crim.App. 1992). Scientific evidence is admissible if (1) the underlying theory is valid, (2) the technique applying the theory is valid and (3) the technique was applied properly on the time in question.

So the question with regard to the Willingham case isn't whether Mr. Vasquez acted negligently or in bad faith when conducting his investigation or rendering his opinion; the question is whether the his opinion was based on a valid scientific theory. And that is what the Texas Forensic Science Commission needs to focus on instead of covering up the truth in order to keep Rick Perry from having to get a real job.

And this is what Mr. John Bradley doesn't understand. To Mr. Bradley the question of whether scientific evidence is admissible comes down to whether or not the evidence is beneficial to the state's case, not whether the evidence is based on solid science.

Friday, July 23, 2010

Burying the truth like a bone

The blow-dried one, Gov. Rick Perry of Texas, is willing to do whatever he can to erase the stink of an innocent man being executed under his watch -- and his lapdog, Williamson County District Attorney John Bradley, is doing just as his master commands.

This morning in Houston, the Texas Forensic Science Commission met with Mr. Bradley's move to bury the Cameron Willingham matter heading the agenda. Bradley has prepared a memorandum that would remove the Commission's authority to investigate the Willingham matter any further. According to the Houston Chronicle's Rick Casey, the memo is unsigned and undated but states it was drafted, edited and approved by Mr. Bradley and two other members of the Commission - one of whom, Lance Evans, is a defense attorney and member of TCDLA.

Ever since questions arose regarding the evidence the state used to convict, and later murder, Cameron Willingham, Gov. Goodhair has done everything in his power to make the elephant in the corner disappear. The last thing Perry wants to have to do is answer questions about the Willingham case during the fall campaign for the Governor's Mansion.

The governor's toady, Mr. Bradley, has been only too glad to do Perry's bidding as he continues to disregard his ethical duty as a prosecutor to see that justice is done.


Based on this Houston Chronicle report, Gov. Perry will be a happy camper tonight as four members of a committee found "insufficient evidence" to suggest that arson investigators were negligent or committed acts of misconduct in their investigation.

Members of a commission reviewing the disputed conclusion that a Texas man committed arson, which led to his 2004 execution for the deaths of his three children, say they do not believe fire investigators in the case committed negligence or misconduct.
Members of the four-person panel within the Texas Forensic Science Commission that is reviewing the probe said Friday their initial findings conclude there is insufficient evidence to establish whether there was negligence or misconduct on the part of the arson investigators. The investigators concluded Cameron Todd Willingham set a 1991 fire at his family's Corsicana home that killed his three young daughters.
A final report on the probe was set to be presented at a commission meeting later this year.

Gov. Perry had the opportunity to discover the truth in the Willingham matter but, instead, chose political expediency. What does this say about the other men sitting in Texas prisons based on testimony of junk scientists?

Harris County declares open season on motorists

Harris County has declared war on area motorists as it launches Operation Shared Responsibility this weekend. The program, spearheaded by the Harris County Sheriff's Office, will focus on making DWI and other alcohol-related arrests in specially targeted areas in the county. This weekend the focus will be on the northwest side as HCSO deputies will team up with DPS troopers, constables, the Harris County District Attorney and local police departments to attack the civil liberties of motorists caught in their web.

According to Sheriff Adrian Garcia, a dedicated dispatch line will be set up for alcohol-related issues and off-duty officers will be asked to pick up the slack while on-duty personnel are concentrated on alcohol-related traffic stops.
"As much as we endorse the heightened enforcement, we'd like to make it clear that the effort alone will not get us where we need to be," said Rick Donley, president of The Beer Alliance, a trade association for beer distributors. "Education is the key to stemming the tide."
So, if you're out and about this weekend, be careful, because the best way to avoid picking up a DWI is not to drink and drive.

Where there's a will...

Yesterday I stepped into the parallel (some would say alternate) universe known as probate court. A friend of mine had a hearing in Dallas and asked if I would cover for him. It was a simple matter, one attorney was withdrawing from the case and I just needed to stand up and say we had no objection.

While waiting for our case to be called I sat and listened as the court held hearings in a handful of other probate matters and I was struck by the expense these folks fighting over their relatives' estates must be running up while arguing about who got what.

So, if you've got kids, and you don't have a will, please find an attorney who can draft one for you. If you have little kids, be sure to designate a guardian should your kids find themselves without a parent. If you've got children from more than one marriage, make sure each of the kids is named in the will and that your estate is divided correctly. Make certain that any trusts that need to be set up either are set up as living trusts now or are created in your will.

While it may cost a few dollars to draft the necessary documents, it'll be a lot cheaper to spend the money now and get it right than letting the family wait until after you've died to figure it out.

Wednesday, July 21, 2010

There's raising the bar, and then there's raising the bar

Those of us on the "dark" side (i.e. defense bar) are taught to lower the jury's expectations as to our case and raise their expectations for the prosecutor's case. The object is to make your leap as low as possible while making the state jump through a high hoop in order to get a conviction.

Someone might want to let Donald Briskman down in Alabama know about that after he raised the bar just about as high as he could for his own client - former Oakland Raider quarterback JaMarcus Russell.
"We fully expect he will be exonerated from these charges. That's exactly how I feel. I've had an opportunity within the last week to get some additional information which bolsters my feeling that he's ultimately going to be acquitted." -- Donald Briskman
It's one thing to say that you believe the evidence will show that your client wasn't guilty or that the evidence doesn't support the charges -- it's quite another thing to inform the world that you expect your client to be exonerated. And might I remind my fellow counselor that there's a world of difference between being acquitted and being exonerated. Being acquitted means raising enough reasonable doubt to convince a jury to find your client not guilty; being exonerated means proving your client didn't do what the prosecutor said he did -- it means assuming the burden of proof.

Maybe Mr. Briskman was stricken by mike-in-face disease and just couldn't control what came out after leaving the courtroom. As less than a third of his practice is devoted to criminal defense, maybe he just didn't realize what a blunder he was making. In the civil courthouse both sides carry the burden of proof; one side meets it and the other doesn't.  Over in the strange world of the criminal justice system, on the other hand, only the prosecutor carries a burden and we win if he can't meet it.

Mr. Russell, who has joined Ryan Leaf at the top of the list of the NFL's biggest draft busts is facing a felony charge of possession of codeine.

Potted meat, anyone?

This is the text of an e-mail I received last week requesting some link juice. I have cut the back-links in order to punish the guilty.

Dear Webmaster,
My name is Brady Russ and I handle the online marketing for a network of related web sites. I am emailing to express my interest in adding your link to my site and getting a link back to my site from your site.
If I have made a mistake by sending this to the wrong address, you do not have to respond; I will remove your email from my mailing list if I fail to receive a reply.
For your convenience, your link is already posted at If you are unable to click the link please Copy & Paste it instead.
Please use the following linking details when adding my link to your site:

Title: Affordable Car Insurance
Description: Car insurance instant gratification, courtesy of Paso Auto Insurance.

If you would like to take advantage of this opportunity and keep your link up on my site, add my link and then reply to this email with the url where you have added a link to my site. If you are not interested there is no need to reply. I will remove your link along with your email address.
Thank you for your time and consideration, and I look forward to hearing from you!
Brady Russ

I sent you this email because I found, from researching your site, that your email manages these requests. If I made an error, please respond to this address:, and your email-address will be removed from the network within 2 business days. 

"A network of related web sites?" Really? I struggle to find a relevant link between my website and a website hawking auto insurance. Okay, maybe they offer SR-22's for drivers who are required to obtain one due to a license suspension. Nope. Nothing about SR-22 coverage on their website.

And I just flat out give up trying to figure out a link between a mortgage lender and a criminal defense attorney and how such a link would benefit either one of us.

Tuesday, July 20, 2010

Should I feel safer?

Ran across this story in the Houston Chronicle this morning that the Houston Police Department has acquired an old Air Force 737 to use for anti-terrorism training. Have I missed something here? The next time some group lets loose with a terrorist attack in the Bayou City will be the first time.
"I don't know of any airport in the country, or any other police department, that has a facility like this It's a win for everybody, and it will be used by the finest police force in the country." - Rep. Ted Poe (R-Houston)
I love Houston just as much as the next guy - hell, I've lived here all my life (except for those formative years on the Forty Acres) - but, let's face it, people come to Houston for business and to visit friends and family. People don't come to Houston to see the sights. So why on earth would a group of terrorists choose to hang out with the heat, humidity and mosquitoes just to blow something up -- wouldn't that make it even hotter?

It's all in the context

Now that the 2010 World Cup is over we no longer have to listen to those annoying little trumpets from hell known as vuvuzelas. Watching a World Cup was akin to listening to a swarm of mosquitoes buzzing around your  head for two hours. If you find yourself suffering from vuvuzela withdrawal or if you forgot just how damn annoying those plastic noisemakers were, click here.

Not only was it painful to listen to the toy trumpets while watching a game, they also have no context within the game. Are people blowing them to cheer on their team? Are they blowing them to boo someone? Are they chiding the referee for yet another botched call? Are the fans celebrating a goal? Or a great defensive play? Your guess is as good as mine because I have no idea. They were the white noise behind the game.

Using a shotgun approach to defending a criminal case is much the same as blowing on the insipid vuvuzela. The arguments come so fast and from so many different angles that the jury is left to wonder what you're trying to do. Everything you do in that courtroom has got to be placed within the context of the story you are telling the jury.

Sketch out your story and decide what facts fit within the outline and what facts are extraneous. What arguments advance your story and what arguments detract from it? You are the narrator and it is your job to relate your client's story to the jurors. Provide the jury with the pieces of the story, define the narrative structure and let the men and women in the box put it all together.

Firing blindly at anything that moves will do nothing more than confuse the jurors and take their concentration away from those areas on which you want them to focus. They, too, will be left to wonder what that buzzing vuvuzela means.

Monday, July 19, 2010

Judge Killer rebuked

At long last the saga of Judge Killer seems to be coming to an end with the State Commission on Judicial Conduct's release of its Findings, Conclusions and Order of Public Warning against the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller.
In condemnation of the conduct described above that violated Article 5, section 1-(a)(6)A of the Texas Constitution  and Canon 3B(8) of the Texas Code of Judicial Conduct, it is the Commission's decision to issue a PUBLIC WARNING to the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, Austin, Travis County, Texas.
Pursuant to the authority contained in Article 5, section 1-a(8) of the Texas Constitution, it is ordered that Judge Keller's conduct described above be made the subject of a PUBLIC WARNING by the State Commission on Judicial Conduct. -- Commission's Findings, Conclusions and Order of Public Warning, Inquiry Concerning Honorable Sharon Keller, Judge No. 96
For those of you who haven't followed the proceedings, Chief Judge Keller told David Dow and the Texas Defenders Service that the Court would not remain open for late filings on the day that Michael Richard was scheduled to die at the hands of the state. Mr. Richard's attorneys scrambled that day to prepare a writ of habeas corpus challenging the constitutionality of the lethal drug cocktail used by Texas to kill inmates as the US Supreme Court granted a writ of certiorari in a case out of Kentucky alleging that the drugs used by Kentucky (the same drugs used by Texas) masked the suffering of the inmate while he lay dying.

At a hearing presided over by Judge David Berchelmann, Jr. of San Antonio, Judge Keller tried to throw the blame squarely on Mr. Dow's shoulders for not filing his pleadings on time. Judge Berchelmann fell for the misdirection and spent entirely too much time raking Mr. Dow and his organization over the coals when the focus of the inquiry was Judge Keller's conduct.

The State Commission saw past the smokescreen and found that Judge Keller violated the rules of the court regarding execution day protocols, knowing that her actions would allow the state to kill Mr. Richard. The commission then issued a public warning rebuking Judge Keller for her actions -- the first time a sitting judge on the Court of Criminal Appeals has received such a warning. (Click here for the Commission's Findings.)

Judge Keller has said that she will appeal the Commission's finding and warning. Nice to see the judge taking advantage of a protocol that she denied to a man scheduled to die.

Problems in the Austin crime lab

And that's the way it goes 'round here
I think everybody knows
That's the song they've been singin' for years
That's the way the wild wind blows.

Wild Wind Blows -- Robert Earl Keen

Travis County (Texas) officials are scrambling to find an outside expert to review procedures in the Austin Police Department's crime lab after reports surfaced of problems in at least 2,000 tests performed at the facility. Back in February Cecily Hamilton, a former DNA analyst at the lab, alleged that lab techs were performing tests for which they had no training or certification and that a supervisor helped an analyst on a competency test.

According to Ms. Hamilton, Crime Lab boss Ed Harris doesn't have a science degree, nor does he have a science background. The same holds true for his lieutenants, Bill Gibbens and Tony Arnold.

Austin Police Chief Art Acevedo has called on the Texas Rangers to look into the way the crime lab operates but insists it's just a routine audit and has nothing to do with the allegations swirling around the lab.

Officials with the lab and police department chalked it up to the grumblings of a disgrunted employee and did their best to sweep the allegations under the rug. On June 23, 2010, Travis County District Attorney Rosemary Lehmberg was notified by prosecutors that there were problems in the crime lab. Just this past week the DA held a meeting with prosecutors and told them to inform defense attorneys of the alleged problems.

So it wasn't until over four months passed that the DA was informed of the alleged problems in the crime lab -- and then it was another two weeks before defense attorneys were notified of the allegations. How many people have plead guilty based on test results obtained from the APD's crime lab while Travis County officials thumbed their fiddles?

Sunday, July 18, 2010

More math lessons from Minnesota

It's one thing to forget to multiply a urine test result by .67 to get the correct alcohol concentration. It's quite another thing not to know that the failure to reduce the test result by 1/3 means the reported result is 50% higher (not 33%). But this is what citizens and attorneys in rural Minnesota are dealing with after the news broke that the crime lab couldn't figure out the actual alcohol concentration of motorists charged with driving while intoxicated.

"We remain committed to providing quality and accurate testing." -- Lt. Steven Johnson, Tri-County Regional Forensic Laboratory

If crime lab personnel can't get the simplest of math right, what gives anyone confidence they can get anything else right? And then there's the added question of why Minnesota is using the least accurate of all measures of alcohol concentration to confirm a breath test result.

What's next? Forced piss tests on No Refusal Weekends?

A special thanks to Minnesota DWI Attorney Chuck Ramsey for the attached memo.

Friday, July 16, 2010

If at first you don't succeed, lie like a rug

If you're one of the thousands of scofflaws who received red light camera tickets from the City of Houston but haven't paid, you probably received a letter warning you that failure to pay the ticket could prevent you from renewing your vehicle registration.

The only problem is that Harris County has refused to cooperate with the city in withholding vehicle registrations over fears that county revenues may be affected if fewer motorists are able to renew their vehicle registration. Of course the Houston Police Department sees nothing wrong with the letters and deny that they are part of a scare campaign being waged by the city and ATS, Inc. out of Scottsdale, Arizona (the provider of the camera equipment).
"This is a State of Texas issue, and our agreement is with the state of Texas; it is their registration to issue and it is their registration to place a hold on. If Harris County chooses not to take action on that, that is their responsibility.“ -- Vicki King, Asst. HPD Chief
Is there any need for further evidence that the red light cameras are nothing more than a money grab by the city? They make the tickets a civil matter so that the city doesn't have to prove who was driving the car, municipal courts ignore the fact that ATS is providing security services without being licensed by the state and now the lying campaign has begun.

Oh what will they dream up next over at 1200 Travis?

As an aside, I'm one of those scofflaws and I did receive the letter in question -- the day after I walked into the county tax office on Pech Road and renewed the registration to my car.

Thursday, July 15, 2010

Two plus two equals...?

Lab technicians in a crime law servicing three Minnesota counties couldn't figure out how to calculate alcohol concentrations in urine tests, leading to test results in 111 cases that overstated alcohol concentrations by 50%. In Minnesota a breath test is included in field sobriety testing. A urine test is then conducted at the station as "confirmation" of the alcohol concentration.

The only problem was lab techs failed to multiply the urine test result by .67 which led to inflated test scores. In Minnesota, as with most states, alcohol concentration is calculated based on grams per 210 liters (g/210L) of breath, grams per 100 milligrams (g/100mL) of blood and grams per 67 milliliters (g/67mL) of urine.

In a number of cases, even when calculated correctly, the alcohol concentration still exceeded the legal limit permissible. However, since penalties for DWI in Minnesota are determined, in part, by the alcohol concentration of the driver, some motorists accepted pleas for penalties more severe than might otherwise have been offered.
"It just goes to prove there is error. Science isn't always reliable when it's conducted by people. We see other cases where juries base decisions heavily on scientific evidence." -- Virginia Murphrey, Interim Chief Public Defendant, Anoka County, MN
Interestingly enough, the police may request either a blood or urine sample to "confirm" the breath test result -- but in these cases the police chose the least reliable test possible.

The nature of the beast

Not possible. The function of government is to restrict freedom in exchange for the "creation" of a group right, such as security. Laws tend to lay out what you can't do -- not what you can do. Therefore you are free to do whatever isn't otherwise proscribed.

Tuesday, July 13, 2010

Speaking out

According to Houston City Attorney David Feldman, the impetus behind the new HPD policy forbidding officers to speak to criminal defense attorneys without the prosecutor's permission was an overtime study that focused on the municipal courts. Mr. Feldman stated this afternoon that when the city began reviewing overtime records the review turned up some alleged improprieties in the municipal courts between officers and defense attorneys. He defended the new policy claiming it was a matter of "logistics." He said that what was happening was not in the best interests of the citizens of Houston.

I think what Mr. Feldman meant was when officers decide they can't remember the details of a traffic stop it puts a monkey wrench in the ATM machine known as the City of Houston Municipal Courthouse.

Robert Fickman, Mark Bennett and Nicole DeBorde (current president of HCCLA) spoke out this afternoon at the weekly city council meeting and were joined by about 50 of their colleagues. (Click here to see the video of today's meeting.)

Councilwoman Jolanda Jones, a criminal defense attorney, understood the larger issues involved and told Mr. Feldman that "the Constitution trumps overtime."

So there you have it. A policy that impedes due process and hampers a defense attorney's ability to defend his client with jail or prison time hanging over his head, was drawn up because some officers were too chummy with defense attorneys over at the Municipal Courthouse. And the city attorney had no problem with it.

Monday, July 12, 2010

Mother, may I?

Tomorrow afternoon, at the weekly Houston City Council meeting, the Harris County Criminal Lawyer's Association will speak out against Houston Police Chief Charles McClellan's newest bad idea -- forbidding his officers from speaking with criminal defense attorneys without the DA's permission. My colleague, Murray Newman, wrote about this policy and posted the memo itself on his blog, Life at the Harris County Courthouse.

The Houston Chronicle ran an editorial about the new policy this morning and suggested that Harris County District Attorney Pat Lykos' flak man, Jim Leitner (former criminal defense attorney and unsuccessful candidate for the Republican nod for DA), had the right idea when he said the officer had no problem with police officers speaking to criminal defense attorneys so long as a prosecutor was present.

Well, the only problem with that is that the officer is a fact witness in the case and defense attorneys have the right to speak to fact witnesses. So what if the fact witness in this case is wearing a blue uniform and a badge -- all that officer can do is testify as to what he or she saw (or claims to have seen). To the best of my knowledge the state is not required to call in the defense attorney when they wish to speak to a witness.

I think it all flows to the attitude of prosecutors at 1201 Franklin that the police are their witnesses. Nope. A witness is a witness is a witness. A witness either has knowledge of the circumstances surrounding an alleged criminal act, or they don't. Both sides have the right to examine the evidence prior to trial. The testimony of a witness is part and parcel of that evidence and by forbidding an officer from speaking to the defense attorney, Chief McClelland, and by extention, the Harris County DA's Office, are depriving criminal defendants of their due process rights.

Of course, if the DA's Office wants to claim that HPD is an agent of the state, well, let them go ahead...

First let's ban jury trials...

The Texas Senate Criminal Justice Committee seems to have some concerns about drunk driving in Texas. Those concerns, however, seem more focused on what they can do to make it easier for the government to infringe upon the liberty of its citizens.

In testimony before the Senate Criminal Justice Committee, an array of experts from judges to victims agreed that the state needs a smarter, more streamlined system to remove Texas as the nation's leader in alcohol-fueled traffic deaths.
Witnesses said stiff civil fines and mandatory punishments have prompted those arrested for driving while intoxicated to refuse plea deals and probation that could include treatment and alcohol monitoring. Instead, they are insisting on jury trials.
The result: more expensive prosecutions, a 20 percent drop in conviction rates since 2005, and a court backlog of 125,000 cases.

Motorists accused of driving while intoxicated are exercising their right to a trial before a jury of their peers? Shocking! What can we do to prevent this from happening?

More expensive prosecutions? I don't recall seeing anything in the Constitution or the Code of Criminal Procedure that even addresses that. Maybe the DA's office should do a little more cost-benefit analysis before deciding which cases to try.

A 20% drop in convictions for DWI? And how is that a problem? The police arrest motorists they think might be driving while intoxicated and the courts try those cases. If juries are convicting fewer motorists of DWI, maybe the police should take a closer look at their decisions in the field.

A backlog on dockets? When it comes to the constitutional rights of the accused, judicial economy should take a back seat.

Just be grateful the Texas Legislature only meets for 140 days every other year.

Sunday, July 11, 2010

A little football on the side?

Later today it will be the short passing game of the La Furia Roja against the possession oriented attack of the men of Oranje in the World Cup Final in South Africa.

Will the Spanish be able to play the skillful game of keep-away they played in the semi-final against Germany or will the Dutch side defend more physically and clog the passing lanes? Both sides have looked out of sorts during this year's tournament, but here they are playing for the ugliest trophy in all of sports.

I predict the Netherlands will suffer a death of a thousand short passes and that Spain will walk off the pitch as champions. In the end I think the Spanish attack will prove too quick and too sublime for the Dutch. The creativity of Xavi and the surgical precision of David Villa will be too much for the Netherlands to overcome.

Saturday, July 10, 2010

Legislating away your reasonable expectation of privacy

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 4th Amendment
And just what constitutes an "unreasonable" search or seizure. According to the US Supreme Court it comes down to whether one has a "reasonable expectation of privacy" in a given situation. Being in your home is different from being at the ballpark. Being in your backyard may be different than being at the zoo. Since we now have no reasonable expectation of privacy at the airport, there is no such thing as a unreasonable search (thank you, President Bush and members of Congress looking for any excuse to attack civil liberties).

And now come the zealots seeking to brand more motorists with the scarlet D. Lt. Scott Bratcher of the Dallas Police Department (apparently sending a police chief whose son shot and killed an area lawman is a faux pas) and Dallas County Commissioner Kenneth Mayfield asked the legislature to allow police to set up DWI roadblocks -- even though such measures have been defeated numerous times due to legislators' concerns about the thousands of "innocent" drivers who would be inconvenienced.

As an interesting aside, according to the Dallas Morning News, the witnesses who testified before Sen. John Whitmire's committee included law enforcement officials, judges and "victims." Apparently no one care enough to ask to hear from defense attorneys or drivers who were either acquitted or had their cases dismissed.

The police would like to do away with that pesky little requirement that they have reasonable suspicion to stop a motorist or probable cause to arrest a motorist before they can subject them to roadside calisthenics and forcible blood draws.

Bill Lewis, the head of MADD, was unmoved by concerns that roadblocks would subject motorists to unreasonable searches. According to Mr. Lewis' vision of the world, since we are already subject to being searched at airports and the state capitol, that we all should sacrifice our right to privacy and allow ourselves to be subjected to unwarranted searches and seizures while driving on the highway.

Bill Lewis of Mothers Against Drunk Driving said innocent citizens already are subjected to searches, such as when they enter the airport and, in a more recent development, at the Capitol.
"I've never tried to sneak a gun through the Capitol or an airport, but I have to go through a checkpoint," Lewis said.

Others said they would like to see No Refusal Weekends expanded so that more judges will blindly sign search warrants authorizing forcible blood draws without questioning either the need for the motorist's blood or the probable cause behind the arrest.

Hey, it's only the Fourth Amendment we're talking about here.

Friday, July 9, 2010

A rose by any other name (is just as thorny)

Oh what tangled webs we weave...

Harris County District Attorney Pat Lykos came out with the DIVERT program for motorists accused of DWI who had never been in trouble with the law before. The idea behind the program was to move DWI cases off the courts' dockets by allowing citizens charged with DWI to enter into a program that could lead to their records being expunged if they were successful.

Of course we have no idea whether anyone's record will be expunged because DIVERT is more akin to deferred adjudication (which the Legislature doesn't allow for DWI's) than pretrial diversion.

Here's how Peggy Ficak of the Houston Chronicle's Austin Bureau describes the program:

In Harris County, District Attorney Pat Lykos' office allows one accused of drunken driving for the first time to plead guilty to the DWI offense and get a strict probated sentence in which he receives treatment, performs community service and abides by other conditions, including a lock on his auto ignition that tests for alcohol use before he can drive. If he completes the program successfully, the conviction can be wiped from a motorist's record. That also allows the offender to avoid the surcharge.
"You've got to have a carrot to motivate these people, and you've got to keep the costs down," said Judge Jean Spradling Hughes, of Harris County Criminal Court at Law No. 15. "It doesn't ruin the rest of their life" the way a DWI conviction can, she added. 

The program "allows one accused of drunken plead guilty to the DWI offense..." There's the problem in a nutshell. When a defendant accepts an offer of deferred adjudication to a criminal offense he or she either pleads guilty or no contest to the judge. The judge then states that there is sufficient evidence to find the defendant guilty but that the court will defer a finding of guilt pending the completion of a period of probation. Should the person complete the probation successfully, the charge is dismissed and the person may apply for an order of nondisclosure. Should the person not complete the probation successfully, the court will enter the conviction and sentence the defendant. In other words, deferred adjudication is a contract between the court and the accused.

Pretrial diversion, on the other hand, is an agreement between the prosecutor and the accused that the prosecutor will dismiss the case should the accused complete his term of probation, or whatever else was agreed upon in the contract. Should the accused fail to keep up his end of the bargain then the case will proceed as normal. Most importantly, no plea is entered before the court and, therefore, there is no finding that there is sufficient evidence to convict the accused.

Sometimes the cure can be worse than the ailment

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. -- Texas Constitution, Art. II
Texas State Senator John Whitmire recognizes that there is something wrong with the manner in which Texas handles motorists accused of drunk driving. He understands that the surcharges imposed by the Department of Public Safety are onerous. He gets that motorists don't want a DWI conviction on their records because of the surcharges or because it may cost them their job.

What he doesn't get, apparently, is the separation of powers clause in the Texas Constitution. Sen. Whitmire is upset because different counties handle DWI cases differently. In Galveston County, it's not unusual for a motorist accused of drunk driving to plead guilty to obstruction of a highway. In Harris County, a person accused of DWI who has never been in trouble with the law before can enter the DIVERT program and (cross your fingers) have the matter expunged after completing their probation (more on this later). Get pulled over in Fort Bend County and if the case is not dismissed, plead guilty or go to trial.

Sen. Whitmire wants to put together a "working group" to figure out how to ensure that DWI's are handled the same across the state. No word on whether that working group will include defense attorneys or not.

My question, however, is who cares if Tom Green County treats first-time DWI's one way, Cameron County treats them another way and Jefferson County treats them a different way. No one questions why for so long capital crimes were handled one way in Harris County and, seemingly, another way across the rest of the Lone Star State. No one seems concerned that every county has a different policy toward pretrial diversion on nonviolent offenses such as shoplifting or possession of minor amounts of marijuana.

In Bexar County, District Attorney Susan Reed dealt with a backlog of cases by allowing first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.
Reed said her goal was to get to offenders quickly and impose strict requirements because she believes that is the way to keep people from repeat drunken driving: "It's really got teeth in it for trying to stop the behavior." Besides avoiding the surcharge, she said, the absence of a formal DWI charge keeps people from possibly losing their jobs over the matter.
Whitmire voiced concern that allowing such a charge would hide a defendant's first drunken-driving offense, allowing him to avoid enhanced penalties if he offends again.
"We're losing a record of what that person's actual offense is," he said. -- Houston Chronicle (7/8/2010)

Allowing defendants to plead to a different charge? Really? C'mon, Senator, you are well aware that it happens every day in courthouses across this state and across the country. That's why it's called a plea bargain. Why the concern when it happens in a DWI case? The records will still indicate that the person was arrested and charged with driving while intoxicated regardless of what the person actually pleads to.

Here's an idea for you, Senator. Why not allow deferred adjudication for those accused of DWI? Even with a nondisclosure order, law enforcement (and prosecutors) will know about the prior arrest and can treat any subsequent offense accordingly. Allowing those accused of driving while intoxicated to clear their case without a conviction, without a license suspension and without the onerous DPS surcharges can move dockets -- if judicial economy is what we're really concerned about.

Thursday, July 8, 2010

E-filing: The bureaucracy strikes back

It seems that whenever someone in government comes up with an innovative plan that, well, makes sense and benefits consumers, there is someone from the Department of Redtape and Inflexibility to squash the idea like a bug. Harris County District Clerk Loren Jackson's proposal to create a free e-filing portal in Harris County is the bug and the state Office of Court Administration is the shoe, according to an article in this week's edition of Texas Lawyer.

Carl Reynolds, the OCA administrative director has called Mr. Jackson's plan "hurtful" and said it could scuttle the state's plan to create a single e-filing site (that charges a "convenience fee" for each filing). As things stand currently, an electronic filing service provider takes your e-filed document and files it with Texas Online who then files it with the district clerk's office -- and the user is charged a fee by each and every entity that "touches" the document.

Texas Online is operated by NIC, Inc. under a contract with the State of Texas. Mr. Reynolds is worried that Mr. Jackson's proposed free e-filing portal would "cripple the funding model for Texas Online." That's right -- the State of Texas is not concerned about the ease of filing documents online, they are only concerned with putting money in the pocket of the company hired to run the system.

And for those of y'all who espouse free and unfettered markets -- Texas Online is a monopoly created by the government. With no competitors in the marketplace and guaranteed payments from the state, what incentive does NIC, Inc. have to make Texas Online any more efficient that it is (or isn't, depending on who you talk to)? And don't forget that the suppliers you have of any given service, the lower the cost due to the pressures of competition (that's a good thing, right?).

And, by the way, Harris County accounts for an average of 34,700 monthly e-filings -- far in excess of the total filings in Travis, Dallas, Bexar and Hidalgo Counties combined (approximately 10,700).

Wednesday, July 7, 2010

Free e-filing is on the way in Harris County

Loren Jackson, the Harris County District Clerk, is on the verge of introducing a free open e-filing portal on the district clerk's website that will allow suits to be filed electronically - saving paper, gas and time along the way.

I am happy to announce that pending Texas Supreme Court approval, the Harris County District Clerk's Office will build a free open e-filing portal enabling lawsuits to be filed electronically directly to our office. The move is an effort to further increase judicial efficiency and to save Harris County taxpayers a significant amount in costs each year, as well as to increase transparency in the judicial system by promoting greater public access to court documents and records.
Among several benefits to be delivered by the implementation of the new technology, e-filing will contribute to the reduction of paper printing, cost of processing and storage, and will help attorneys reduce the number of unnecessary trips they make to the courthouse.
The free e-filing portal will also speed up the court document and work flow process, allowing judges to view filed documents within minutes. -- Loren Jackson, HCDC

There has been a sea change in the district clerk's office since Mr. Jackson came into office in 2008 -- both in content and speed. Information on civil and criminal cases can now be pulled up in an instant and certified copies of pleadings, court filings and orders can be order and printed out in just minutes without having to drive over to one of the courthouses. And the cost of this service? Just $1 per page.

What's Mr. Jackson's opponent's campaign message for the fall election? "The office is run too efficiently?" "The level of customer service is too high?" or "Bring back the carbon paper!"

Click here to sign the petition urging the Texas Supreme Court to allow this free e-filing portal in Harris County.

Sunday, July 4, 2010

What a radical concept

Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The words of some Marxist revolutionary in the Third World? Some radical group in Latin America? Those peacenik, pot-smoking hippies in Berkley?

No. Those words were written by Thomas Jefferson in the Declaration of Independence.

Happy Birthday, America.

Happy 4th of July

Friday, July 2, 2010

The Declaration of Independence comes alive

Yesterday in front of the Harris County Criminal (In)justice Center an intrepid band of raconteurs known as the Harris County Criminal Lawyer's Association regaled an audience that included state district judges the Hon. Shawna Reagin and the Hon. Kevin Fine, with a reading of the Declaration of Independence.

HCCLA President Nicole DeBorde reads from the Declaration of Independence.

Former HCCLA President and monkey-wrench throwing Czar Robb Fickman came up with the idea (maybe after a long night at the Char Bar) to being a new tradition to remind people why we celebrate the Fourth of July. While we're at the beach or cooking out, watching a baseball game or fireworks, most of us have completely lost sight of the significance of what took place in Philadelphia back in 1776 when delegates from the colonies risked their lives by signing their names to the most revolutionary of documents.

This was driven home when a man asked me where he could get a copy of what we were reading. He seemed shocked when I told him it was the Declaration of Independence.

Thank you, Robb, for reminding us why we celebrate the Fourth.

Thursday, July 1, 2010

Wanted: a neutral and detached magistrate

Vampire-mania is coming to the Houston area for the Fourth of July Weekend. Ride the gauntlet of local law enforcement officers just waiting to pounce on you for the slightest infraction. Watch as the 4th Amendment is ripped to shreds by judges all too willing to sell their souls. Thrill to being strapped into a chair and having a needle rammed in your arm.

According to the Multi-Jurisdictional DWI Task Force
During the July 4th weekend law enforcement agencies will be participating in a No-Refusal DWI enforcement program. This is a coordinated effort between local law enforcement, the County Sheriff and our District Attorney. Throughout Southeast Harris County, law enforcement officers will be drafting evidentiary search warrants for blood when intoxicated drivers refuse to submit to a breath alcohol test.
According to WWL Radio in New Orleans, vampires are expected in the area over the weekend, too. Of course they are a little more blunt about what happens when a motorist declines to volunteer evidence that can be used against him.

This holiday weekend, many local police jurisdictions will again be enforcing a "no refusal" campaign against drunk driving. 
On both sides of the lake, suspected drunken drivers who refuse a breathalyzer test will be asked to voluntarily give blood for a test. 

If the driver refuses, police will have a local judge available around the clock to issue a warrant to take blood from the DWI suspect. 

So if you're in the Big Easy for the weekend, no need to think of that pesky little requirement that a neutral and detached magistrate must review an application for a search warrant to determine if the request is reasonable -- because that's already been determined. Nevermind that most search warrants for blood don't even state why the blood specimen the police are demanding is even evidence that a crime was committed.

Fort Worth area motorists aren't safe from the infestation, either. The Dallas Morning News reports that vampires will be on the lookout for motorists in Tarrant County and that

Anyone suspected of driving while intoxicated who refuses to submit to a blood-alcohol test will have a blood specimen drawn under a search warrant.
"People should know that when the see those red, white and blue lights behind them they will be stopped," Alpert said, "and if they refuse, they will be arrested and prosecuted."

They don't need any neutral and detached magistrates up north to decide if they're going to disregard something like the 4th Amendment. Nope, just line 'em up and prick 'em. I'm still trying to figure out what Mr. Alpert of the Tarrant County District Attorney's Office is talking about -- in order to refuse a breath test in Texas, the driver must already be under arrest. Hey, Richard, check out Chapter 724 of the Transportation Code.

Random thoughts driving back and forth to Livingston

There are a lot of flea markets alongside US59 between Cleveland and Livingston - and they're all on the west side of the highway.

Hello, Ford Explorer in front of me, you might want to consider moving to the right when faster traffic is approaching. Just a thought.

If you're appearing pro se in a divorce matter, you might want to wear something other than a worn out men's t-shirt with a black bra. The tattoo on the side of the neck was nice and I'm curious what the new one on the back of the neck is (it was still covered by paper).

Why does Polk County have better (and functioning) video equipment in the courtroom than Harris County?

Chewy pecan pralines are the best. I'm hoping our pecan tree puts out enough pecans for me to make a batch. And, by the way, it's pronounced prah-lean, not pray-lean.

Robert Earl Keen is great for a long drive up into the Piney Woods.