Here's a scary notion for you this Halloween

The Harris County DA's Office has announced that every weekend for the next three years will be a Shred the Constitution No Refusal Weekend.

Thanks to a $669,000 from taxpayers across the United States, the DA's office will be able to employ two additional persecutors prosecutors, an administrative assistant and a blood-drawing vampire nurse to bully motorists into blowing into the state's breath test machine under threat of a forced blood letting draw. And doesn't that just top it all? Your money is being used to undermine the Bill of Rights.

Now the Fourth Amendment says that any warrantless search is a big no-no. In the name of allowing the police to push the citizenry around, the US Supreme Court decided that unless a person had a reasonable expectation of privacy there was no such thing as an unconstitutional search. Maybe that's what's driving the expansion of the Repeal the Fourth Amendment No Refusal Weekends.

Go to the airport. You have no reasonable expectation of privacy. The lackeys from TSA can search you by use of the metal detector or the full-body scanner. You went into the airport knowing you would be searched so you can't challenge the search.

Go out to Miller Outdoor Theatre on a summer weekend to see a concert. If you fire up a blunt you've got no argument when the cops come and bust you for possession of marijuana. You have no reasonable expectation of privacy in a public place.

Make a phone call at the jail. The cops and the prosecutors are listening to every word. They even tell you that all calls are monitored. You have no reasonable expectation of privacy in your conversation.

Announce to the public that from this day forward if you are stopped on suspicion of driving while intoxicated on a Friday, Saturday or Sunday night and you choose not to blow into the breath test machine that vampires the police will get a sample of your blood, you have no reasonable expectation that your body fluids are yours and yours alone.

How long until the inevitable argument that no warrant is needed to draw blood because a motorist has no reasonable expectation of privacy when driving on a public roadway? How long until the argument that there is no warrant necessary because the alleged drunk driver can "destroy" or "alter" the evidence if the police don't seize it on the spot?

How long until we see a No Refusing to Answer Questions weekend?

Pointing the finger

Perhaps Mr. Charles Sebesta should read the Texas Disciplinary Rules of Professional Conduct if he can't understand why he's being criticized for his role in the wrongful conviction of Anthony Graves.

Rule 3.09 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; 

(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonableefforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07.

Regardless of whether Mr. Sebesta felt, or still feels, that Mr. Graves was guilty -- he was obligated to inform Mr. Graves' attorney of the fact that the only witness against Mr. Graves recanted his testimony the night before trial. He should also have disclosed the fact that he threatened to prosecute that witness' wife if he did recant.

Of course, this doesn't absolve current Washington and Burleson County District Attorney Bill Parham for his role in this cruel charade of justice. The 5th Circuit overturned Mr. Graves' conviction in 2006 and ordered a new trial. For the last four years, Mr. Graves has been incarcerated at the Burleson County Jail since he couldn't post a $1 million bond.

Mr. Parham and his team of prosecutors was well aware of Mr. Carter's recantation before trial, two weeks before his execution and in the death chamber, yet they chose to do nothing about it.

What's your excuse, Mr. Parham?

Montgomery County to disregard the Constitution this weekend

If you find yourself cruising along the highways and by-ways of Montgomery County this weekend, be careful because it's a "Shred the Constitution" Weekend according to this tweet from Brett Ligon, Montgomery County District Attorney.

MontgomeryTXDAO: Conroe Police Dept, TABC, MC Sheriff's Office, DPS and others will be out in force working No Refusal this weekend.

That Fourth Amendment right to be free from unreasonable search and seizure? Get real. That ain't worth the paper it's printed on when there's money to be made from reinstatement fees, surcharges, bonds, court costs and probation fees.

Don't say you haven't been warned.

After 16 years, the state (finally) does the right thing

Anthony Graves is a free man once again. After spending 12 years on death row and the last four years in a Burleson County jail, Mr. Graves is free to wake up and go to sleep when he wants, to eat what he wants and to do what he wants.

Mr. Graves is a free man because the current Washington and Burleson County District Attorney realized it wasn't right to keep a man behind bars after the only witness against him recanted his testimony to prosecutors the night before trial. A trial that took place in 1994.

That's right. The original prosecutor, Charles Sebesta, knew before the trial ever commenced that he was suborning perjury from Robert Earl Carter, the actual killer. Two weeks before his execution in 2000, Mr. Carter signed a sworn statement saying that Mr. Graves had nothing to do with the murders. While he was strapped on the gurney in the death chamber, Mr. Carter once again stated that Mr. Graves had nothing to do with the murders.

And now, after holding Mr. Graves for four years pending a retrial, the District Attorney is ready to admit his office was wrong.

Mr. Graves was 26 when he was taken into custody and now he's 45. No amount of money can ever compensate him or his family for the 18 years that were taken away. No apology, no matter how profuse, can make up for the time that was stolen from him.

The prosecutors in this case are not to be honored as heroes. They were only doing what should have been done 16 years ago. There is no honor in that.

See also:

"Anthony Graves: Innocent and free 16 years after unfounded death sentence" Grits for Breakfast, Oct. 27, 2010

"Innocence lost" Texas Monthly, October 2010

On Cowboys and DUI's

Once again a Cowboy makes the headlines for running afoul of the law. This time, however, it's one of them Cowboys from up in Stillwater.

Justin Blackmon, a 20-year old wide receiver for Oklahoma State, was arrested Monday night for driving under the influence (DUI) in Dallas after Monday Night Football. Of course, if you're a Dallas fan, heavy drinking is about the only way to handle one of their games.

When Mr. Blackmon was stopped for speeding, the officer administered a series of roadside coordination exercises. Presumably this was after he smelled alcohol on Mr. Blackmon's breath. Even though Mr. Blackmon "passed" the exercises he was still arrested for DUI because (1) he was under the age of 21 and (2) he had a detectable amount of alcohol in his body.

There is no allegation that Mr. Blackmon was intoxicated or otherwise impaired. The only allegation is that he consumed alcohol and got behind the wheel of a car. Since driving under the influence is a Class C misdemeanor (the equivalent of a traffic ticket), the maximum punishment Mr. Blackmon could face is a $500 and the suspension of his driving privileges for 60 days.

So before anyone gets too up in arms over Mr. Blackmon's arrest, what he allegedly did Monday night in Dallas is nothing worse than most college students do every weekend.

Anatomy of a wasted life

Last week a man was shot and killed in southwest Houston because someone else thought he cut in line at a restaurant. A few minutes' worth of insanity cost two young men their lives.

John Lopez, 27, will spend a significant amount of time behind bars while Travone Ford, 24, is dead. Mr. Lopez' family will have to deal with the burden of having a loved one in prison while Mr. Ford's family will have to deal with the reality that he's never coming back.

The two men got into an argument over who was next in line. They argued with each other and then began shoving each other. Mr. Lopez then thought the best course of action was to go out to his car and get his shotgun. Mr. Ford then thought it would be a good idea to follow Mr. Lopez into the parking lot. Mr. Lopez then apparently fired a shot into the back of Mr. Ford's car as Mr. Ford left the parking lot. That shot killed Mr. Ford.

There were so many points at which either man could have stopped the confrontation and two lives could have been saved. Arguing about whether someone cut in line? Come on, y'all are both adults. Get over it.

Pushing and shoving in the restaurant? Either man could have put a stop to that. But the bigger question is why they started pushing and shoving each other. We're not talking about the lunch line in middle school.

Grabbing a shotgun to decide an argument over who was next in line? Wow, that's using your head. I understand reaching for a weapon if your life, or a loved one's life, is in danger. I understand aiming and firing at an intruder in your house. I will never understand getting a gun, much less firing it at someone, because you think they cut in line.

And why did Mr. Ford follow Mr. Lopez out into the parking lot? Was it a macho thing? Did he feel the need to prove his manhood? Had he just let it go Mr. Ford would likely still be alive today.

We talk about the use of deterrents in the criminal (in)justice system all the time. Prosecutors feel that the sentence needs to be ramped up a bit for each subsequent offense to "teach" the defendant a lesson. Defense attorneys all too often fall into the trap of believing that their clients will "learn their lesson" this time. I've got news for you. Deterrents work for those people who are intelligent enough to weigh the costs and benefits of certain behavior. If you can't make that calculation, then no deterrent will save you.

Because neither man understood the calculus of deterrents, two lives were wasted.

Sometimes it just isn't enough

I had a client who was accused of assaulting a neighbor down in Galveston County. It was a simple assault by contact - no more serious than a traffic offense - but to my client it was the worst thing that had ever happened.

I explained to her that it would take a few months for the case to be set for trial. She was very upset about having to wait. I told her, like I tell most of my clients, not to worry about it because all the worrying in the world won't change what happened or what's going to happen. I told her the only thing that worrying would do is give her an ulcer.

But worry she did. For months.

She wanted to have her name cleared. I told her she just wanted to be acquitted.

On the day of trial we met at the municipal courthouse and waited for the docket to be called. Then the city attorney called out the witnesses. He didn't call out the name of the complaining witness. I asked my client is she saw the complaining witness and she said she didn't.

Five minutes later the case was dismissed.

Unfortunately that wasn't enough for my client. She was still upset. She told the bailiff that "that wasn't justice." The bailiff just kind of looked at me with a puzzled look on her face. My client was still upset about the length of time it took to get to trial, the money she had spent and the sleepless nights she'd suffered through. Had you seen her you would've thought she'd been found guilty.

I really wanted her to be happy. I understood where she was coming from, though. She didn't get what she wanted, but we got what we came for.

Who really represents the people?

I was watching the British version of Law & Order the other night on BBCAmerica and realize there was something terribly wrong with the open of the show.

"In the criminal justice system the people are represented by two separate yet equally important groups: the police who investigate crime and the Crown Prosecutors/district attorneys who prosecute the offenders."

The police and the prosecutors represent the state, an artificial construct used to instill order on society. The agents of the state routinely ignore the prohibitions of the Bill of Rights in the name of enforcing order. The police have made a mockery out of the Fourth Amendment and, on a daily basis, prosecutors argue that the Constitution doesn't mean what it says when it stands in the way of a conviction.

The people are represented not by the police or by the prosecutors, but by the criminal defense bar. Criminal defense attorneys stand beside those no else will and defend the Constitution and the Bill of Rights.

It is hardly in the "people's" interest for the police to be able to enter their homes or cars at will and conduct witch hunts. It is hardly in the "people's" interest to deny one the right to confront his accusers face-to-face. It is hardly in the "people's" interest to allow junk science into the courtrooms. It is hardly in the "people's" interest to allow courts to shift the burden of proof from the state to the accused.

It's not always popular to stand beside the accused and to fight for him or her, but those men and women who choose to do so are freedom's last defenders.

Stay in school... or else!

My daughter brought home a letter from Harris County District Attorney Pat Lykos this week regarding Harris County's Stay in School Program. The letter began extolling the benefits of staying in school and getting your education but then evolved into a threat of criminal prosecution.

"Under Texas law, unexcused absences are a criminal offense, and both parents and students can be charged."

That's exactly what we need, more excuses to drag folks through the criminal justice system. Handing truancy matters to the courts is yet another example of schools abdicating their responsibilities. Get into a fight at school -- get cited and go to court. Disrupt class -- get cited and go to court.

"If...your child continues to incur additional unexcused absences, the school will file a case in a Justice of the Peace court, where you and your child must appear in response to the charges."

There's your solution to kids not showing up at school -- send them to the courthouse during school hours. Would that at least count as an excused absence?

"If your child deviates from the terms of the program, then additional conditions will be added... Non-compliance will ultimately lead to charges being filed against your child in a Harris County Juvenile District Court."

We need to get these kids processed through the system early so we don't have to waste time down the road should they be arrested for anything. The sheer number of people in this country who are in custody or under court supervision is simply astounding -- let's add some more to the tally.

And, of course, here's the kicker:

"Each parent is also subject to very large fines."

That's it -- it's a money grab.

State changes course on driver surcharges

The Texas Department of Public Safety has finally come to the conclusion that hitting motorists with surcharge after surcharge is not working. The Public Safety Board has decided to implement a plan by which those with incomes less than 125% of the poverty level who are in default will have their surcharges reduced to 10% of what's owed up to $250. Once arrangements are made for payment the license suspensions will be lifted and the motorists will not be in danger of picking up additional surcharges and suspensions for driving on an invalid license.

Of course the program doesn't apply to motorists who have been paying their surcharges, nor does it apply to anyone making more than 125% of the federal poverty line (approximately $27,562 for a family of four).

The real solution to the mess is to rescind the Driver Responsibility Program altogether so that motorists don't fall into an endless cycle of surcharges and suspensions.

Death of an innocent

"I don't care how many degrees you may have. How many books you may have written. This was a set fire." -- Douglass Fogg, Assistant Fire Chief (Corsicana, Texas)

This blythe acceptance of junk science is the very reason there need to be strong standards and guidelines in forensic science. There is far too much "science" that can't be tested that is being used in courtrooms across this state, and across this country, to convict people of crimes they may or may not have committed.

In Corsicana, Texas, it was used to convict Cameron Todd Willingham, who was executed by the State of Texas for a crime he very likely didn't commit. The Fair-Haired One had the opportunity to stay the execution so that new evidence could be reviewed - but, bowing to political pressure, he declined. Gov. Rick Perry's legacy will be that he authorized the killing of an innocent man.



When you go to your doctor, you want to know that he has been trained, that he has a medical degree and that he keeps up with the latest developments in his field. Would you trust your health to someone who just had a "gut feeling" about what was wrong with you?

Click here for more information about Frontline's presentation of "Death by Fire."

Big Brother wants your DNA

"All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at the person's trial." -- Language in Harris County pattern criminal jury charge

No, the state should not be allowed to take a DNA sample from any person arrested for a criminal offense. The citizen accused is presumed to be innocent and if the state wishes to take a DNA sample, let them get a warrant and show probable cause.

Los federales and 20 states, including Louisiana, have enacted legislation mandating that DNA samples be taken from all persons arrested. Crime victims, law enforcement and investigators in Texas are pushing for similar legislation in the Lone Star State. The same folks who argue that the smaller the government, the better are pushing to expand the power of Big Brother to keep his thumb on you.

Everyday across this state men and women are released from the holds of the criminal (in)justice system via acquittal or dismissal. Those folks did nothing wrong, according to the law, yet there are those who are screaming that the state should have a sample of DNA to include in its database.

"...[O]ur courts upheld the law. Public safety trumped privacy rights." -- Pete Marone, head of Virginia's department of forensic science.

That statement alone should be enough to frighten the bejeebers out of anyone concerned about the Fourth Amendment. Our right to be free from unreasonable searches should not be subject to a balancing test between the interests of the state and the interests of the individual. Freedom is the essence of America and that means that sometimes the bad guy gets away. It's an unseemly reality; but put me on the side of allowing the guilty to go free rather than locking away one innocent man.

State Rep. Allen Vaught (D-Dallas) is an advocate of casting a wider net when it comes to procuring DNA samples from those charged with criminal offenses. When asked why Big Brother doesn't take more samples of arrestees he said it came down cost. That's right, folks, the only thing standing between the government and your right to privacy is the almighty dollar.

DNA databases, GPS monitoring devices and backdoor access to encrypted electronic communications are tools by which the government seeks to keep track of where you are, who you talk to and where you've been. They are tools by which the government seeks to do away with the legal presumption of innocence. After all, if you know where a person's been, who they've talked to and what they've talked about, there are no secrets left.

Muscling in at the polls

Voters in several minority precincts in Harris County have complained of being harassed while trying to cast their votes in early voting. The County Attorney's Office received 14 complaints on the first day of early voting for the November 2 general election.

The complaints came from Kashmere Gardens, Moody Park, Sunnyside and other predominantly minority neighborhoods. The complaints included poll watchers "hovering over" voters, "getting into election workers' faces" and blocking or disrupting lines of voters waiting to cast their ballots. -- Terry O'Rourke, First Assistant Harris County Attorney

True the Vote, a group associated with the Tea Party and going by the moniker King Street Patriots, promised before the election that they would be on hand to challenge check voters' credentials at the polls. While the attorney for the King Street Patriots denies the members are poll watchers, he doesn't deny the group was out at the polls carrying out their threat promise.

The right to vote is precious and shouldn't be taken lightly - and neither should the efforts of those attempting to prevent citizens from exercising their civic duty.

See also:
"Voter intimidation complaints get second look," KTRK-13 (Oct. 19, 2010)

Fun with numbers, Galveston County style

Jack Roady, a prosecutor with the Harris County District Attorney's Office, is aiming to be Galveston County's new District Attorney. In his latest broadside against incumbent D.A. Kurt Sistrunk, Mr. Roady makes some very interesting claims about the way criminal matters are handled down on the island.

According to Mr. Roady, over the past four years, the Galveston County DA's Office dismissed half of all misdemeanor prosecutions and one-third of all felony prosecutions. Of course Mr. Roady doesn't provide any information on how many of those cases were dismissed as a result of pleas on other cases. How many of those misdemeanor cases were driving on a suspended license or passing a bad check that were dismissed after the accused took care of the problem after the first setting? How many of those felony cases were dismissed after a grand jury no-billed the accused?

I'm not going to sit here and tell you that Mr. Sistrunk is the greatest thing to happen to Galveston since the introduction of air conditioning (and since my clients' interests are diametrically opposed to his), but numbers served up without context have no meaning. If a case should be dismissed, then it should be dismissed. I would like to think it's through the hard work of my colleagues on the island that residents of Galveston County are able to walk away with a clean record.

Mr. Roady also points out that prosecutors on the island secured convictions in only 4% of all misdemeanor jury trials. On the surface that number sounds a bit astounding. I might buy it if we were talking about only 4% of misdemeanor prosecutions ended in juries issuing guilty verdicts. Nonetheless, the "problem" may have more to do with the jury pools and facts of the individual cases than with the DA's office.

However, according to the Texas Office of Court Administration, on January 1, 2009, there were 6,859 criminal cases pending in the Galveston County Courts at Law. During the course of 2009 there were 10,008 new criminal cases filed and 1,505 other cases added to the dockets. The courts reported 6,012 convictions in 2009 and only 15 acquittals. The statistics do not differentiate between a plea or a guilty verdict. There were 5,450 cases dismissed and 1,330 cases disposed in some other manner (deferred adjudication, for instance).

In 2008, there were 8,960 criminal cases pending on January 1. During the course of the year there were 10,269 new cases filed and 1,570 others added to the dockets. There were 5,415 convictions and only 9 acquittals. A total of 6,629 cases were dismissed and 1,619 were disposed of in some other manner.

Thus far in 2010, the numbers look like this. On January 1, 2010 there were 5,398 pending criminal cases. Between January 1 and September 30, the DA filed 5,913 new cases and another 958 were added to the dockets. So far this year 3,143 cases have resulted in convictions with only 3 acquittals. A total of 2,841 cases were dismissed and 819 were disposed of in some other manner.

So, while Mr. Roady's figures as to dismissals seem to be fairly accurate, his assertion that prosecutors on the island have only secured convictions in 4% of their misdemeanor jury trials is, quite simply, not true.

The execution of an innocent?

Tonight PBS' documentary series Frontline takes a look at the controversy surrounding the conviction and execution of Cameron Todd Willingham. Williamson County District Attorney John Bradley has done his best over the past year to prevent the Texas Forensic Science Commission from investigating whether or not junk science led to the execution of an innocent man.

Did Texas execute an innocent man? Several controversial death penalty cases are currently under examination in Texas and in other states, but it's the 2004 execution of Cameron Todd Willingham --convicted for the arson deaths of his three young children -- that's now at the center of the national debate. With unique access to those closest to the case, FRONTLINE examines the Willingham conviction in light of new science that raises doubts about whether the fire at the center of the case was really arson at all. The film meticulously examines the evidence used to convict Willingham, provides an in-depth portrait of those most impacted by the case and explores the explosive implications of a possibly innocent man.

 Frontline airs on Houston's KUHT (Channel 8) at 9pm.

The eyes have it

According to the 9th U.S. Circuit Court of Appeals, it is not unreasonable for the police to place a GPS tracking device on your car without a warrant. Holding that there was no difference between monitoring the whereabouts of a car via computer and using stake-outs and "tails," the Court had no problem with the devices.

"By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives." -- Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals

For those of you who don't think it's that big of a deal for the cops to place a tracking device on your car, how would you feel if someone were tracking your every movement? Every time you went to the grocery store, the liquor store, the bookstore, a restaurant or bar, or to meet with your significant other. And all of this with no evidence that you ever committed a crime.

The argument that it's more cost-effective to install a GPS device on a car than to assign a surveillance team should never trump the 4th Amendment's prohibition on unreasonable search and seizure. The question should never be what is most efficient for the government. The question should be what best protects an individual's right to be free from Big Brother's roving eye.

How much government intrusion is okay? At what point does it become obtrusive? What about implanting tracking devices in people and following their every movement?

Over on the other side of the country, the D.C. Court of Appeals found that the continuous use of a GPS device without a warrant did constitute an unreasonable search.

See also:

"Appeals court OKs warrantless GPS tracking by feds," Reuters (8/27/2010)

Mama said knock you out

Montgomery County DA Brett Ligon is on the warpath against State District Judge Cara Wood because he  thinks the judge handed out a light sentence to a man who plead guilty to aggravated robbery, aggravated assault and evading charges.

The sentence of which Mr. Ligon complains? Twenty years for the assault, 15 years on the robbery and two years on the evading charge. Under the parole rules drawn up by the Texas Department of Criminal Justice, the defendant will be eligible for parole in about 9 1/2 years.

When a jury is asked to sentence a defendant who has been convicted, the jury is not told how much time a person is likely to do based on parole guidelines. In fact, it is none of the jury's concern. The fact that Judge Wood has a good idea how much time one is likely to do in prison likewise shouldn't play any role in her determination of what sentence to mete out. If Mr. Ligon is unhappy, take it up with the parole board or TDCJ.

The defendant in this case plead to the court without a recommendation. Why would an attorney advise his client to plead guilty in a case without knowing what the sentence would be? Most likely because he had reason to believe that the judge was going to hand down a lighter sentence than the prosecutor was offering. Maybe Mr. Ligon needs to take a look in the mirror if he needs someone to blame.

Looking beyond the headline

On the surface, the Environmental Protection Agency's decision to allow higher concentrations (15%) of ethanol in gasoline sounds like a good move to halt the production of greenhouse gases. However, in reality, the costs of going forward will exceed the benefits.

The ethanol we mix with gasoline is a corn-based alcohol with a higher octane rating than conventional gasoline. The ethanol burns cleaner than the gasoline, reducing a car's exhaust emissions. However, the ethanol/gasoline blend you fill up with at the gas pump produces less energy than gasoline alone which means your fuel mileage will decrease. The 85/15 gasoline/ethanol blend will reduce fuel efficiency by approximately 25%.

The gasoline/ethanol blend costs the same as regular gasoline which means the cost of operating your car is higher due to the decreased fuel economy.

Then there's the cost, both economic and environmental, of producing ethanol. As ethanol is produced from corn, there is an increased demand for corn (and other feed grains), this, in turn, pushes feed prices higher which, in turn, pushes the price you pay for beef, pork or chicken higher. As more farmers try to squeeze higher yields from their cornfields, the demand for fertilizers increases. This pushes the cost of production higher. It also means that more petroleum products are used to produce fertilizer and that the amount of fertilizer run-off is increased. Since ethanol cannot be shipped through pipelines it has to be trucked to the refineries. Thus more diesel fuel is burned in transporting ethanol over the road - increasing the amount of diesel exhaust emissions.

Ethanol also costs far more to produce than an equivalent amount of gasoline. According to the US Department of Agriculture, the variable costs of producing a gallon of ethanol are $.96 while the capital costs are about $1.57 a gallon. So, while the average price for a gallon of gasoline in the US is $2.81, the average cost to produce a gallon of ethanol is $2.53! In order to make the product affordable, the federal government offers subsidies of between $1.05 and $1.38 a gallon.

Now I'm all for increasing fuel efficiency in cars and finding ways to reduce our use of natural resources, but increasing the amount of ethanol in gasoline is not the way to do it. This decision has less to do with conservation and more to do with income transfer and politics.

My point is not to accept at face value the story you're being told. Look behind the story. Look to the facts. Let the prosecutor tell his story -- then give the jury the opportunity to see behind the story. What didn't the prosecutor say? Why didn't he mention it? Let the jury come to its own conclusion.

Finding out where you're at

In poker you're generally better off if you're doing the betting rather than calling a bet.

The logic goes something like this. If you think you've got a good hand you want to "find out where you're at." The way to do that is to bet out or to raise. If you're raised you can assume your opponent thinks he has a strong hand. If you get called you can assume your opponent has a drawing hand or a middling pair. Your bet or raise can also serve to thin out the herd leaving fewer people to draw out against you.

The coin of the realm at the poker table is the colorful disk of clay in front of you. The currency, however, is information.

If you just check and call you're not getting any information at all about where you stand. If you check, what are you going to do when your opponent bets out? You won't have any way of figuring out what range of hands your opponent is holding.

To win at the poker table you have to be aggressive - not reckless, mind you, but you have to bet or raise when you think you have the best hand. Maybe assertive is a better descriptor.

You also have to be assertive in the courtroom. Force the prosecutor to show his hand. Push the envelope when it comes to discovery motions and suppression issues. You need to know where you stand before you address that panel in voir dire. 

Unless you've got a monster hand, laying behind the log can be a dangerous play.

Thin slicing and jury selection

Chocolate covered bacon.


Grilled cow's brains.


Cockroaches.

Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.

But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.

Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.

I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.

When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.

That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.

See also:

"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009

Presumed intoxicated

According to the Texas Court of Criminal Appeals, the state no longer has a need to prove a "temporal link" between a driver's intoxication and his driving through direct evidence. It is enough to present circumstantial evidence that will allow a jury to make the necessary inference.

In Scillitani v. State, 297 SW3d  498 (Tex.App.--Houston [14th Dist.] 2009, rev'd in Scillitani v. State, No. PD 0069-10, June 30, 2010), the appellate court reversed a DWI conviction out of Fort Bend County on the grounds that there was no direct evidence to support the state's contention that the defendant was operating a motor vehicle while intoxicated. In Scillitani, a trooper came across a single car accident and found Mr. Scillitani, who admitted to driving, at the scene. The trooper administered roadside coordination exercises and decided that Mr. Scillitani was intoxicated. The trooper's opinion was bolstered when a preliminary breath test showed the driver to have an alcohol concentration in excess of the legal limit. The state did not present any evidence, however, to show when Mr. Scillitani drove the vehicle or how much time elapsed between the accident and the time the officer arrived.

The appellate court noted that:

[a]lthough this evidence supports a finding that appellant was intoxicated at the accident scene upon Trooper Hackney's arrival, neither this evidence nor any evidence introduced at trial constitutes independent evidence of (1) how recently the vehicle was driven or (2) how much time elapsed between the accident and Trooper Hackney's arrival. 

Mr. Scillitani's victory was short-lived, however, as the Court of Criminal Appeals held in Kuciemba v. State, 310 SW3d 460 (Tex.Crim.App. 2010), that "[b]eing intoxicated at the scene of an accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident, and the inference of intoxication is even stronger when the accident is a one-car collision with an inanimate object."

In his dissent, Judge Lawrence Myers notes that the evidence cited by the Court in determining that the evidence was sufficient to link Mr. Kuciemba's intoxication to his driving, was sufficient only in showing that Mr. Kuciemba was not driving his car in a safe manner. He pointed out that the state never offered any evidence to establish the time of the accident nor the time gap between the accident and the arrival of the officer.

The problem with the Court's decision is they are asking a jury to presume that if a motorist is intoxicated at the scene of a one-car accident then it stands to reason the motorist was intoxicated while driving his car - when the only presumption that a juror is able to make is that the defendant is innocent. The Court's logic also fails to take into account that a driver could still be in the absorption phase when the accident occurred or that the driver could have imbibed the spirits after the accident.

In its rush to overturn a case that might make it harder for the state to convict a motorist of driving while intoxicated, the Court neglected to note that the officer could have worked his way out of a jam by noting whether the engine was warm or by asking Mr. Kuciemba when the accident occurred. The duty of the Court is to ensure that the rights of the citizenry are protected, not bailing out the cops.

A much needed respite

Last week was a rough one. After being in trial on Monday I was in a funk most of the rest of the week. Things began to pick up a bit on Thursday night leading my hearty band of 3, 4 and 5 year olds through practice. Prepping the fields on Friday night served as a calm reflective meditation on the week.

Then Saturday morning arrive - Game Day! My kids played hard, hustled and put in another great performance for the parents and grandparents in attendance. Yesterday I put in about 13 miles on the road.

It's all too easy to get burned out in this, or any other profession. There are times you just have to step away from it and enjoy life for what it is - a collection of snapshots that creates a story. I feel much better now.

How many prosecutors does it take to... ?

A table full of "volunteer" prosecutors in the City of Houston Municipal Court. That's right, an entire army of prosecutors in traffic court.

Focusing on symbols

A Lee County (MS) judge jailed Oxford (MS) attorney Danny Lampley when Mr. Lampley declined to recite the Pledge of Allegiance. Nevermind that Mr. Lampley stood during the pledge and made no effort to draw attention to himself.

What's next in northern Mississippi, loyalty oaths?

As attorneys we have pledged to uphold the laws of the land and to defend the Constitutions of our states and our country. To jail anyone because they don't recite the Pledge of Allegiance is absurd.

I don't pledge my allegiance to a flag. In the courtroom I will fight tooth and nail for what few protections remain for the accused. A flag is merely a symbol. When we start to venerate symbols instead of what's behind the symbol, then we lose perspective. When we lose sight of what the flag stands for then it's that much easier to take away our protections against the mighty power of the state.

You can burn or otherwise destroy a symbol, but that doesn't affect what stands behind that symbol. Through our neglect and nonchalance, however, we can allow the Constitution to erode and become nothing more than words on paper.

Violations of the Fourth and Fifth and Sixth Amendments are not mere technicalities that allow criminals to go free - they are assaults on our civil liberties and should not be tolerated. If we just sit on our hands and do nothing then one day we will wake up and wonder where our freedoms went. Our reasonable expectation of privacy is vanishing rapidly because we have allowed the government to poke its head into our private business in the name of national security. Next up for los federales - back doors to encrypted data sent via cell phone or internet.

To all my brothers and sisters who fight for the protections enshrined in the Bill of Rights no matter the odds and no matter how hard the fight, I thank you. What we do on a daily basis is so much more important than reciting a pledge.

Austin police chief wants new DWI charge

Art Acevedo, the police chief in Austin, Texas, has gone on the record in favor of creating a new DWI offense in Texas. Mr. Acevedo would like to add the offense of driving while ability impaired (DWAI) for motorists who are below the legal limit.

In Mr. Acevedo's world, any driver with an alcohol concentration of greater than .05 but less than .08 would be charged with the new offense. I guess that would do away with that pesky little matter of a driver blowing under the limit - and a jury wondering why he's on trial.

No one has proposed what category misdemeanor the new offense would be. My guess is it would be a Class C misdemeanor - the equivalent of a traffic ticket. It would make no sense to create a new Class B drunk driving offense. Would DWAI become the new "reduced charge" for those accused of DWI?

The proposed offense makes no sense on an intellectual level. If a motorist is stopped and the officer suspects he is intoxicated, the officer will administer roadside coordination exercises. If the motorist "fails" those exercises, he would be arrested for DWI and asked to blow into the breath test machine. At what point would an officer decide to arrest for DWAI? According to the NHTSA Manual, the roadside coordination exercises are designed to detect drivers with an alcohol concentration of .08 or higher; does this mean that officers will arrest drivers who "pass" the roadside exercises? If the person "fails" the roadside exercises an officer could not arrest for DWAI, because that person would have lost the normal use of their mental or physical faculties according to NHTSA - at that point it wouldn't matter what the driver's alcohol concentration was.

And, where's the scientific evidence that a motorist's faculties are impaired to the point of being a danger at an alcohol concentration of .05? There are people driving completely sober that are a hazard on the road.

The addition of a new DWI offense will do nothing more than pull more people into the reaches of the criminal (in)justice system.

More jury analysis

Back in August I posted this article evaluating the attitudes of a jury pool in a case regarding the alleged violation of a municipal ordinance. I said the scaled questions we used were meant to determine where the jurors fell on the continuum between egalitarianism and totalitarianism. After thinking about it for a while, I don't think that's the right matrix for this analysis. I think the correct way to look at these results are on a continuum between defense-oriented and state-oriented.

This past Monday we finished trying a case that had been continued for almost three weeks because witnesses had not complied with subpoenas requesting documents related to the case.

During voir dire I asked the following five scaled questions in order to determine whether a juror was more defense-oriented or state-oriented:

1. How would you rate your feelings about whether the defendant, as he sits up here today, is guilty?

2. How would you rate the weight you'd give the testimony of a person wearing a badge, without regard to training, but solely out of respect for the badge?

3. This Court will instruct you that the State has the entire burden of proof in this case. How would you feel in the defendant didn't testify?

4. Do you agree that it is better that ten guilty men go free than that one innocent man suffer?

5. Do you agree that in the long run, order is more important that liberty?

As an aside, I never used the term "defendant" at trial. I always referred to my client by his given name.

Each of these questions were to be answered on a scale of 0-10, with 0 being very defense-oriented and 10 being very state-oriented.

As a whole, the panel averaged a 1.6 on Question No. 1; a 1.9 on Question No. 2; a 2.9 on Question No. 3; a 4.8 on Question No. 4 and a 5.5 on Question No. 5. The overall average was 3.3.

The prosecutor struck four jurors for cause. Those jurors averaged a 5 on Question No. 1; a 1.5 on Question No. 2; a 4.8 on Question No. 3; a 5 on Question No. 4 and a 6.3 on Question No. 5. The overall average was 4.5.

The prosecutor used two peremptory strikes. Those jurors averaged a 0 on Question No. 1; a 1.5 on Question No. 2; a 2 on Question No. 3; and 6.5 on Question No. 4 and a 3 on Question No. 5. The overall average was 2.6.

We struck nine jurors for cause. Those jurors averaged a 1.7 on Question No. 1; a 3.1 on Question No. 2; a 3.9 on Question No. 3; a 5.2 on Question No. 4 and a 6 on Question No. 5. Most of the jurors we struck were struck because of their answers to Question Nos. 1 and 2. The overall average was 3.9.

We used three peremptory strikes. Those jurors averaged a 0 on Question No. 1; a .3 on Question No. 2; a .3 on Question No. 3; a 5 on Question No. 4 and a 7.7 on Question No. 5. The overall average 2 was 2.7.

The six jurors remaining averaged a .7 on Question No. 1; a 1.2 on Question No. 2; a 1.8 on Question No. 3; a 3.3 on Question No. 4 and a 4.2 on Question No. 5. The overall average for the panel was 2.2.

The panel was made up of three white males, one black male, one black female and one Hispanic female.

Although we had what appeared to be a very defense-oriented panel, we did not receive a favorable verdict. Whether we were hurt by a faulty methodology, bad analysis, the facts of the case or the nearly three weeks off during the middle of the trial, I don't know.

I do know that our use of the scaled questions allowed us to strike nine jurors for cause and gave us a tool to use when trying to decide on whom to use our peremptories. This method also gives us the opportunity to get feedback from the entire panel so that we aren't stuck with someone who kept their mouth shut during voir dire.

Standing up and fighting

"All persons are presumed be be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives no rise to inference of guilt at his trial."  -- Texas Penal Code Section 2.01

"No person shall be...deprived of life, liberty, or property, without due process of law..." -- 5th Amendment to the U.S. Constitution

"No citizen of this state shall be deprived of life, liberty, property, privileges or immunities...except by the due course of law of the land." -- Texas Constitution, Art. 1, Sec. 19

"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 innocence or guilt of this defendant." - Standard jury charge, Harris County Criminal Court at Law No. 13

"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." -- Standard jury charge, Harris County Criminal Court at Law No. 13

This is not the first time I've addressed this issue, and I'm sure it won't be the last time, either.

The jury charge used in Harris County is just plain wrong and unconstitutional. It is not the duty of the jury to determine whether a defendant is innocent or not. It is the duty of the jury to determine whether the prosecution has proven all elements of its case beyond all reasonable doubt.

In telling a jury it is to decide whether a defendant is innocent or guilty, the court is placing a burden on the defendant to prove his innocence - an unconstitutional shifting of the burden of proof. How can one prove his innocence? How does one prove a negative? It's impossible.

The use of this charge makes a mockery out of the presumption of innocence and the right to remain silent. If one is presumed innocent, then the only matter for the jury to determine is whether the state has proven otherwise.

I was nearly thrown in jail on a contempt charge on Monday when I objected to this very language. I objected outside the presence of the jury and presented a proposed charge that said the duty of the jury was to determine whether the state had proved each and every element of its case beyond all reasonable doubt. (As an aside, since Judge Atkinson resigned his post as of September 30, a visiting judge was appointed to sit on the bench until the election.)

The judge, without concern for the constitutional rights of my client, overruled my objections and rejected my proposed language and proceeded to read the charge, as is, to the jury. When I objected to that language as the judge read the charge, he threatened me with contempt if I interrupted him again. My co-counsel then quickly drafted a motion for a personal bond while he waited to see if I would rise to object yet again.

Read the court's proposed charge. Draft your own proposed charge. Object like hell if the language shifts the burden of proof to your client. Change never occurs because someone sat down politely and didn't raise his voice. Change happens when men and women of conscience stand up and fight for their cause.

Tea time

Kate Shellnut, a blogger on religious issues, for the Houston Chronicle gives us a capsule of who makes up the Tea Party:

According to research conducted by Public Religion Research Institute members of the Tea Party movement tend to be non-Hispanic whites who support Sarah Palin and rely on Fox News Channel for news on politics and current events.


According to the survey, 80% of members of the Tea Party movement identify themselves as Christians and 57% consider themselves to be conservative Christians. Members tend far more toward social conservatism than to libertarianism and three-quarters identify or support the Republican party. About 11% of the adult population identifies as a member of the Tea Party movement.

The survey cast aside conventional beliefs that the Tea Party movement was as large as the "old" Christian right, that the Tea Party was an independent political movement and that its members were champions of personal freedom and liberty.

Giving up the fight

If you want to win, you have to play like it. You have to make bold decisions when the game is on the line. Handling criminal matters is the same. If you want your client to walk away without a blemish, you have to be willing to push a case to trial.

On Saturday at the Cotton Bowl, Texas coach Mack Brown waved the white flag with two minutes left in the 105th installment of the Red River Shootout. The Longhorns spent the day chasing after Oklahoma with little success but still found themselves down by 11 with two minutes remaining and the ball at the three yard-line. It was fourth and goal. Texas needed two scores - a touchdown (with a two-point conversion) and a field goal to tie it up.

I was in a state of disbelief when the offense walked off the field and the kicking unit ran out. Sure, the field goal was a pretty sure bet and then it would only take a onside kick, a recovery and a touchdown drive to tie it up. But Mack Brown got it wrong. The odds favored going for the touchdown. It's a much safer bet to score a touchdown from the three than to have to recover an onside kick and drive the ball (and don't forget how putrid the Longhorn offense has been this year).

When Mack Brown sent out the kicking unit he was giving up on the game. Instead of fighting, he was pleading out.

For the most part, if a client pleads to a case, that client will walk out of the courthouse with a conviction (the exception being those who plead to deferred adjudication). That's not to say that there are many times when a plea is the appropriate resolution to a case. We may consider such a result to be a victory because the charge was reduced or the penalty was lowered; but the fact remains that the client was convicted.

The only way your client will hear a jury return a not guilty verdict is to try the case. The only way to get the case dismissed is to investigate it and push the prosecutor. Waving the white flag when things get tough won't get you anywhere.

A little Galveston Goth

St. Patrick Catholic Church in Galveston, built in 1877. According to the historical marker out front, after the great hurricane of 1900, the US Army Corps of Engineers ordered buildings to be raised. The church was lifted and placed atop a new five foot high foundation.

Why St. Patrick, you ask? The congregation on the west end of the island was predominately Irish, that's why.

This example of Gothic architecture is Grace Episcopal Church. The building was dedicated in 1895 and it, too, survived the 1900 hurricane.

Island grub

I spent a good deal of time down on the island this week as I had a couple of settings on Tuesday plus a client on the afternoon jail docket. Since I was down on the island for lunch I thought I'd try someplace new. When I left the jail I asked an attorney I knew what he recommended. His reply? Leo's.

I was game - especially when I looked it up on my phone and saw they served Cajun food. The day was looking good.

Now Leo's (on 32nd and Broadway) is fairly nondescript inside - it looks like an ordinary lunch room. I ordered a big bowl of jambalaya and three boudin balls along with a sweet tea. Not wanting to waste any more of a beautiful day inside, I sat outside on the side patio.

I took a bit of the jambalaya and couldn't help but notice the intense smokiness of the dish. It wasn't big on heat or spice but it had a good flavor. I knew they didn't use andouille sausage but I figured whatever they used was smoked on the smoker in the back of the parking lot. While the jambalaya was tasty, the boudin balls left a little bit to be desired (the best I've ever had came from Ragin' Cajun on Richmond Avenue).

When I went inside to get a refill of tea I asked the guy behind the counter what kind of sausage they used. He told me they used a beef sausage. I then asked him if they made it or just smoked it. It turns out that Leo's makes their own sausage.

It wasn't the best meal I've ever had but it was good and it was affordable and I'll be back.