More vampire propaganda

Here's a clip of a story NBC ran on the Today Show about states implementing no refusal weekends. The story focused on Houston and Montgomery County.

Visit msnbc.com for breaking news, world news, and news about the economy

Once again we have the spectacle of the federal government pressuring states to implement no refusal policies to combat the scourge of drunk driving. We are treated to the sight of an officer swearing to a search warrant application before a judge -- they don't show us officers faxing "sworn" statements to judges sitting at the fax machine in their homes. The story doesn't mention that the judges who blindly sign these warrants volunteer to do so -- where's the hue and cry for neutral and detached magistrates?

We also see a nurse on location at a police station preparing to draw blood from a motorist suspected of DWI. What about the requirement that the specimen be taken in a sterile location?

We're told that about half the motorists arrested for DWI in Texas refuse to blow into the state's breath test machine. We're told it's because they don't want to give the state any more evidence. We're told that's a bad thing.

Please explain to me how exercising a constitutional right is a bad thing? Young men and women are sent overseas for the alleged purpose of "fighting for democracy," yet our own government pressures local jurisdictions to trample on the constitutional rights of the citizenry.

Nowhere in this piece do we hear about the motorist wrongly arrested for drunk driving who had to undergo a forced blood draw and the stress of fighting a case. Nowhere do we hear about the times officers made mistakes and arrested someone who wasn't intoxicated.

Have a safe and happy New Year's celebration and remember that the best way to avoid being arrested for driving while intoxicated this weekend is not to drive if you've been drinking.

What year is it?

The more things change, the more things stay the same.

What I would change about HB 189

Today Grits for Breakfast asked what changes I would like to see in HB 189. Here goes.

I support the idea of making deferred adjudication an option for motorists charged with driving while intoxicated. While I don't think deferred is the greatest thing since sliced bread, in some cases it may be the best way to resolve a case.

My main problem with HB 189 is that a person who successfully completes his deferred probation is not eligible for an order of nondisclosure - leaving his arrest for DWI out there for all to see. The other offenses that are not eligible for nondisclosure are crimes of violence; for the most part those charged with drunk driving did nothing worse than commit a minor traffic offense such as speeding.

It's not like a nondisclosure order will prevent the police or the courts from discovering a prior DWI arrest -- law enforcement agencies have access to records under a nondisclosure order. Maybe the arresting officer won't know about the prior DWI arrest at the time of the traffic stop, but that information will be available to prosecutors.

The carrots in a deferred are the dismissal and nondisclosure. Since we're talking about a crime that's just one step removed from a traffic ticket, I think nondisclosure should be available.

I would also like to see the bill address the issue of how motorists who hold commercial driver's licenses will be affected. If we are allowing the deferred to count as a conviction for enhancement purposes, what effect will they have on a CDL? Will the DPS take advantage of that provision and impose surcharges for drivers who take deferred adjudication in a DWI case?

I would like to see language to the effect that there will be no civil penalties imposed by the DPS for any motorist who takes deferred probation in a DWI case. That means no surcharge, no license suspension and no disqualification from driving a commercial vehicle. If you want to disqualify CDL holders if they were arrested for DWI while driving a commercial vehicle, that's fine.

I also think the requirement that a motorist on deferred probation install an ignition interlock may be overkill. However, since judges routinely require an interlock as a condition of granting an occupational license, I can live with that. I do think, though, that it should be up to the judge whether the device should be required. One size fits all solutions from Austin rarely work as planned.

In short, while I am opposed to HB 189 as written, I do think it's a step in the right direction.

My phone the scanner

I discovered a nifty app for my droid last week - Document Scanner by PWN with your Phone. The app allows you to take a picture of a document and convert it to a PDF file that you can store on your phone, e-mail to someone or upload to Google Docs.

There is no limit to the number of pages you can incorporate into a document - and you can add more pages at a later date. The program is easy to use, just a couple of clicks and you've got your PDF file.

I used the app to scan an entire case file the other day and the quality was outstanding. By uploading the PDF file to Google Docs I was able to download it to the hard drive on my desktop and print out the documents later that day.

Document Scanner sells for $3.98 and there is a trial version you can test drive for 15 days at no cost.

A closer look at HB 189

Proponents of HB 189, which would allow for deferred adjudication in DWI cases, are not supporting the bill our of the goodness of their hearts. They aren't supporting the bill because they believe that motorists accused of drunk driving deserve a second chance. They aren't supporting it because they came to the realization that the penalties imposed for DWI in Texas are out of proportion to the seriousness of the offense.

Currently a motorist accused of driving while intoxicated has two choices -- plead the case or take it to trial. In some counties the threat of trying the case is enough to receive an offer of a plea to a "reduced" charge of reckless driving or obstruction of a highway. In Harris County, if you have a clear record and no mental health issues you can enter the DIVERT program - if you can stomach the requirements and believe the promised result.

Due to the sheer volume of DWI cases around the state, prosecutors are doing what they can to reduce trial dockets and this means, in many counties, doing whatever it takes to get that DWI case off the books.

Casting aside, for the moment, the fact that DWI is an opinion crime and that the vast majority of motorists charged with drunk driving did nothing more than commit a minor traffic offense, imposing ridiculously high surcharges and license suspensions all because a motorist failed to signal a lane change and had alcohol on his breath is beyond absurd. Motorists should be given another option to resolve their cases.

The fact is the majority of drunk driving cases are very triable. Generally the worst possible outcome for a first-time offender is a lengthy probation and an ignition interlock device. Absent some very bad facts or intervening circumstances, there's no reason to plead out a case.

While I support the concept of deferred adjudication for motorists accused of DWI, I have qualms with the particulars of HB 189.

As I pointed out yesterday, the proposed legislation would forbid a person from obtaining an order of nondisclosure on a DWI deferred. Quite frankly, that makes the proposal a non-starter from the beginning. The carrot in a deferred is that you can obtain an order of nondisclosure that prevents anyone outside law enforcement and the agencies and entities listed in the statute from seeing information related to the arrest.

The problem is employers, landlords and others treat deferreds the same as convictions. If a person has completed their probation and done everything required of him by the court, he should be able to obtain an order of nondisclosure. Potential employers and landlords don't need to know he was arrested for driving while intoxicated.

HB 189 would also require that an ignition interlock device be placed on the car of anyone on a deferred probation for driving while intoxicated. While I think that is an extreme measure, it is well within the purview of the court to order an ignition interlock device as a condition of probation. This type of a one-size-fits-all plan, however, doesn't always work and isn't always appropriate. Let's be real, people plead to cases for a variety of reasons - and not always because they are guilty.

I don't have a problem with the provision stating that, for enhancement purposes, a deferred on a DWI will be considered a conviction. After all, when a person enters a plea in exchange for a deferred, the judge will state that based on the evidence before the court he finds that there is sufficient evidence to enter a finding of guilt but that he will defer that finding pending the completion of the probation. One concern would be whether a DWI deferred could be used as a conviction to enhance any other misdemeanor.

Another area of concern, raised by a colleague of mine, is what happens to a motorist who holds a commercial driver's license? Will CDL holders be eligible for a deferred on a DWI? Will it matter whether or not they were driving a commercial vehicle or a private car? Will the DPS consider that deferred to be a conviction for the purpose of suspending the motorist's license?

The proposed legislation is not perfect and I would not support it in its current form. I do believe, however, that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted.

See also:

"MADD endorses deferred adjudication for first-offense DWI" Grits for Breakfast (12/28/10)
"Another bad DWI idea in Austin" Defending People (12/27/10)
"Deferred for DWI?" Dallas Criminal Defense Lawyer Blog (12/27/10)
"The DWI deferred conviction - House Bill 189" Dallas Criminal Defense Lawyer Blog (12/27/10)

Bill introduced that would end ban on deferred adjudication for DWI's

A bill has been introduced in the Texas Legislature to allow courts to place motorists accused of driving while intoxicated on deferred adjudication probation - a practice currently barred by statute.

The proposed legislation, HB 189, was authored by State Representative Todd Smith (R-Euless), would make the use of an interlock device mandatory for anyone placed on deferred adjudication for DWI. The bill would also add intoxication offenses to the list of crimes for which nondisclosure is not permitted.

Under the proposed legislation, a deferred adjudication for drunk driving would be counted as a conviction for enhancement purposes.

The bill has the support of MADD, who wants an end to the "masking" of DWI's by "reducing charges" to reckless driving, obstruction of a highway or public intoxication.

"Generally, we do not support deferred adjudication bills, but we are going to support this one. Right now, we are hearing that many cases are not getting prosecuted for DWI but for a bogus charge. We hope the practice of reducing charges will be reduced if this bill does indeed pass." -- Bill Lewis, MADD public policy liaison

According to the article in this morning's Houston Chronicle, when a house committee held a hearing on what to do about DWI's last August, there were over 122,000 cases pending throughout the state. Permitting courts to offer deferred adjudication on drunk driving cases should ease the pressure on prosecutors and courts throughout the state as it would give prosecutors and defense attorneys another tool with which to resolve cases.

It would also ease the financial burden on motorists since there would be no conviction for DWI, there would be no surcharge imposed.

My quibble with Rep. Smith's proposal is barring nondisclosure in DWI cases since law enforcement and state licensing agencies have access to the arrest records of defendants whose cases were disposed of through deferred adjudication.

While I think it unlikely at this juncture that the legislature would pass HB 189, the odd pairing of prosecutors, defense attorneys and MADD may very well be enough to get the proposed legislation before the fair-haired one.

Merry Christmas! Now go back to your family

If you're reading this on Christmas morning, please stop, turn off your computer and spend your day with family, friends and loved ones. I'll still be here.

In the meantime, here is my holiday wish list:

A raise - and more than a little appreciation - for the thousands of dedicated public defenders out there. Y'all are out there defending those who have no one else. Keep up the good fight.

More funds, and more volunteers, for groups such as The Innocence Project who are fighting to exonerate the innocent who remain locked behind bars.

A one-way return trip ticket for all of our servicemen fighting a pointless war in the Middle East. 

Some scotch tape for the Bill of Rights. It's taken a beating over the years and there are plenty of judges and prosecutors who need to read what it says.

Have a happy holiday and remember that best way to avoid a DWI arrest is not to drink and drive.

Making a beeline to Bee County

Beeville, Texas is the county seat of Bee County down in the Valley just south of Goliad. Here's the Goddess of Justice atop the courthouse, illuminated by the morning sun.

The Bee County Courthouse was built in 1912 in the Beaux Arts style. The courthouse sits in the town square alongside US59.

Here's a shot from the front steps looking up. The detail on the Corinthian columns and the pediment is amazing.

Here's a parting shot of the Goddess of Justice atop the clock. Unlike most Goddesses of Liberty, this one is not blindfolded.

Reasonable minds can differ

I've gotten some interesting feedback on my posts regarding Julian Assange and Wikileaks. Many of the commenters disagree with my position on what Mr. Assange has done. And that's fine with me. I want this blog to be a forum - and you can't have meaningful discussion unless someone disagrees with you.

I have long believed that it's entirely possible for two reasonable-minded folks to be polar opposites on a given issue. I also believe that it's entirely possible for those folks to have a well-reasoned debate on the issue. I would hope that the debates are never resolved for it's much more interesting when people don't agree on every issue every day.

Mr. Gregory Boop is an attorney who disagrees with my position on Mr. Assange and Wikileaks and he puts forth a well-reasoned response.

Hey brother, I am in agreement with most of everything you post. And, I deal daily with the complete destruction of 4, 5, 6th, Amendment rights as posited in your blog. But, I wholly disagree on your position on Assange. Imagine your conversations with prosecutors becoming public. Please. Think about: "can we get him/her on intensive probation with AA meetings?" Meanwhile... Client tells you no problem. You are working both sides...in confidence...for your client. With a guarantee of confidentiality. Assange is a hacker/criminal who finds that basic tenant of common/international law to be subject to attack. And his sex crimes were easily answered if he went back and answered... As an aside, when/if our kids need to defend Australia... I hope we all remember where Fox and Assange come from.

I may not agree with his premise and I might think that his analogy is wrong -- but I respect his argument. Mr. Mark Altman is another person who disagrees with me on Mr. Assange (and on other issues) but, he, too, makes a reasonable argument that I can respect.

You guys are missing the damage he has done to diplomacy the world over. Without the ability to communicate behind the scenes without the world finding out about it, diplomacy is ineffective. When you live in a representative democracy it means you don't get to know everything even if you are REALLY curious. You elect people who hire and appoint people, who act on your behalf. 

Given the fact me, my brothers (both biological and in arms), and now my sons, are the ones who have served now since 1985 and will fight the war he pushed us closer to, I hope both those knuckleheads (especially Manning) rot in jail.

I understand where Mr. Altman is coming from. I also respect, but disagree, with his argument about governmental secrecy. Do our elected officials and the people they appoint really act in our best interest? Is it really in our best interest to be sending our young people to die in a war that has no real purpose? What's the end game? How do we even know when it's over?

But then there are people like this who appear to have no capacity for reasoned debate:

So I guess you have no problem with people's lives being placed in danger by some arrogant little prick with some nameless grudge against your own country? Are you so naive as to think that all governments should operate transparently all the time? I guess those Afghans and Iraqis that helped coalition forces are just SOL for trying to make their countries better places by helping get rid of terrorists? The Taliban has already announced they are going to kill anyone whose name they find, but I guess since they are just Afghans, oh well? As for all the companies that are refusing to do business with Wikileaks, that's their decision. Perhaps they feel more a sense of loyalty to this country than people like you do. Of course, remember that your nice life of being educated and well off and having the right to spew your crap was fought for and earned by the generations before you that did the dirty work and made the hard decisions and paved your way. Your liberal rantings and whining make me want to puke. I hope to hell that the next terrorist attack gets you or someone you love. Maybe that will get your attention.

Which is worse?

Some of y'all no doubt think what Julian Assange and his crew at Wikileaks are doing is a crime, or, is at least detrimental to the interests of this country. On that issue we may have to agree to disagree.

Let's just keep in mind that Mr. Assange published documents provided to him from a third party about events that have already happened.

As Gregg Easterbrook, author of The Progress Paradox and Sonic Boom (two books I highly recommend), a fellow at the Brookings Institute and the man behind Tuesday Morning Quarterback, writes in his most recent TMQ:

Is the WikiLeaks disclosure of Pentagon and State Department internal documents dangerous, by reducing U.S. military and diplomatic effectiveness? Or good, by pulling down the veil of secrecy around government? Obviously there are arguments on both sides. Here's what struck me. Last week this New York Times page-one story reported the Obama administration "plans to further step up attacks on al-Qaeda and Taliban insurgents in the tribal areas of Pakistan."

Maybe that's a good idea; maybe it's not. But as an item of information, the Times story is far more explosive than anything in WikiLeaks disclosures so far, most of which contain trivia and statements of the obvious. The Times story tells al-Qaeda and Taliban factions in tribal Pakistan that raids and air strikes will increase. The story is a warning of something about to happen, rather than a retrospective on prior events. And the story is sourced to unnamed "administration officials." That is -- the information was leaked by the White House or Pentagon.

Perhaps the purpose of the leak was to make the president sound tough at a time when his poll numbers are fluttering. Perhaps the purpose was to make the U.S. military sound powerful at a time when a $725 billion Pentagon budget request was awaiting approval in Congress. The purpose cannot have been to help American soldiers and air crew in the field. Their chances would be best if U.S. forces struck al-Qaeda and Taliban targets without warning, with nothing said by the White House or Pentagon until after the operation was over.

I don't question the Times' decision to run the story. What I question is White House and Defense Department officials denouncing Julian Assange when he publishes leaks that embarrass the powerful -- then merrily using leaks themselves when they think the powerful will benefit. If revealing government information is, on its face, an offense, White House and Pentagon officials who leak to reporters should be chased across the world and prosecuted just as vigorously as Assange.

Maybe the WikiLeaks idea is indeed wrong. But compared to White House and Pentagon officials who leak to the press when it suits them, isn't Assange -- who uses his name rather than hide behind anonymity -- the honest one?

Here is a link to the New York Times story referenced by Mr. Easterbrook.

Mr. Easterbrook makes a very powerful argument that while Mr. Assange's releases might embarrass the United States government, the people who leaked information about upcoming battle plans in the Middle East are placing the lives of American men and women in danger.

C'mon, Mr. Holder, if you're trying to find a way to charge Mr. Assange for a criminal offense for publishing the cables, you also need to pursue the source of the leaks regarding military strategy in the Middle East. Or is it okay to risk the lives of our servicemen for political gain?

And why am I even asking that question? We all know the answer.

We're the ones paying to shred the Bill of Rights

In NHTSA's No Refusal Weekend Toolkit you can find some interesting talking points about why motorists' rights under the Constitution and Bill of Rights should be bent, folded, spindled and mutilated:

• The BAC test is one of the most important pieces of evidence in a DWI arrest. The prosecuting attorney will review the evidence to determine whether to pursue a DWI offense, reduce the case to a lesser offense, or dismiss the case. 

•  Allows prosecutors to obtain evidence including alcohol and other impairing substances in the arrestee’s system. 

• BAC testing preserves evidence for independent testing. 

•  Answers jury’s expectations regarding the “CSI effect” (i.e., they always have that sort of evidence on TV) 

• May decrease the breath test refusal rate and may decrease the number of trials. 

• May increase your conviction rates based on solid evidence. 

•  Increases training opportunities for law enforcement and prosecutors. 

•  Brings diverse groups together in a law enforcement effort and fosters understanding among these groups. 

• May establish better relationships with area hospitals. 

• May provide judicial protection for law enforcement officers and nurses in DWI cases. 

• Provides due process for arrestees. 

• Makes a bold statement about your commitment to DWI enforcement.

Let's make a joke out of the 4th Amendment because it'll make it easier to make cases against motorists suspected of driving while intoxicated! That's just the ticket. By compelling motorists to give evidence to the police by threat of forcible blood draw we might also reduce the number of motorists who choose to exercise their right to trial by jury.

Would that bold statement be that we don't care what the Constitution or the Bill of Rights says -- we're going to do what we want to do when it comes to suspected drunk drivers?

And all of this comes from your tax money. That's right, NHTSA is using our tax money to promote an initiative to curb the Constitutional rights of the citizenry. This is Big Brother at its worst. We can't have labor unions using members' dues money for political activity, but we have to sit by while the state takes money out of our pocket to push for curbing our rights on the highway.

How's that for limited government?

Something's just not adding up

If you listen to MADD and law enforcement, you might think the roads are more dangerous today than they've ever been. You might think that we need to shred the Constitution and Bill of Rights in order to regain control of our highways. You might think that drunk driving is worse today than just a few years ago.

You might think that -- but you'd be wrong. Despite the media hype of No Refusal Weekends and forced blood draws, the reality is that our highways are safer now than they were ten years ago. And that's according to the National Highway Traffic Safety Administration (NHTSA).

In 2000, there were 57,280 drivers involved in fatality accidents. Of those drivers, 12,261 had alcohol concentrations of .08 or higher (that's 21% of the drivers). That number, however, does not indicate how many of those impaired drivers were at fault for the accident.

Fast forward to 2009 when the number of drivers involved in fatality accidents dropped to 45,230. The number of drivers with alcohol concentrations of .08 or higher dropped to 10,102 (22% of the drivers). Again, we don't know from the NHTSA study how many of those impaired drivers were at fault for the accident.

So, between 2000 and 2009, there were 21% fewer drivers involved in fatality accidents and almost 18% fewer drivers with alcohol concentrations of .08 or higher. If that's the case, if our roads are safer now than they were ten years ago, why the push to curb motorists' constitutional rights?

Is the No Refusal "movement" the proverbial nose of the camel edging underneath the tent? If we demonize motorists accused of driving while intoxicated are we making it easier to curtail the rights of other defendants?

If you're living in a glass house...

Once again State District Judge Kevin Fine has found himself in a bit of hot water. You should remember that the local Republican Party make Judge Fine their whipping boy in the most recent election -- even though he wasn't running. Now he's being criticized by prosecutors for reducing the bond of a Harris County Sheriff's deputy accused of dealing in drugs. It seems that Judge Fine reduced Richard Nutt's bond from $200,000 to $20,000 without notifying the Harris County District Attorney's Office.

Article 17.091 of the Texas Code of Criminal Procedure states that

Before a judge or magistrate reduces the amount of bail set for a defendant charged with an offense listed in Section 3g, Article 42.12, or an offense described by Article 62.001(5), the judge or magistrate shall provide:
(1)  to the attorney representing the state, reasonable notice of the proposed bail reduction; and
(2)  on request of the attorney representing the state or the defendant or the defendant's counsel, an opportunity for a hearing concerning the proposed bail reduction.

Article 42.12, Section 3g(2) of the CCP refers to criminal acts alleged to have been committed by an accused in which he used or exhibited a deadly weapon - here Deputy Nutt's firearm.

There is nothing in the Harris County District Clerk's website to indicate that a written motion to reduce Deputy Nutt's bond was filed. It would appear that Judge Fine acted on his own.

The Harris County DA's Office is up in arms because they weren't consulted before the Judge issued his ruling. One of the rules of civil law I learned in law school was that the person making an allegation should have clean hands.

It is a well-known "secret" at 1201 Franklin that judges and prosecutors discuss cases without defense attorneys being present. "Judge, this is the case we discussed..." is not an unusual thing to hear from a prosecutor at the bench. I have sat in the middle of trial and listened to judges instruct prosecutors on how to get evidence admitted. I have been present at dockets in other counties in which the judge and prosecutors discussed where a case would fall on the trial docket without defense counsel present.

That doesn't make Judge Fine's decision correct, but, if you're living in a glass house...

Is proposal to end ALR system in the works?

Could the Administrative License Revocation system in Texas be coming to an end?

A little bird told me that State Senator Dan Patrick (R-Houston) is planning on introducing legislation this coming session to do away with the ALR system. According to my sources, under Sen. Patrick's proposal, a license suspension would be imposed upon the finding of probable cause by a magistrate.

Currently a motorist accused of a first driving while intoxicated faces a 90-day suspension for failing a breath test and a 180-day suspension for refusing to blow in the state's breath test machine. At the ALR hearing, the DPS must show that the officer either had reasonable suspicion to believe the motorist had committed an offense or probable cause to arrest.

The reasoning behind Sen. Patrick's proposal is that once a magistrate determines probable cause to arrest existed, there is no need for the state to spend any more money trying to prove it up at a ALR hearing. Nevermind the fact that at an ALR hearing the DPS must at least prove their case by a preponderance of the evidence -- at a probable cause hearing a judge must only find that probable cause to arrest exists.

The state would benefit in a couple of other ways, as well. Since the suspension would be imposed automatically upon a finding of probable cause, more motorists would have to pony up $125 reinstatement fees. Axing the program would also eliminate the ability of defense attorneys to depose the officers under oath before prosecutors get hold of them.

A bigger issue, however, is the imposition of criminal sanctions before the state has proven each and every element of its case beyond all reasonable doubt. Supporters can claim all they want that a license suspension is an administrative action separate and apart from the DWI case, but by using a magistrate's probable cause finding as the trigger -- the proposal would tie the two together at the hip. Such a move would violate the separation of powers doctrine and would serve to reduce the state's burden of proof.

Taking a sledgehammer to the First Amendment

jour·nal·ist

 noun \-nə-list\

1

a : a person engaged in journalism; especially : a writer or editor for a news mediumb : a writer who aims at a mass audience

Now that Wikileaks founder Julian Assange is out on bail in England, the US government is looking for ways to charge Mr. Assange with conspiracy for passing along classified information. The Justice Department is investigating the way in which Army Pfc. Bradley Manning passed the leaked cables to Wikileaks.

Prosecutors are looking at a transcript of an online chat log in which Mr. Manning claims to have communicated with Mr. Assange. Mr. Manning also alleges that Mr. Assange provided him with access to a dedicated server for the uploading of the secret documents.

So, in order to deflect attention from the contents of the cables, los federales are willing to take a sledgehammer to the First Amendment and go after a journalist who provided a forum for an individual who had documents he wanted to see the light of day. There is no conspiracy. At least no more of one than exists anytime a reporter accepts information from a source with the promise not to reveal the source's name. Pentagon Papers, anyone?

Mr. Assange may have provided Mr. Manning with access to a server. That is no different from a reporter agreeing to meet a source in a parking garage, in a park or in the back room of a pool hall. Bit and bytes are the coin of the realm today - not reams and reams of paper.

If Mr. Manning did indeed release the secret cables then he is guilty of passing along classified information. But Mr. Assange broke no law by posting the information online.

This little witch hunt being conducted from Washington is nothing more than an attempt to silence the critics of the government and the journalists who provide them a forum to do so.

Sometimes right is right

I'm often a critic of the Right when it comes to our criminal (in)justice system, but, sometimes they've actually got it "right."

Right on Crime, a conservative organization looking at how we handle crime, launched this week. Right on Crime is headed up by Marc Levin, the director of the Center for Effective Justice at the Texas Policy Foundation.

One of the priority issues for Right on Crime is overcriminalization. I've written before about the explosion in the number of federal crimes over the past century. In many cases these federal crimes are crimes that are already covered in state penal codes. The vast majority of federal crimes are regulatory crimes - "crimes" in which there is no alleged victim and no required mens rea.

There are so many of these strict liability crimes that it is impossible to keep up with them. Men and women are charged with criminal violations without ever knowing the alleged conduct was criminal. Right on Crime's solution is right in line with what I've stated in the past:

• Stop creating new criminal offenses as a method of regulating business activities. Regulation is better handled through fines and market forces, not the heavy stigma of criminal sanctions

• Avoid licensing new occupations and revise laws to eliminate criminal penalties that are currently associated with many occupations.

• Ensure that an appropriate culpable mental state is included in the elements of all offenses.

• Return the responsibility for prosecuting and punishing traditional crimes to the states.

• Revise criminal laws to remove ambiguities and consolidate redundant laws to help prevent prosecutorial abuse.

There is not one of Right on Crime's proposals that I can't say I don't agree with. Strict liability regulatory crimes should be stricken from the criminal ledger. Enforce regulatory law through civil penalties, not criminal sanctions. For the most part, violent crime should be handled by the states. Let the states handle those charged with drug crimes in state court.

Now when it comes to handling substance abuse issues, Right on Crime proposes more drug courts. On this we disagree. While it is true that many defendants charged with possession are in need of drug treatment, the courts are not the proper vehicle for delivering that treatment. Courts are for meting out justice (in a perfect world). Forcing treatment upon an individual upon threat of criminal sanction is not the best way to see that someone receives treatment for an addiction. Drug courts also serve to undermine our adversarial system by forcing defense attorneys to be on the same "team" as prosecutors and law enforcement.

Another area in which we are in agreement is that warehousing inmates doesn't work. Currently approximately one person in 100 is incarcerated. Forty years ago that number was 1 in 400. While the United States holds 5% of the world's population, we hold 23% of the world's prisoners. Something's not working. Warehousing inmates drains money from state coffers and prevents able-bodied men and women from being productive citizens which reduces state and federal tax revenue. It also creates a situation in which middle-aged men and women are released from prison without the ability to earn a living.

According to Right on Crime, we need to:

• Understand that to be considered “successful,” a prison must reduce recidivism among inmates.

• Increase the use of custodial supervision alternatives such as probation and parole. In many cases, these programs can also be linked to mandatory drug addiction treatment and mental health counseling that would prevent recidivism. States' daily prison costs average nearly $79.00 per day, compared to less than $3.50 per day for probation.

• Consider geriatric release programs when appropriate. Approximately 200,000 American prisoners are over the age of fifty. The cost of incarcerating them is particularly high because of their increased health care needs in old age, and their presence has turned some prisons into de facto nursing homes for felons – all funded by taxpayer.

• Consider eliminating many mandatory minimum sentencing laws. These laws remove all discretion from judges who are the most intimately familiar with the facts of a case and who are well-positioned to know which defendants need to be in prison because they threaten public safety and which defendants would in fact not benefit from prison time.

• For those instances when prisons are necessary, explore private prison options. A study by The Reason Foundation indicated that private prisons offer cost savings of 10 to 15 percent compared to state-operated facilities. By including an incentive in private corrections contracts for lowering recidivism and the flexibility to innovate, private facilities could potentially not just save money but also compete to develop the most cost-effective recidivism reduction programming.

Again, I agree with most of their proposals - with the exception of privatizing prisons. There is something more than a little unseemly about for-profit prisons. Throw in quarterly profit expectations and concerns over share prices and you've got a recipe for cutting corners.

These proposals are based on the principles of federalism and limited government and would, in many cases, restore some sanity to our criminal (in)justice system.

The vampires' sleight of hand

From Fastline: the Official Blog of the US Secretary of Transportation comes this gem:

Refusal rates in Texas have dropped from nearly 50 percent down to 10 percent. And, when a case does go to trial, conviction rates are higher. As [Montgomery County, Texas] Asst. D.A. [Warren] Diepraam said, "We give 100 percent scientific evidence to our juries."

Ray LaHood is the Secretary of Transportation. Mr. LaHood took an oath to uphold the Constitution. Mr. LaHood is a public employee - we pay his salary.

The Department of Transportation, Mr. LaHood's bailiwick, is funded by the taxpayers.

And your tax money is being used to water down the protections laid out in the Bill of Rights all in the name of making it easier for prosecutors to brand motorists criminals for life.

When Mr. LaHood and his fellow travelers speaks out in favor of No Refusal Weekends they are playing the public for fools. The object is to make motorists accused of driving while intoxicated the enemy - the "them" to our "us."

Letting "them" choose not to blow in the state's breath test machine is an affront to "us." Forcing "them" to choose between blowing and bleeding is a benefit to "us." The vampires and their friends are using the ultimate sleight of hand trick to get the public's support for their end run around the Fourth and Fifth Amendments. Of course, by demonizing motorists accused of drunk driving, the bloodsuckers can distract your attention from the real issue at hand.

For you see, it may very well be "us" versus "them," but not in the way the vampires want you to envisage. We, the people, are "us." The Bill of Rights protects our rights from the avaricious hands of the government we created. Thomas Jefferson and the anti-Federalists insisted upon the Bill of Rights because they foresaw a government that would seek to expand its powers into the daily affairs of man.

And that's just what those pushing No Refusal are doing -- seeking to expand the power of the state. The act of standing up for one's rights is the most revolutionary thing a person can do. The act of refusing to give the state the evidence to convict oneself is a noble deed and serves to protect all of us -- not just the accused.

Allow the state to take away one's right not to incriminate oneself when accused of DWI, and it's just a matter of time before the state comes to take away another of your "inalienable rights."

Federal government cheers as the Bill of Rights burns

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. - 10th Amendment

The US Department of Transportation has decided to jump on the vampire-driven bandwagon of No Refusal true believers. So much for federalism and the principle of limited government.

Drunk driving is a state crime, not a federal issue and los federales have no business trying to impose a program that makes a mockery of the Constitution on the states.

The idea of someone skirting the law and walking away from a drunk driving offense by refusing a breathalyzer test is an insult to the tens of thousands of people who have been killed by drunk drivers over the years. -- US Sec'y of Transportation's official blog

No, I must disagree. The Fifth Amendment says one may not be compelled to incriminate himself. I find it an insult that a cabinet official treats the Bill of Rights in such a manner. Mr. Secretary, anyone accused of a crime is innocent unless the state can prove beyond all reasonable doubt that he broke the law. I hate to break it to you, sir, but not everyone accused of driving while intoxicated is guilty. The police make mistakes. That's why we have trials.

Tactics like these by the government serve no purpose other than to poison jury pools. Beat the drum loudly enough, long enough and you can pound your message into your listeners.Of course there are few voices pointing out that these decisions often are made in the middle of the night by a person who is scared and who is not allowed the opportunity to consult with an attorney.

As NHTSA Administrator David Strickland said, "The 'No Refusal' strategy supports prosecutions and improves deterrence--both of these outcomes mean fewer drunk drivers on the road."

And that I think is the meat of the matter - supporting prosecutions. Never forget that it's "The State of Texas" versus the motorist charged with DWI. The prosecutor has the entire force of the government behind him or her - a government that isn't interested in a motorist's civil liberties or constitutional rights. No Refusal is all about making it easier for the government to brand a motorist a criminal for life.

Assange granted bail

Julian Assange has been granted bail.

Here is the update from The Guardian. However, since the Swedish government has decided to appeal the ruling, Mr. Assange will be kept in custody for the next 48 hours, 46 of those which will be in solitary confinement.

Living 30 seconds at a time

I was up in Huntsville this past weekend for my annual 50k trek through the state park with a band of other equally crazy people who thought running through the woods all day was a good idea.

The weather forecast was far from ideal with afternoon highs expected to top out in the mid- to upper-70's (not the best of scenarios for distance running). It wasn't all that bad in the end, though.

I ran the race (for the second year) with my colleague Rand Mintzer. Since he was recovering from an injury he was planning on running 30 second splits (run 30 seconds, walk 30 seconds, repeat). Given the weather forecast, it ended up working like a charm.

That's not to say it was a walk in the park, however. After 26 miles on course I was worn out. It became a mental game. How can I convince my legs to keep moving when I'm tired and hot?

I suspect most folks rarely, if ever, reach a point they have to push themselves past their physical or mental limits.  And that's a shame - because it's when you've reached that point that you find out just what you are capable of doing. It's when you reach that point that you have to decide how badly you want to go further. It's at that point that you are the most alive.

Over the last 2+ miles Saturday, my world consisted of the two or three feet in front of me and the next 30 seconds. I don't remember the last time I felt so alive as I did for those 30-40 minutes.

Greetings from Montgomery County

Highway sign welcoming you to Montgomery County, Texas -- otherwise known as the land the Constitution forgot.

Two strikes and you're out

How does a permanent license revocation for a second DWI conviction sound to you?

State Sen. Jane Nelson (R-Flower Mound) has filed SB231 that would revoke a motorist's license permanently upon a second conviction for driving while intoxicated. I guess Ms. Nelson somehow thinks that just because a person doesn't have a driver's license they won't get behind the wheel of a car. I don't know what planet she's from because where I live, the lack of a valid license has never stopped anyone.

Thinking practically (something our esteemed members of the legislature are not paid to do) about the proposal, how would these folks get back and forth to work? Would they be eligible for a permanently restricted license? Would they have to continue going back to court periodically to renew that license? Or is the legislature planning on funding mass transit programs in every town, city and county in the state so that people can get around in a reasonable manner without relying on their cars?

You know a proposal dealing with drunk driving is nutty when even MADD is against it.

“I don’t think this bill is going anywhere. It’s one of those make-you-feel-good types of bills, but it doesn’t stop drunk driving, People who lose their driver’s license are still going to drive ... they will be more careful after losing their licenses but they are still going to drive.” -- Bill Lewis, MADD public policy liaison

Taking responsibility or confessing to a crime?

Former Houston Rocket star and current Sacramento assistant coach Mario Elie was arrested last night for DUI in Sacramento. And just how did he manage to get himself in trouble? Was he swerving? Or weaving? Or driving dangerously?

No.

He was pulled over for having a broken taillight on his car around one in the morning. The officer approached the window, smelled alcohol and decided that Mr. Elie was driving while intoxicated.



Of course, Mr. Elie did himself no favors when he decided to accept "full responsibility" and issue this confession statement:

"I was pulled over last night on my way home for having a broken taillight. I had been out and had a couple of drinks. My blood alcohol level was slightly over the legal limit. I'm very sorry, embarrassed and disappointed for the position in which I put myself and team. Rest assured, it won't happen again as I take full responsibility for my actions."

You can rest assured that Mr. Elie's attorney wasn't behind it. Did team officials suggest he issue the confession statement to ease public sentiment?  It doesn't matter now because Mr. Elie has made an admission that he was intoxicated at the time he was operating a motor vehicle. 


Blowing over .08 on the state's breath test machine isn't the "kiss of death." There are issues to be raised about the accuracy of the machine and the pseudo-science behind it. But Mr. Elie did himself no favors when he issued his confession statement.

Certainly folks want their sports celebrities to act responsibly and to be accountable for their actions. Fans grow weary of seeing booking photos of their favorite players. But, and this is a really big but, there is a difference between being accountable and confessing to a crime for which may or may not be guilty. If he said he shouldn't have put himself in that position or that, upon reflection, it's not a good idea to drive after you've been drinking (even if you aren't intoxicated) - that would be one thing. But making the statement that you knew you broke the law -- before any evidence has been presented and before anyone has investigated the case, isn't very smart.

Shifting the focus

Yesterday, US Representative Ron Paul (R-Texas) took to the floor of the House and spoke out against the persecution of Wikileaks head Julian Assange. While I am certainly no big fan of Mr. Paul, on this issue we are in agreement.

So, in celebration of International Human Rights Day, here's Mr. Paul's speech:



This is the transcript of Mr. Paul's speech entitled "Lying is Not Patriotic"

WikiLeaks' release of classified information has generated a lot of attention world-wide in the past few weeks. 

The hysterical reaction makes one wonder if this is not an example of killing the messenger for the bad news.

Despite what is claimed, information so far released, though classified, has caused no known harm to any individual, but it has caused plenty of embarrassment to our government.  Losing a grip on our empire is not welcomed by the neoconservatives in charge.

There is now more information confirming that Saudi Arabia is a principle supporter and financier of al-Qaeda and this should set off alarm bells since we guarantee its Sharia-run government.

This emphasizes even more the fact that no al-Qaeda existed in Iraq before 9/11, and yet we went to war against Iraq based on the lie that it did.

It has been charged, by self-proclaimed experts, that Julian Assange, the internet publisher of this information, has committed a heinous crime deserving prosecution for treason and execution or even assassination.

But should we not at least ask how the U.S. government can charge an Australian citizen with treason for publishing U.S. secret information, that he did not steal?

And if WikiLeaks is to be prosecuted for publishing classified documents, why shouldn’t the Washington Post, New York Times, and others that have also published these documents be prosecuted? Actually, some in Congress are threatening this as well.

The New York Times, as a result of a Supreme Court ruling, was not found guilty in 1971 for the publication of the Pentagon Papers.  Daniel Ellsberg never served a day in prison for his role in obtaining these secret documents.

The Pentagon Papers were also inserted into the Congressional Record by Senator Mike Gravel with no charges being made of breaking any National Security laws.

Yet the release of this classified information was considered illegal by many, and those who lied us into the Vietnam War and argued for its prolongation were outraged.  But the truth gained from the Pentagon Papers revealed that lies were told about the Gulf of Tonkin attack which perpetuated a sad and tragic episode in our history.

Just as with the Vietnam War, the Iraq War was based on lies.  We were never threatened by Weapons of Mass Destruction or al-Qaeda-in-Iraq, though the attack on Iraq was based on this false information.

Any information that challenges the official propaganda for the war in the Middle East is unwelcome by the administration and supporters of these unnecessary wars.  Few are interested in understanding the relationship of our foreign policy and our presence in the Middle East to the threat of terrorism.  Revealing the real nature and goal for our presence in so many Muslim countries is a threat to our empire and any revelation of this truth is highly resented by those in charge.

Questions to consider:

1.  Do the American people deserve to know the truth regarding the ongoing war in Iraq, Afghanistan, Pakistan, and Yemen?

2.  Could a larger question be: how can an Army Private gain access to so much secret material?

3.  Why is the hostility mostly directed at Assange, the publisher, and not our government’s failure to protect classified information?

4.  Are we getting our money’s worth from the $80 billion per year we spend on our intelligence agencies?

5.  Which has resulted in the greatest number of deaths: lying us into war, or WikiLeaks’ revelations or the release of the Pentagon Papers?

6.  If Assange can be convicted of a crime for publishing information, that he did not steal, what does this say about the future of the First Amendment and the independence of the internet?

7.  Could it be that the real reason for the near universal attacks on WikiLeaks is more about secretly maintaining a seriously flawed foreign policy of empire than it is about national security?

8.  Is there not a huge difference between releasing secret information to help the enemy in the time of a declared war — which is treason — and the releasing of information to expose our government lies that promote secret wars, death, and corruption?

9.  Was it not once considered patriotic to stand up to our government when it’s wrong?

Thomas Jefferson had it right when he advised:  "Let the eyes of vigilance never be closed."

Mr. Assange is merely the messenger. He's not the one who lied to the American public and our allies. He's not the one who is waging a never-ending war in the Middle East, putting the lives of thousands of America's young people at risk.

Lawyer files suit to end surcharge program

I've written in the past of Texans caught in the Kafka-esque nightmare of the DPS Driver Responsibility Program that imposes surcharges on drivers convicted of certain offenses such as driving while intoxicated and driving without insurance.

Fort Worth defense attorney Mimi Coffey has also had enough. Ms. Coffey filed suit in federal court seeking to end the surcharges on the grounds that the imposition of the surcharge violates the principle of double jeopardy. The argument goes that the person has already had a penalty imposed by the court as a result of the conviction -- be it a fine, jail time, probation or a license suspension - and that the imposition of another financial penalty is, in effect, punishing the motorist a second time.

"You can't deprive property without due process," Coffey said. "I think it's time somebody do something about this."

The situation worsens if a motorist cannot afford the surcharge as the sanction for failing to pay the surcharge is a license suspension. And this is where the program becomes a never-ending cycle for those caught up in its vortex: if you can't pay the surcharge your license is suspended and, should you be ticketed for driving on that suspended license you'll get hit with another surcharge and yet another license suspension.


The author of the original bill putting the program into place, Rep. Mike Krusee of Round Rock, thinks the Driver Responsibility Program needs to go. Even MADD says it's time to scrap it (provided the state find another way to fund trauma centers).

"We have seen nothing that shows the program helps deter drunken driving."  Bill Lewis, MADD public policy liaison

Others have proposed repealing the program as is and enact new legislation that would hit motorists convicted of DWI for surcharges. Let's see, a motorist convicted of drunk driving has a criminal conviction on his record that can never be expunged, he spent at least a night in jail and will likely be under court supervision for at least 12 months -- I think reasonable people would agree that's adequate punishment.

Theater of the absurd, London-style

An arrest warrant and an international manhunt all for someone who may very well not have broken a law. Add another country's judge's decision to deny bail and you have all the ingredients for a production in the theater of the absurd.

The judge said he had concerns that Mr. Assange might flee the jurisdiction and fail to appear in court. Well, Your Honor, Mr. Assange made the arrangements to turn himself in -- that doesn't exactly sound like the workings of a man intending to flee.

Wikileak head Julian Assange is being held without bail in London for having sex in Sweden either with a condom that broke or with no condom at all -- which apparently isn't a criminal offense in Sweden. Or maybe he's being held on suspicion of "sex by surprise" (which carries a $715 dollar fine). Or maybe it's rape. No one appears to know. We do know that the complaining witnesses went to the police only after Mr. Assange refused to go to the hospital to be tested for a sexually transmitted disease. The two ladies claim they never wanted Mr. Assange arrested -- they just wanted him tested.

The whole scenario sounds vaguely similar to the way men accused of domestic assault are treated in Harris County. The police are called to the scene and arrest the man. He's taken downtown and booked into the jail with either no bail or an excessively high bail so that he can't bond out before a magistrate reads the charge against him and issued an emergency protective order. And, just as with Mr. Assange's case, the complaining witness will sometimes (often?) turn around and say she never wanted her man arrested, she only wanted the police to tell him to leave.

Whatever the case may be, holding a man in one country for an alleged offense that may or may not have occurred in another country that only carries a fine and denying bail does seem a bit much.

Playing games

"If we can't play by my rules, I'm taking my ball and going home."

Sounds like pretty childish, doesn't it? Well that's just what Harris County District Attorney Pat Lykos ordered her prosecutors to do this week in the 177th. Instead of arguing in favor of the state's application of the death penalty, Ms. Lykos and her minions decided it was more appropriate to play games.

"We still respectfully refuse to participate in the proceeding, your honor." Assistant Harris County District Attorney Alan Curry

The hearing in Judge Fine's court is to determine whether or not the application of the death penalty in Texas violates the Eighth Amendment's prohibition against cruel and unusual punishment. The attorneys for Mr. John Green, the man facing capital murder charges, are challenging the application of the death penalty on the grounds that state-sponsored murder violates the Constitution in that the state has murdered innocent people - despite supposed safeguards to prevent the ultimate miscarriage of justice.

One of the primary arguments of the DA's Office is that Mr. Green's claims aren't ripe since he hasn't been convicted of anything, much less sentenced to die. After refusing to participate in the hearing on Monday, prosecutors filed a petition with the Court of Criminal Appeals seeking a stay of the hearing. If Mr. Green's claim isn't ripe, the state's claim is picking at the same fruit on the tree as Judge Fine has yet to issue any rulings in the hearing.

Despite prosecutor's claims to the contrary, Mr. Green's claim is ripe for the picking due to the method by which Texas mandates juries are selected in capital cases. The qualifying questions that are asked of the jurors in a capital case (almost) assure a jury panel that is more likely to convict that a panel in any other type of case. And, since death is an option for the jury in a capital case, the question of whether or not the death penalty, as currently administered in Texas, is constitutional is of the utmost import.

In a capital case, jurors are asked whether they could impose the death penalty upon a conviction. Anyone who says they can't is excused from the panel - thereby assuring a panel that is statistically more likley to impose death. That alone changes the entire dynamic at trial.

A man's life may be on the line and the district attorney's office is playing games. So much for "seeking justice."

See also:

"Green hearing shutting down for now," Simple Justice, December 8, 2010
"Mandamus in John Green case," Defending People, December 7, 2010
"In Texas case questioning death penalty, prosecutors ordered to stay silent," Alternet, December 7, 2010
"Prosecutors 'stand mute' in unusual death-penalty hearing," Yahoo! News, December 7, 2010

Wikileaks and the assault on openness

Oh what is one to make of this sordid scandal involving Wikileaks chief Julian Assange? As I write this, Mr. Assange is sitting in a London jail without bail on a Swedish warrant for sexual assault. I'm not here to go into the details of the alleged charges. Having unprotected sex and (allegedly) passing on a sexually transmitted disease is really not very cool. On the other hand, having world leaders calling for his head for espionage is even more unseemly.

Since the release of secret US documents last month, Wikileaks has been under assault. First Amazon (and later other firms) refused to host the Wikileaks website. Then PayPal and other firms halted the processing of electronic payments to Wikileaks. Then the Swiss bank that held the Wikileaks account froze it. Of course, what's good for the goose is also good for the gander.

All of this because Mr. Assange and his confidential sources released documents that might embarrass those in power.

Our elected officials, and their appointed minions, are accountable to the citizens of the United States. They work for us. The State Department has the task of managing the foreign affairs of the country. Their duty is to act in the best interest of the United States -- that is, the citizenry.

Destabilizing foreign governments, erecting puppet regimes and greasing the skids for American-based transnational corporations under clouds of secrecy is not in this country's best interest. I'm sure there are some very embarrassing things to be found in the leaked documents; I'm also certain that sometimes it's best to say one thing in public and something very different in private (we all do it from time to time). But let's face it, when it comes to foreign affairs, the United States doesn't have the best record of supporting human rights and civil liberties.

We would freak out in this country if it turned out that bucket loads of foreign money was being funneled to candidates for the House, Senate or White House. Yet, our government has no qualms about pumping US dollars into elections in other countries in order to elect politicians friendly to US demands.

I don't know what Mr. Assange's motives are and I don't really care. By releasing these documents, Wikileaks is imposing accountability on those who made decisions in the State Department. Accountability is supposed to be a good thing. Judges and prosecutors are forever telling defendants they need to be accountable for their actions. If it's good for Johnny Two-times on the street,  I think it's good for the President and his men, too.

Secrecy is the greatest enemy of democracy.

See also:

"Bailing Assange," Simple Justice, December 8, 2010.
"The false indignant outrage over Julian Assange," Felonious Munk, December 7, 2010.
"Julian Assange: Neocon tool?" New York Times, December 7, 2010.

Just another cover up

A Florida judge approved a cosmetologist's $125 per day charge for covering up the tattoos of a man accused of murder. Mr. John Ditullio has acquired multiple tattoos, quite a few on his head and neck, since being jailed  for a 2006 murder.

Among the pieces or art needing to be covered up were a large swastika on the right side of his neck, a crude insult on the left side and barbed wire running down his face. Said his defense attorney, Mr. Bjorn E. Brunvand,

“It’s easier to give someone who looks like you a fair shake.”

Mr. Brunvand has a very valid point. I think it would be quite difficult to get a jury of twelve folks to disregard the elephant in the room at trial. No matter how you dress Mr. Ditullio up and no matter how much you build up his reputation, those tattoos are just screaming out that he's one bad dude.

Everyday at the courthouse I see people with tattoos on their necks. I see folks milling in the elevator lobby dressed up like gangbangers and dope fiends. I'm sure that some of them really just don't give a damn about what's going on. No one inside the courtroom is going to take them seriously. Their pleas will fall upon deaf ears.

I know an attorney who had a client with a shaved head full of tattoos. He told his client he was going to grow his hair out and leave it that way until his case was resolved.

In an era when states and counties are trying to keep down the cost of indigent defense by slashing vouchers and denying requests for funds for investigators, why did the court approve this expense? Mr. Ditullio certainly wasn't attacked by a mob of inksters, he chose the art and he chose his canvas. His appearance was his own creation.

Maybe the argument is that a defendant who could afford to retain private counsel could also afford a makeup artist who could cover up the tattoos and that should the court deny the request, Mr. Ditullio could have grounds to appeal a conviction (a mistrial was ordered the last time the case was tried).

The only thing is some wounds are self-inflicted.

Sometimes newer just isn't better

This past Sunday my trusted T-Mobile Dash leapt to its death from the rear deck lid of my Honda as my youngest daughter and I headed off to get a Christmas tree. I really liked that phone. I could access all of my e-mails, contacts and calendars whenever I needed to do so. It wasn't fancy. It didn't have a touchscreen. It had limited memory. And it had a rollerball that worked better some days than others.

As I picked the pieces up off the road I knew I was about to have to spend a chunk of change to replace it. I headed to the nearest T-Mobile store and was pointed toward the new HD7 (Windows mobile) and G2 (Droid) phones. I asked the clerk if the phones would do what my outdated, last-generation phone would do and I was assured that they would.

Figuring that the Windows mobile phone would easily sync up with Outlook (wrong) I went with the HD7. As I got to playing with it I began to get annoyed with it. The virtual keyboard is lousy compared to the actual mini keyboard on the Dash. Sure, the screen was big and bright and I could view websites much easier on the HD7 than on the Dash. But this phone was for business.

I sat down to sync the phone - and this is where the trouble began. When I plugged the phone in, my computer began accessing Zune (not a good sign). I called customer service (since the "owner's manual" contained next to no useful information) and was told that I had to use Zune to sync the phone. (Wrong.)

When I realized that that was not going to do it, I called customer service again. I explained my problem to the girl who answered the phone and she assured me I could sync the HD7 with Outlook. Then she transferred me to tech support - the girl there had little idea what she was talking about and told me that the phone would not sync with Outlook. (Please explain that to me, Bill Gates.)

My displeasure with the phone was now approaching hatred. The camera was awkward to operate and flushed out the subject with light. I could barely hear the person on the other end of the line on speaker phone.  Worst of all? There was no solitaire on the phone. No games at all. If you wanted a game, you had to buy it online.

After court this morning I returned to the office to attempt to make this thing work. I called customer service (again). I was transferred to tech support (again). The guy on the other end walked me through the unbelievable process of exporting my contacts from Outlook.

Easily synch w/ Microsoft Outlook

Stay in synch with your Contacts, Calendar, and Email in Microsoft Outlook

The T-Mobile website was, shall we say, not quite truthful. In order to download my contacts I had to create a Microsoft Live! account. After doing that I was able to access my contacts on the phone. Next came the calendar -- and, guess what, it's an even more complicated process (so complicated, in fact, that I decided it wasn't worth any more of my time).

T-Mobile was just plain dishonest in their claims about the HD7. It doesn't sync with Outlook. It certainly isn't done "easily."

Now it's off to take the HD7 back to the store and exchange it for a G2 - which I am fairly certain will be just as useless.