A look at HPD's history

On the ground floor of HPD Headquarters at 1200 Travis Street is the HPD Museum that contains an interesting assortment of items from HPD's past.

This is the pocket watch that saved Det. Owen Fondren's life by deflecting a bullet.

I like the detail work on the handle of Inspector Morrison's gun.

A beautifully restored 1952 Ford patrol car. The speedometer goes up to 100 mph.

This was the uniform worn by current Harris County District Attorney Pat Lykos.

This isn't a bad look. I think they should think about using it as a "throwback."

Intellectually dishonest or just full of it?

With Supreme Court Justices Scalia and Thomas espousing original intent -- along with a gaggle of Tea Partiers and right wing Republicans -- an article I came across in Salon asked what original intent would look like today.

To begin with, the original document was silent on the right to vote. Voting rights were largely a matter of state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older. The original Constitution did not allow for direct popular voting for president or the United States Senate, and there was no clear language even allowing for voting for members of the House of Representatives.

At the dawning of the Republic, those who could vote would cast their vote for electors who would select the President of the United States. Women, blacks, teenagers and those without property had no say. The mind shudders to think how some states might attempt to restrict the right to vote.

The original Constitution didn't include a Bill of Rights. Alexander Hamilton, one of the framers and authors of the Federalist Papers, argued against it. The Bill of Rights protects many rights the Tea Party considers hallowed, such as the freedom of speech and assembly and a right to bear arms. Lacking a Bill of Rights, these freedoms wouldn't be protected against limitation by the national government.

Yet more evidence that those believing the Constitution should be interpreted as if the Founding Fathers were asked have no idea what the intellectual consequences of such folly would be. Those that espouse that view also think the 1950's were an idyllic time in this country; conveniently forgetting about segregation and the great Red Scare.

Now, even if you want to attach the Bill of Rights to the Constitution for purposes of deriving original intent (and such a proposition would be iffy since the Constitution made no mention of those protections associated with the Bill of Rights), as written, the Bill of Rights only prohibits Congress from infringing upon certain rights -- there is no prohibition against action by the individual states.

But even if we consider the Bill of Rights, which was adopted in 1791, to be part of the original Constitution, there are still many limits on its use. Most importantly, as written, the Bill of Rights limited only national power -- not state power...Subscribe to an original intent reading of the Constitution and states are free to disregard individual rights, including free speech, property, religion and others.

Relying on original intent we would still have slavery as it was legally ended by the passage of the 13th Amendment. Blacks would still only count as 3/5 of a white man when it comes to votes and there would be no laws against segregation.

The Supreme Court would have no authority to interpret laws passed by Congress since the Constitution makes no mention of the Court's power to interpret the law.

Of course, if we followed the logic of original intent the United States would be involved in far fewer conflicts around the world as Congress would have the sole power to declare war. Not to mention that if we include the Bill of Rights, los federales would be unable to conduct warrantless searches. Federal criminal dockets would be a lot smaller since treason would be the only federal crime.

Ultimately the problem with original intent is that we have no idea what those men intended when they sat down to draft the Constitution. The Continental Congress may have gone into session to amend the Articles of Confederation with lofty political and philosophical aims but, once they got behind those doors, good ol' horsetrading was the coin of the realm.

If I can't figure out what my wife means at times, how on earth can we expect to know what a group of wealthy landowners meant when they met over 225 years ago? It defies all logic.

Remembering the Alamo

175 years ago today began the 13 days of glory that defined the Republic of Texas. On February 23, 1836, General Santa Ana's forces arrived in San Antonio de Bexar and laid siege to the mission known as the Alamo.

For thirteen days about 190 men fought off the Mexican army. On March 5, 1836, with the end in sight, Col. William Travis gathered the men together and told them if they stood their ground, they would be killed. Legend has it that Col. Travis took his sword and drew a line in the sand and asked those men who were willing to fight and die with him to cross it. As the story goes, only one man didn't cross it.

Santa Ana's army made its final assault the next morning, and by the time the sun rose, the Alamo had been taken and the defenders were all dead.

The legend of the Alamo is deeply ingrained in everyone who grew up in Texas. It remains my daughters' favorite place to go.

Fighting for the rights of the accused and standing beside them before a jury sometimes feels as hopeless as trying to defend the Alamo against a superior army. But sometimes it's the fight itself that is the victory. It was  fall of the Alamo and the death of the defenders that provided the spark that spurred on the Texans as they ultimately prevailed on the banks of the San Jacinto River.

Taking things too far

I love college football. Other than the Super Bowl, I could care less what happens in the NFL. I'll take marching bands, cheerleaders, tradition and heated rivalries over the boring, staid No Fun League any day of the week (and twice on Saturday).

The Texas Longhorns used to have three bitter rivalry games a year: Oklahoma, Arkansas and Texas A & M. Then the Hogs decided to run east with their tails between their legs so they could get throttled by Alabama, LSU and Florida year after year.

Crazy things happen with rivalries.  Downtown Dallas turns into a war zone every October when the Longhorns and Sooners tee it up at the Cotton Bowl. The Longhorns' mascot, Bevo, got his nickname after a bunch of Aggies branded him with the score of the game one year (13-0).

But out in Alabama, things got out of hand. A Crimson Tide supporter was arrested for poisoning the 130 year old Oak Trees at Toomer's Corner outside Jordan-Hare Stadium on the Auburn campus. For the past 40 years, Tiger fans have wrapped the oaks whenever Auburn nets a big win. That tradition may soon be coming to an end thanks to 62 year old Alabama fan, Harvey Updyke. Mr. Updyke called into a radio show and announced that he had poisoned the trees. He ended his call with "Roll damn Tide."

I'm not blaming what happened on Alabama fans. I have no dog in that fight. Rivalries can be fun. Most folks get it and understand that there's no actual hatred involved. It's all about the laundry. My team wears this color and they wear that color. There's no better example of what it's all about than 1999 when twelve students at Texas A & M were killed when the bonfire collapsed during construction. There was no hatred that day - just a friendly rivalry. The Longhorn band played a tribute to the fallen students and a somber mood carried the day. Everyone got it.



Alabama fans get it, too. Crimson Tide fans have raised over $38,000 toward trying to save the trees.

Mr. Updyke doesn't get it. I wonder if he even went to Alabama.

Confronting police brutality

Tuesday was the day to speak out against police brutality at the weekly meeting of the Houston city council. As I was scheduled to appear in court down on the island, I was unable to attend the meeting. My colleague, Robert Fickman, past president of the Harris County Criminal Lawyers Association, was on hand, however, and provides us with this guest post.

I attended today's City Council Meeting along with my officemate Vivian King. Altogether I am sorry to report that the meeting left me largely disappointed. However, my resolve to fight police brutality has never been stronger. 

First,  I had called upon our fellow members of the Harris County Criminal Lawyers Association to attend. I thought that some of our 500 plus members would want to join us in speaking out against police brutality. 

I was mistaken. Vivian and I were the only two members of the Defense Bar there.

 I have worked for a number of years to build HCCLA and  the voice of the defense bar. I am disappointed  that some of our leaders  think it's not our place to speak out against police  brutality.  Additionally, the membership's  apathy toward police brutality is also disappointing. Our clients are the victims of the brutality. HCCLA, in my opinion, is currently adrift, rudderless,  which makes me quite angry. 

There  was a large turnout at City Hall. Those, like myself, who came to speak out against police brutality were made to wait until more important topics like historic preservation and sewers were discussed. After an hour or so they finally got to us.  Reverends Dixon and Coffield were quite forceful in their presentations. Minister Muhammed was eloquent and warned that if the City did not take serious steps to end police brutality the community reaction would only get worse. Each of these men and others presented compelling arguments urging the city to take action. Quanell X was sick an unable to attend. His voice was missed. 

Unfortunately, with few exceptions mostly what we heard from Council was semi- patronizing lip service and statements about how they had done all they could do. Council Members Bradford and Jones seemed to be the only two on Council who were in touch with the community outrage. Curiously Councilwoman Wanda Adams spent much of the meeting, posturing  on her desk phone.

I spoke. I told the Mayor and Council that the Harris County District Attorney's Office were largely responsible for the problem. I pointed out that  except for rare occasion the District Attorney's Office had failed for three decades to prosecute police brutality. I urged the Mayor to contact the Attorney General of the United States and ask him to form a special task force to investigate and prosecute police brutality in Houston.

In response to my call for federal intervention,  City Attorney David Feldman pointed out that the City had already contacted the Justice Dept regarding the Holley case and  they were taking a wait and see position. I  think they  missed my point. I was not speaking about the Holley case. I was speaking about  all police brutality cases in Houston. Having pointed out the historic failings of the DA's Office on these cases, I was calling on the Mayor to call on the feds to form a task force to handle all police brutality cases in Houston. I pointed out that it took the power of the federal government to end segregation, and I believed it would take the power of the federal government to end police brutality. 

I intend to follow up with my own letters. HCCLA's leadership, members, and Council may choose to stick their collective heads in the dirt while our community suffers daily police abuse; I will not. I will not be silent on the issue of police brutality. We need strong deterrents and punishments to stop the abuse.  The longstanding history of murderous rogue cops needs to end on Our Watch. 

I don't know what the solution is. A civilian review board sounds nice - but in reality, do they really do any good? The boards tend to be made up of politically-connected folks who don't really want to go out on a limb. Even if you give the board subpoena power, what would you accomplish? Would the board be tasked with seeking out the truth - and forgoing criminal prosecution? Would the board's job be to uncover evidence and turn it over the the DA's office? Would members of the board have any idea what they were doing?

A "rogue" grand jury that was interested in investigating complaints of police brutality might be the best opportunity to bring these matters to light. Of course, since the Harris County DA's Office would then be in charge of any criminal prosecutions, it's very likely that nothing would change under that scenario. The DA's Office has shown its complete indifference toward police brutality over the years. The last thing that Ms. Lykos wants is for those sitting on jury panels to realize what happens to a person when they've pissed off a cop.

Touring the island by foot

The fog got thicker and thicker the closer I got to the coast. There were stretches of the highway that were almost pitch black.

The morning dawned but still the sun hid behind the low lying clouds. A grey haze hung over the island.

The view toward the Cruise Ship Terminal across Harborside before the marathon.

On our first leg west along the seawall you could hear the crash of the waves and the rush of water - but you couldn't see it. As one runner said - it was like being in a Stephen King novel. But alas, the sun eventually burned off the fog and the temperatures began to climb. Back up the seawall to East Beach and Apffel Park. Then toward the Strand and the start of the second loop.

For 18 miles I kept on running. Then it was time to play the survival game. The next two hours may have seemed tedious, but running a minute and walking a minute brought me home with no distress. As the race dragged on, that 60 seconds of running was, at times, painful, but that 60 seconds of walking? I was living in the moment, baby, and loving it.

As opposed to the custerfluck that the Houston Marathon resembles for the first 9 miles, the Galveston Marathon was a relaxing run. A couple of hundred brave souls ran the full route as the marathon returned to the island after a 21 year hiatus. There were a few logistical problems - but for an inaugural race I thought the organizers did a fantastic job.

I'll be back.

I'm taking my ball and going home

After a referendum in which the State Bar's proposed disciplinary rules changes were defeated by about an 4-1 margin across the board, those behind the proposed changes still don't get the message that Texas lawyers made abundantly clear over the past month.

Wallace B. Jefferson, the Chief Justice of the Texas Supreme Court is so put out that he issued the following statement:

The Court is grateful to the many lawyers who contributed their time and wisdom to proposing revisions to the Texas Disciplinary Rules of Professional Conduct. The current rules are outdated, and must be amended to account for changes in the practice and in the law that have occurred since the bar last adopted comprehensive revisions 21 years ago. We intend to ask the Bar’s Board of Directors to make prompt recommendations about a timeline for future proceedings relating to the rules. In the meantime, the Court will consider what action, if any, may be necessary to carry out its responsibility to maintain standards of professional conduct that protect our justice system and the people it serves.

Much like the intellectually bankrupt leaders of the State Bar, the Chief Justice is unable to give a cogent answer as to why the rules need to be changed. Same theme, second verse -- if you can't come up with a better reason than how long it's been since the rules were last changed, then you don't have a good reason. The Bill of Rights seems to have worked (more or less) pretty well and the first ten amendments were written some 220 years ago.

Here's a hint for you, Mr. Jefferson, if you want a rule prohibiting sex between lawyers and their clients -- put it out for adoption on its own. I guarantee that had that rule change been put to a vote on its own, it would have passed overwhelmingly.

As to Mr. Jefferson's wanting to protect "our justice system," might I remind him that the Supreme Court's primary duty is to determine who gets whose money. I'm sure that's important to insurance companies and municipalities, but it has very little consequence on our citizens who find themselves the subject of a criminal prosecution.

Finally, the leadership of the State Bar wastes no opportunity to tell us we need to preserve self-governance in the profession. Well, Mr. Tottenham, if the State Bar is our form of self-governance, why is the Chief Justice of the Texas Supreme Court saying the Court will do what it wants to do, regardless of how we feel about it?

State Bar proposals go down in flames

The results are in and the leadership of the State Bar is still trying to wipe the egg off their faces after suffering a humiliating defeat in their attempt to revise the ethics rules in Texas.

Of course State Bar President Terry Tottenham, ever gracious in defeat, intimated that the Supreme Court would revisit the issue in the future.

“Texas lawyers elected not to adopt these rules. We expect that this will not be the end of the Supreme Court’s interest in making revisions to these rules.” -- State Bar of Texas President Terry Tottenham.

Interesting how after the lawyers of Texas rebuked his attempt to ramrod the changes down their throats -- using their dues money as added insult -- Mr. Tottenham now says the Supreme Court was behind the revisions.

Mr. Tottenham, the emperor has no clothes. Your arrogance, and the arrogance of the rest of the leadership, demonstrates that you are unfit to run this organization. You spent our money to advance your agenda. You could offer no compelling reason for any lawyer in this state to support the proposed rule changes. You grouped them together as a way of trying to manipulate the vote.

Our ethics rules might not be perfect, but they have served us for the past 20 years. There is case law interpreting the rules and most attorneys in Texas have a basic understanding of what we should and should not do. Change for the sake of change is bad policy and exposes the moral bankruptcy in the leadership of the State Bar of Texas.

To the batcave, Robin

Stop me if you've heard this one before - the Houston Police Department, along with the Harris County DA's Office and MADD announced a new initiative aimed at combating that bogeyman of bogeyman - drunk driving.

The Houston Police Department's latest state-of-the-art weapon to combat drunk driving.

This time the state's weapon of choice is the BATmobile. The breath alcohol testing vehicle contains an intoxiliar machine so that the police can offer breath tests to motorists arrested for DWI on the spot. Note that I didn't say motorists suspected of driving while intoxicated. That's because in Texas, in order for a breath test to be admissible, the motorist must be under arrest at the time the officer requests a breath sample.

The breath test machine is, if you listen to prosecutors and officers, a scientific "instrument" designed to detect the alcohol concentration in someone's blood -- based on how much alcohol is in their breath. Like many sci-fi shows, you have to suspend reality to understand how this modern day relic of the alchemists works.

I don't know too many scientific instruments that labs keep in rooms such as the intox video rooms at HPD. I've always thought scientific instruments should be kept in pristine labs that are kept clean of all contaminants so that the measurements taken are as accurate as possible. But maybe that's just me.

These breath test machines are maintained by the Knights Templar of the police state -- DPS licensed technical supervisors who are supposed to perform regular maintenance on the machines and testify in court that everything is hunky-dory with the machine. But how much testing is performed to determine whether moving the machine from location to location affects its ability to do whatever the hell it's supposed to do? How much testing is performed to determine if the communications systems in the BATmobiles interferes with the machine's innards? How much testing is performed to determine if the machines are affected by the ambient air both inside the van and outside in the real world? More importantly, has the (pseudo)scientific director of the DPS approved this new initiative?

Reasonable Doubt, 2/17/2011

Tonight I'll be a guest on Reasonable Doubt on public access television (Houston Media Source) in Houston. The show is sponsored by the Harris County Criminal Lawyers Association and is hosted by Todd Dupont. We'll be talking about police brutality and the town hall meeting on police brutality held earlier this week.

Reasonable Doubt is on Channel 17 on Comcast in Houston. The show airs at 8pm. You can stream the show at http://hmstv.org/streaming.htm.

Today is your last chance to vote

Cindy Owens and Michael Villasana and their colleagues with the Municipal Justice Bar Association of Texas urge you to tell the State Bar you don't approve of their proposed changes to the disciplinary rules in Texas.

Ms. Owens is the current president of the MJBAT and Mr. Villasana is the past president of the organization.

The Municipal Justice Bar Association of Texas, is urging you to Vote 'NO' on the State Bar Referendum and will give you some reasons to do so. 

1. We are an association of attorneys who practice in Municipal Courts and Justice of the Peace Courts throughout the State of Texas and some members practice also in the area of Criminal Law; 
2. The Municipal Court practice and Criminal Law practice has historically lent  itself to Flat Fees in that middle and lower income clients need to budget for all their needs including Attorney Fees. Many hire attorneys based on the fees they will be charged and/or the reputation of the attorney to be hired. This will be next to impossible for the attorney to assist them under the new rules, where they would either have to come up with a significant retainer or the attorney will have to bill hours in the future and hope they could collect after the case is finished. 
3. Could it be that with the advent of Texas 'Tort Reform', the Civil Defense Bar is tired of being boxed into Flat Fees by Insurance Companies.

Today is your last opportunity to vote. It no longer takes a majority of the membership to adopt the proposed changes -- it only takes a majority of those casting votes. Don't allow the rule changes to take effect by your apathy.

When the best argument in favor of the changes is that the last change was 20 years ago -- there isn't much reason to vote for the proposed rule changes. The State Bar has used your dues money to launch this effort and they have used more of your dues money advocating the changes. The leadership of the State Bar doesn't care what the membership wants or thinks. It's time to let them know that we're tired of their arrogance and disdain for those of us who defend those who have no voice.

The more things change, the more they stay the same

I sat on a panel at a community meeting on police brutality on Tuesday night and listened as dozens of folks spoke of incidents in which they or their loved ones were the victims of police intimidation or brutality. One of the speakers was Janie Torres, the youngest sister of Jose Campos Torres, who was beaten by the police and then dumped into Buffalo Bayou in handcuffs back in 1977.

We heard from a young man who was working at a local grocery store late one night when the police made a traffic stop. He stopped to watch. Apparently the officer didn't appreciate someone watching him and he approached the young man -- who was wearing his work clothes. He told the young man he looked suspicious (he was sweeping around the gas pumps). He searched the young man's car - and even put a drug dog in the car - looking for anything he could use to arrest him. After trashing the car he escorted the young man inside the store and continued to harass him. The young man told the officer he had a concealed handgun license and when the officer asked for the gun, the young man pointed to his bag. The officer then took the gun and pressed it to his head before leaving.

We heard from a mother whose 52 year-old son suffered from a mental disorder. She called 911 while he was in the midst of a psychotic episode expecting a crisis intervention team to respond. The police came instead. Her son was tased 18 times before he was handcuffed and beaten. When it was all over, her son was dead. The officers had broken his neck while beating him.

Another woman told us of how her daughter, who also suffered from a mental disorder, was killed by the police as she walked down the street. Again, instead of a crisis intervention team, five patrol cars responded to the call. She was shot at close range. The official story? She had a gun. There was no gun.

We also heard from a mother whose son was involved in a car with HPD officers in 1998. When he was finally stopped, seven officers surrounded his truck and fired more than 50 rounds into the cab. She found out about the shooting while watching the news. When she asked the department what happened, no one would speak to her.

From Jose Campos Torres to Randall Webster to Ida Delaney - police brutality has been a way of life in this city for a very long time. The fact that Chad Holley was beaten by the police isn't new. The fact that there was  a video of the assault on this young man is.

The Harris County District Attorney's Office seems to think that all they can do is charge the officers involved with misdemeanor assaults. I would suggest that Ms. Lykos open up her copy of the penal code and look at Chapter 22:

AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the offense is committed:
(1) by a public servant acting under color of the servant's office or employment;
(2) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or
(3) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime.
(c) The actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant.

Mr. Holley suffered neurological damage to his face as a result of the beating. Mr. Holley was struck by a patrol car. The officers were armed. I'm curious to know if the officer who thought it was a good idea to kick Mr. Holley repeatedly was wearing steel-toed boots.

If the state wants to allege that a car is a deadly weapon in an intoxication manslaughter case, why isn't the patrol car considered a deadly weapon in this case? You can believe that if a citizen were accused of assaulting another and he was carrying a gun, he would be charged with aggravated assault -- whether or not he used the gun. But if an officer commits an assault while carrying a weapon the DA's Office just turns a blind eye, holds up their hands and claims they did all they could do.

The old saw is that the DA could indict a ham sandwich if he wanted. Since the state is the party presenting cases to the grand jury, the state decides how hard to push a case. If the DA wants a case to go away -- just present it to the grand jury and let them know the DA doesn't care if the case is indicted. Then, when the grand jury no-bills it, the DA can tell the public that she had nothing to do with the case being dismissed. Marc Brown, who presides over the 180th Judicial District Court, presented the Holley case to a grand jury. The officers were charged with misdemeanor assaults. This is the same Marc Brown who campaigned that he had integrity and was tough.

When this issue of police brutality is raised at a city council meeting, the mayor, Annise Parker, waves her hand and tells the council and the audience that a public meeting is not the correct forum to discuss police brutality. What then, Ms. Parker, is the correct forum? We all know it happens. Until we acknowledge that fact, nothing will be done to stop it.

As Robert Muhammad told the crowd "Police chiefs, mayors and district attorneys come and go, but the problem persists."

See also:

"Houston residents outraged over videos of police brutality," Reuters (Feb. 15, 2011)
"Town hall meeting on HPD violence draws hundreds," Houston Chronicle (Feb. 16, 2011)

A glimpse into the future?

If you want an idea of what a post-apocalyptical United States might look like, the kind folks with the New York State Unified Court System and the New York State Bar Association have presented a preview of how they envision New York operating under such conditions.

The New York State Public Health Legal Manual lays out the plans on how the courts and legal system will operate in New York should the area be devastated by biological or conventional attack. As a preview, if you think the courts have made a joke out of the Fourth Amendment to date, you ain't seen nothing yet.

The privacy expectations involved in an administrative search of a residence are extremely high.  See United States v. United States District Court, 407 U.S. 297, 313 (1972) [“physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”].By contrast, privacy expectations in commercial premises are “particularly attenuated” in industries that are “closely regulated.”  New York v. Burger, 482 U.S. 691, 700 (1987). Nevertheless, administrative searches of a home can fall within the “special needs exception” to the requirement of obtaining a warrant pursuant to a showing of probable cause—”where special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Board of Education v. Earls, 536 U.S. 822, 829 (2002), citing Griffen v. Wisconsin,483 U.S. 868, 873 (1987).

When it comes to allowing the government entre to your house and property, New York has it covered.

In the context of control of contagious diseases or other health hazards, facts supporting the seriousness of the threat and the need for immediate government action can justify a warrantless search. See Camara v. Municipal Court, supra, 387 U.S. at 539 [“nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations”], citing  North American Cold Storage v. City of Chicago, 211 U.S. 306 (1908) [seizure of contaminated food]; Jacobson v. Massachusetts, 197 U.S. 11 (1905) [mandatory smallpox vaccination];  Compaignie Francaise v. Louisiana State Board of Health, 186 U.S. 380 (1902) [health quarantine].

The idea is that given an outbreak of an infectious disease, agents of the government should be able to conduct an "administrative search" of your residence. If it's okay in the event of a biological attack, it isn't a giant leap to say it's okay in the event of war on American soil. Is it so hard to imagine the police conducting administrative searches in the name of "national security" in an attempt to round up anyone who disagrees with those in power?

And what if the government decides they need to take your property to "serve the greater good?" Forget about your day in court -- at least until some undetermined time in the future after the threat has passed.

The Fourteenth Amendment prohibits deprivation of property without due process of law. A pre-deprivation hearing is rarely feasible in an administrative search and seizure context where property is seized incidental to a search, especially a warrantless search based upon exigent needs; procedural due process then  must be satisfied by a meaningful post-deprivation remedy. See Gilbert v. Horn, 520 U.S. 924, 930 (1997) [“where a State must act quickly or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requisites of the Due Process Clause”]; Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 299-301 (1981) [no prior hearing is necessary when a seizure responds to a situation in which swift government action is necessary to protect  the public health and safety]. The availability of judicial actions for damages or replevin should satisfy the post-deprivation remedy requirement (and may do so even in non-emergency situations). See Hudson v. Palmer, 468 U.S. 517 (1984) [common law suit for damages sufficient post-deprivation remedy]; Parratt v. Taylor, 451 U.S. 527, 541 (1981) [same]; Smith v. O’Connor, 901 F. Supp. 644, 647 (S.D.N.Y. 1995) [meaningful post-deprivation hearings in action for damages, negligence, replevin or conversion are sufficient]; Hellenic American Neighborhood Action Committee v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) [“An Article 78 proceeding is a perfectly adequate post-deprivation remedy.”].

It's just a damn shame that pesky little 14th Amendment even has to rear its ugly head, ain't it?

After letting us know that whenever the government seizes someone's property, that someone needs to be compensated (without nearly as much profit margin as those with inside information receive when they buy up land cheaply without disclosing the pending government seizure) -- but that whole compensation thing can really tie the government's hands when they're out there doing there best to deprive the population of their constitutional rights and protections. So the good folks up in New York found a solution to that little problem.

It turns out that if your property is seized because the government thinks it's a breeding ground for whatever infectious agent is terrorizing the area, your property hasn't been seized -- because it's not even yours.

These principles, however, do not apply where the seizure of property is to address public health hazards related to the property. There is no deprivation of property rights in that context, because the ownership of property carries with it a limitation that “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.”  Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029. All property is held under the implied obligation that the owner’s use of it is not injurious to the community.  Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 491-92 (1987). The state is not required to provide compensation for the seizure of property “to abate nuisances that affect the public generally,” Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029, or “for the destruction of ‘real and personal property, in cases of actual necessity, to prevent the spreading of  a fire’ or to forestall other grave threats to the lives and property of others.” Id. at n.16, citing Bowditch v. Boston, 101 U.S. 16, 18-19 (1880). As  the Supreme Court has stated, “[S]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not taken anything when it asserts its power to enjoin the nuisance-like activity.” Keystone Bituminous Coal Association v. DeBenedictis, supra, 480 U.S. at 491, n.20. Cf. PHL § 1306(1) [“The expense of suppression or removal of a nuisance or conditions detrimental to health shall be paid by the owner or occupant of the premises . . . .”].

That's right. It's not even your property - despite what the title says and despite the fact the person who sold you the property warranted that the property was his. I don't recall anything in the paperwork when my wife and I bought our house that said there was an implied obligation that our use of the property not injure anyone else. There may very well be a legal obligation should a neighbor file suit because your allowing a heavy metal band to perform at midnight every night infringes upon their quiet enjoyment of their property - but that's a different beast than the government taking your property because of an alleged public health matter.

It would appear that some folks have forgotten that the Bill of Rights was drafted with the specific intent of limiting the power of government to meddle in people's lives. So what if the 14th Amendment requires that a property owner be afforded due process before the government can seize his property -- the government exists to serve us, not the other way around. People are real. The land is real. The state is an artificial creation.

And what plan by the bar would be complete without some provision for how legal proceedings will be carried out? What if, shall we say, someone brought before the court has an infectious disease?

Where the presence of a participant who has a contagious disease occurs, and the court determines that the hearing of the case cannot be postponed, protocols are currently in place for addressing the health threat. Where the disease is transmitted by a blood-borne pathogen, court personnel may wear protective gloves; where the disease is transmitted by an air-borne pathogen, court personnel may wear respirators. This equipment is already available at many courthouses. However, the wearing of respirators by the multiple participants in a courtroom setting would  no doubt be disruptive to the proceeding, and courts may have  to explore alternatives, such as requiring the infectious person to wear the respirator or isolating an infectious litigant in a separate room with an audio-visual connection to the courtroom.  Cf.  Illinois v. Allen, 397 U.S. 337, 342-43 (1970) [the right to be present at trial is not violated where a trial judge removed a criminal defendant from the courtroom for disruptive behavior].

Confronting your accusers? Whoever heard of such a ridiculous notion? Let's just toss the poor fool in another room, isolated from his attorney and from the court proceedings themselves. There's no need for him to be able to communicate with his lawyer, there's no need for him to be able to see the folks testifying against him in the flesh.

The New York plan is clear in its goal -- in the event of a disaster, the state shall survive. We don't know about the people, however.

An appeal to the other side of the well

I'm addressing this post to my colleagues "across the well" who work as prosecutors in the State of Texas. The proposed changes to the disciplinary rules have absolutely no bearing on how y'all conduct business. But I know that many of y'all will one day leave the DA's office and hang out your own shingle. Some of y'all will come over to the side of the angels and practice criminal defense. Others will go into other areas of the law.

Once you've left the employ of the government, the disciplinary rules will become a reality. If y'all haven't voted because you don't see how the rules would have any effect on your job, please consider what you and your colleagues may do down the road.

If you  go into criminal defense, the assault on the flat fee is going to affect you. You will find that out the first time you take on a client who can't pay your fee in full - or the first time you file a motion to withdraw because a client has decided not to pay you.

If you go into the civil arena (be sure to watch your back, because you never know whose knife is there), the rules on conflicts are going to become your own personal living hell when you try to determine if you can take on a new client.

There aren't too many issues on which we can fight alongside each other. This, however, is one. If you haven't voted, or if there are others in your office who haven't voted yet, please take the time to do so. Your ability to make your voice heard will end at 5:00 p.m. on February 17.

Adding insult to injury

It's not enough that the State of Texas took 18 years away from Anthony Graves for a crime he didn't commit. Now Susan Combs, the state comptroller, has decided Texas will not reimburse Mr. Graves for the years he spent behind bars.

The state calculated that 18 years of Mr. Graves' life was worth about $1.4 million. But then Ms. Combs decided that because the order releasing Mr. Graves didn't state that he was innocent that he wasn't entitled to one red cent.

If you'll recall, Mr. Graves was convicted of capital murder in 1994 but that conviction was overturned by the US 5th Circuit Court of Appeals in 2006 on the grounds that the prosecutor failed to disclose exculpatory material to the defense and relied on perjured testimony. The state was prepared to retry Mr. Graves in 2010 but the charges were dismissed in October and Mr. Graves was ordered released.

The man responsible for robbing Mr. Graves of his liberty, Charles Sebesta, is still practicing law with very little chance the State Bar will ever disturb him.

The irony is that the current District Attorney for Burleson and Washington Counties, Bill Parham, acknowledged Mr. Graves' innocence when he and Kelly Siegler stood around soaking up praise for (finally) doing the right thing. Apparently that's not enough for Ms. Combs.

Mr. Graves can't go to Governor Goodhair for a pardon because he would have to admit he was guilty -- which we all know he isn't.

So, Bill and Kelly, if you really want to deserve the unearned praise you received, now's the time to do the right thing and petition for Mr. Graves to be compensated for the years he lost.

Time's running out to vote on rule changes

At 5:00 p.m. on February 17, voting on the proposed changes to the Texas disciplinary rules will come to an end. I'm fairly certain that most of the folks who plan on voting have already done so -- but I'm sure there are a few stragglers out there who haven't taken the time to vote yet.

Mark Bennett and I have written extensively about the proposed changes, but here are some more voices you might not have heard:

Jon Malone --

1. "The rules are poorly drafted, not needed, and benefit  neither  lawyers , clients nor the citizens of the State of Texas, for whom these rules were ultimately designed to protect.

    2.    The  State  Bar officers are lobbying and using their positions of power to affect the outcome of
            the vote on these matters, - a clear conflict of interest;

    3.    The State Bar is using funds obtained by our membership fees to lobby on political issues-
            an inappropriate and offensive use of  public funds."

*****

Michael J. Whitten --

"These proposed amendments, in my view, will be expensive to implement and do not really address anything that is a problem. The proposals are a classic example of appointing a committee to address a 'problem' and the committee feeling compelled to come up with a solution to the 'problem,' without having any empirical data to evaluate the degree and extent of the perceived problem."

*****

H. Deloyd Bailey --

"While we may need some revisions in our current rules, I agree that overall this fix flies in the face of the sage advice, 'If if ain't broke don't fix it.'"

Time's running out. If you haven't already voted, please cast your NO vote now. Don't be apathetic. Don't wake up one morning and wonder what the hell happened to the disciplinary rules. This is our chance to make our voices heard.

Making sausage

In the past week both Mark Bennett and I have written about the op/ed piece written by HCCLA Vice President Chris Tritico regarding the release of the videotape showing officers with the Houston Police Department beating a teenager lying on the ground.

In his piece, Mr. Bennett alluded to the fact that members of HCCLA's Executive Board are defending some of the officers accused of beating Chad Holley. Mr. Bennett seemed to be implying that there was a conflict of interest in the decision to submit the op/ed piece and that members of the Executive Board were using HCCLA to promote their own agenda.

But the lawyer for one of the police officers shown on the video is HCCLA’s President, and HCCLA’s President-Elect and Immediate Past President have a contract to defend police officers against criminal charges. So they pick whatever is behind door C.

I must admit that the same thought crossed my mind when I read Mr. Tritico's op/ed piece.

I can tell you that Mr. Bennett is barking up the wrong tree in this instance.

I'm a member of the board of directors of HCCLA - but I am not a member of the Executive Board, so I wasn't privy to the goings-on behind the curtain last weekend.

Here's what happened. A member of the board approached the Executive Board and suggested that HCCLA should take advantage of the release of the video and issue a statement indicating our opposition to police brutality. The members of the Executive Board discussed the matter and when the decision was made to go forward with the op/ed, the members of the Executive Board who were representing officers accused of beating Chad Holley recused themselves from any further discussion. That left Mr. Tritico to write the op/ed piece. With no other members of the Executive Board taking part in the discussion (for unknown reasons), Mr. Tritico wrote the piece and submitted it to the Houston Chronicle without any input from any other member of the organization.

I'm not going to rehash my criticism of the article because I don't think Mr. Tritico had any ulterior motive when he wrote the piece.

The playlist for trial prep

It's time for some serious trial prep.  I'm in a jazz mood today so here's what I'm listening to as I put together my trial notebook and materials:



Dave Brubeck



Charlie Hunter



Medeski, Martin & Wood



Weather Report



John Scofield

Enjoy.

Can't we all just be friends?

If you're a judge, is it okay for you to set up a Facebook page and "friend" lawyers who appear in your court?

If you're in Florida, the answer is no.

According to the Judicial Ethics Advisory Council,

With regard to a social networking site, in order to fall within the prohibition of Canon 2B, the Committee believes that three elements must be present.  First, the judge must establish the social networking page.  Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member's page.  Third, the identity of the “friends” or contacts selected by the judge, and the judge's having denominated himself or herself as a “friend” on another's page, must then be communicated to others.  Typically, this third element is fulfilled because each of a judge's “friends” may see on the judge’s page who the judge’s other “friends” are.  Similarly, all “friends” of another user may see that the judge is also a “friend” of that user.  It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

Florida's Canon 2B reads:

A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

The opinion goes on to say that it is not the act of "friending" on Facebook that violates the rules, it is the appearance that such conduct might lead one to believe a special relationship exists between the judge and his or her "friends."

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

But, assuming a judge being "friends" with lawyers on a social networking site violates ethics rules in Florida, would such conduct violate the rules in Texas?

Canon 2B of Texas' Code of Judicial Conduct reads:

A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Now, let's be honest. We all have "friends" on Facebook that we don't know or haven't had any actual contact with in years. I'm "friends" with a bunch of folks I went to high school with that I haven't seen or talked to in 25 years. Just because you're "friends" with someone on Facebook doesn't mean that person has any special pull.

Judge Susan Criss in Galveston and I are "friends" on Facebook. I practice in her court. I have no special privileges when I set foot in her courtroom. Judge Criss posts pictures of the sun setting over the island and of her dogs chewing up her slippers. It's funny.

I'm not concerned about a judge and a lawyer being "friends" on a social networking site. That doesn't convey, to me, the appearance of impropriety. But what about lawyers and firms who donate money to judicial campaigns? The names of those donors are not readily available (though they are included on campaign finance reports filed with the state).

Judicial elections are a necessary evil in Texas - it's a bad system but it's better than any alternative. If being "friends" on Facebook is a sin in Florida, what about donating money to judicial election campaigns? Which is likely to have more influence? I'm not saying that just because an attorney or a firm donates money to a campaign that they will receive special treatment in that court (or the converse), but if we're talking about appearances...

Back to the schoolhouse

A few weeks ago I wrote about the Texas Appleseed report on school districts farming out their disciplinary problems to the criminal (in)justice system. It seems as if at least one state legislator, Armando Walle (D-Houston) paid attention to the report.

According to the Texas Tribune, Rep. Walle has introduced three bills regarding the ticketing of school children. One would allow students to pay their fines through community service or tutoring. The others would require school districts to keep data on the citations issued to students and would require school districts to offer specialized training for officers.

While these bills may be a first step in the right direction - they fall far short of fixing the problem.

If we are going to allow our schools to place juveniles in the criminal (in)justice system for misbehavior on campus, it should only happen for specific offenses such as fighting and possessing weapons or drugs.Disrupting class is much too vague a concept for a student to face criminal charges. Disrupting class is something that should be handled on campus through a suspension or detention program.

Fighting, on the other hand, is an actual criminal offense; as are possessing weapons or drugs.

Rep. Walle's proposals also fail to address the burden placed on parents when a school issues a citation to their child. A parent is required to accompany the child to court (while school is in session). Should the child be required to perform community service, the parents will be required to drive the child there and back again. If a fine is levied, guess who will be opening up the checkbook?

What happens if both parents work? What if one parent stays at home with younger children or older parents? The parent didn't do anything - yet the parent is being punished.

It is time we stop the outsourcing of discipline by schools. It's time school districts disclose to parents the consequences of ticketing students for disciplinary problems. It's time we stop looking for excuses to force people into the criminal (in)justice system.

Casting a light on the underbelly of the city

For months the Harris County District Attorney's Office fought to prevent the video of Chad Holley being beaten by members of the Houston Police Department from the public.

I'm a criminal defense attorney. It's my duty to defend the Constitution - regardless of how unpopular the cause might be. Some of my colleagues are defending the officers accused of beating Mr. Holley while he was down and defenseless.

One of my colleagues, Mr. Chris Tritico, wrote an opinion piece for the Houston Chronicle yesterday in which he argued against the release of the video. He argued that the video should have been kept under wraps until the officers stood trial for their alleged misdeeds.

I was as disturbed by the images on the Holley video as anyone. That is why Harris County District Attorney Pat Lykos got it right the first time. This video should have been seen for the first time in the courtroom. The court of public opinion is not the place to try these officers or anyone else.

Unfortunately Mr. Tritico aligned the interests of the Harris County Criminal Defense Lawyers Association (of which I am a boardmember) with that of the Harris County District Attorney's Office. Ms. Lykos did not "get it right" when she fought tooth and nail to prevent the public from seeing that video. Ms. Lykos wasn't concerned with whether or not the officers involved received a fair trial. That's never been the concern of the DA's office.

Ms. Lykos was scared of how the public would react to seeing what those of us in the courtroom know happens more often than anyone cares to admit. She was scared to death of how the public would react to the knowledge that those who are sworn to protect us and uphold the law are a lawless force unto themselves. She was scared that juries, having seen the video, would believe defendants who testified that they were beaten by the police. She was scared that juries wouldn't give the boys in blue the benefit of the doubt when questions arose regarding the legality of a search. She was scared juries wouldn't put their blind trust in the testimony of a police officer on the witness stand.

The release of this video, its airing and the rush to judgment by those who know better is a direct assault on the Bill of Rights. Lawyers on both sides of the docket have opined after the video was made public that these defendants will have a hard time getting a fair trial now. They are absolutely right.

The airing of the video is not an assault on the Bill of Rights. The video was obtained through the discovery process in a civil proceeding. A private citizen provided local television stations with copies of the video. The video ran on the evening news. There was no state action to deprive the officers of their right to a trial by a jury of their peers. There was no illegal search. The officers' right to remain silent was not violated.

A civil judge need not be concerned with the goings-on at the criminal courthouse. A criminal judge has no more authority than a civil judge.

The assault on the Bill of Rights is a daily battle fought at 1201 Franklin. The police, prosecutors and judges are all complicit in laying siege to our constitutional rights.

Our Constitution will be rendered a nullity the day that we take away any of the rights given to the people simply because we do not like what someone has been accused of doing. This includes the right to a public trial by an impartial jury and the fact that everyone accused of a crime is presumed innocent until proven guilty by that same impartial jury.

Our Constitution will also be rendered a nullity should we decide to ignore the First Amendment because the information may not be favorable to our position. Outside a protective order in the civil case, no agency of the state had any authority to prevent the video from being shown on the local news.

And, make no mistake about it, this is news. From a young age we are told the police are here to help and protect us. Most folks still believe that. Those of us who work in the trenches know the truth. We know that officers lie under oath. We know that officers plant evidence. We know that officers bend the truth in their offense reports. We know that officers beat and kill people. It's an ugly truth. It's a truth that I fight with when my daughters ask me about the police. If no one trusts the police society begins to break down.

I can assure Mr. Tritico that there will be twelve citizens who have no clue whatsoever what happened to Mr. Holley. There are plenty of people in this city who haven't the slightest idea what's going on outside their little bubble.

Lest anyone be confused, although I serve on the board of the HCCLA, in no way do I represent that I speak for the organization. I speak for myself.

Leading the lambs to slaughter

I was in County Court No. 2 in Galveston County this morning to file a motion and discuss a case with the prosecutor. Despite taking my time getting on the road, I managed to find my way into the courtroom at docket call.

And that's when it happened.

Something that was so jarring. Something that didn't sound right as soon as the words hit your ears.

A defendant answered the docket call. Judge Barbara Roberts (one of the new judges swept into office this past November) asked him if he had an attorney.

The gentleman said he did not.

"Would you like to speak to the DA?" came the question from the bench.

The man said he would. The judge asked him to come up front to see the clerk. When he got there the clerk handed him a waiver of rights

She never informed him that he had a right to counsel. She never informed him that if he couldn't afford an attorney he could petition the court for appointed counsel. She never informed him that the prosecutor did not represent him. She never informed him that anything he said to the prosecutor could be used against him.

In short, she failed to admonish him properly.

She failed to perform her job which is to sit as a neutral and impartial arbiter and to see that a criminal defendant's rights are not violated in her court.

Here's an idea for limiting government

Courtesy of Grits for Breakfast, here's the Texas Public Policy Foundation's Legislator's Guide on Overcriminalization.

Texans once lived under a criminal code that resembled the Ten Commandments. Today, nearly 10,000 federal, state, and local offenses confound more often than command, diluting the traditional focus of criminal law on truly wrongful conduct. 

According to the TPPF, there are 254 traditional criminal offenses on the books in Texas -- theft, assault, burglary, murder, etc. There are almost 1500 other criminal offenses found outside the penal code - most of them being regulatory offenses. Many of which are strict liability crimes -- something our founding fathers frowned upon.

Traditionally in criminal law there must be both a bad act and an intent to commit that act in order for their to be a crime. Most crimes require the state to prove that a person acted intentionally, knowingly, recklessly or negligently before that person can be convicted. But when it comes to regulatory crimes, the state need not worry about proving any kind of intent. If it happened, someone's in trouble.

Much the same idea can be seen in traffic offenses. The state doesn't have to prove you intentionally, knowingly or recklessly exceeded the speed limit; they only have to prove that you did it. In traffic cases, however, the worst thing that can happen is your wallet is lightened.

Among the TPPF's recommendations for the upcoming legislative session are the following:

• Refrain from creating new criminal offenses, especially those regulating non-fraudulent business activities;
• Eliminate possibility of jail time for first-time conviction of a regulatory misdemeanor;
• Ensure that an appropriate culpable mental state is included in the elements of offenses; and
• Amend the Code of Criminal Procedure to allow for citation without arrest for additional misdemeanors and prohibit arrest for regulatory Class C misdemeanors, unless the suspect ignores the citation. 

We don't need to create new criminal offenses in response to every perceived wrongdoing. Not everything that goes wrong is the result of a criminal act. Sometimes, things just happen.

We certainly don't need to find new and creative ways to get more folks ensnared in the criminal (in)justice system. If anything, we need to find ways to keep people out of the courts.

Bargaining power

Hosni Mubarak's pledge that he will step down at the end of his current term is akin to the jailed defendant who asks you to tell the prosecutor that he will gladly take six months county time on his felony dope case today.

The prosecutor's answer? "I'm sure he would."

I think it's time that Mr. Mubarak took the hint and stepped down now before Egypt falls into anarchy. Should that happen, the military is ready to swoop in and take control.

Were the rolling blackouts necessary?

For those of y'all who endured the rolling blackouts in Texas on Wednesday morning, here comes word from Tom Fowler (of the Houston Chronicle) that there may have been no need for them after all.

These numbers are not exact, but here’s the math:

• Texas has about 72,500 megawatts of power plant capacity.
• ERCOT told me about 12,000 megawatts of capacity was offline going into Wednesday for regularly scheduled maintenance. This is work that has to be pre-approved weeks or months in advance. It usually happens in the cold-weather months.
• That means about 60,500 megawatts of power were expected to be ready to go on Wednesday.
• The projected peak demand for Wednesday morning was 57,200 megawatts. That means there was a 3,300 megawatts cushion, or a reserve margin of about 5.7 percent.
• If you add the two demand-response programs ERCOT has, where large power users agree to shut-down in an emergency (which appears to be about 1,400 megawatts) you get about 4,700 megawatts or a reserve margin of about 8.3 percent.

Losing 7,000 megawatts of capacity — about 11.5 percent of what was expected to be online — is certainly unprecedented and unexpected. But was ERCOT operating under an unusually low reserve margin going into Wednesday?

According to a report from the North American Electric Reliability Council – a quasi-private entity that oversees all of the country’s power grid operators — ERCOT’s winter maintenance was not expected to top more than 4,568 megawatts at any one time this winter. If that was the case, ERCOT would have had about 10,700 megawatts of capacity in reserve,or a reserve margin of 18 percent.

So what was really going on Wednesday morning?

Is it a case of ERCOT mismanaging the grid? Was it an attempt to manipulate the market? Was it a conspiracy by either providers or transmitters to force through rate increases? Or was it simply an overreaction to a problem that should have been anticipated?

One thing is for certain - there was ample warning of the Arctic storm that hit Texas.

For ERCOT's side of the story, click here.

Snowmegedden it wasn't

The ominous warnings of one to three inches of fluffy white stuff in Houston failed to come to fruition. Instead we got ice -- lots and lots of ice.

And so I spent Friday morning at home with my wife and girls hanging out and making crafts and then headed to the office to clean up and pull a couple of files.

The picture you are seeing is what's left of my youngest daughter's pine cone bird feeder - the peanut butter and bird seed were a hit with both our feathered and furry friends - with a healthy coating of ice on top.

Open-faced sandwich, anyone?

As I was perusing the blawgosphere this morning, I came across an interesting piece written by Scott Greenfield about the era Scott refers to as the Dropsy Days.

Dropsy was when a police officer merely approached a person, without any questions or commands, and, inexplicably, the person would let a package whose contents were unknown fall from his hands to the ground.  He would drop it.  By doing so, he abandoned it, thus removing it from the purview of the warrant clause, whether state or federal.

The officer would then reach down, having seen the "thing" fall from the person's hand to the ground, and pick it up.  He would look at it.  He would know, based on his training and experience, that it contained contraband.  He would seize the package, and the person who inexplicably abandoned it on the ground.  

This happened in case after case, defendant after defendant, day after day.  It was incredible!  Didn't these criminals ever learn?

Down here in these parts the days of suspects conveniently dropping their dope has been replaced with suspects conveniently leaving their dope out in plain view either in the front seat of their car or on the floorboard.

Here are a few examples from actual offense reports:

"I returned to the driver's side of the Ford to try and located [sic] any insurance paperwork, at which time I observed a small beige piece of rock lying on the floorboard between the driver's door and the driver's seat."

"Officer S---- advised he observed two loose beige colored rocks to be on the floor board between the driver seat and the driver door, in plain view as the driver door was ajar."

"During an over view of the interior of the [vehicle], I saw a small off white rock like substance I believe to be crack/cocaine on the passenger side floor board in plain view."

"As I opened the back left passenger door, I immediately observed a small beige colored rock lying in plain view, on the left rear seat cushion."

Of course everyone gives verbal consent to search their car. The officer is never searching the vehicle, he's conducting an inventory of the contents of the car. And there's always a reason for stopping the driver -- usually something along the lines of he failed to signal his intent to turn at least 100 feet prior to turning. (That's an actual traffic offense in Texas.)

Dropsy is dead! Long live Dropsy!