Tuesday, May 31, 2011

Contaminated with bias

After you consume alcohol, your body begins the process of absorption and then elimination. The alcohol is absorbed by the blood through the intestinal tract and is eliminated through excretion (sweating, exhaling) and metabolism.

Breath test machines work on the principle that the amount of alcohol you excrete through exhalation can be used to estimate the amount of alcohol in your blood. It is an indirect method of determining whether someone is over the legal limit of .08 grams per 100 milliliters of blood.

The more direct method, of course, is blood testing. Even blood testing is not a direct method, however, because what's actually tested in the chromatograph is the headspace gas in the blood tube.

As blood is fragile, care must be taken to preserve samples. Anticoagulants are added to the tubes to prevent clotting and an antiseptic cleaner is used around the blood draw site to prevent bacteria from infecting the person or the blood sample. The blood must also be refrigerated to prevent the growth of little yeasts called candida albicans which can cause the blood sample to ferment in the tube.

What can't happen in that blood tube, though, is the elimination of alcohol for there is nothing to metabolize it. If the blood is collected and stored properly, the sample should yield approximately the same result any time you choose to test it. It is in a state of vacuum.

Unless, of course, you're the Texas Department of Public Safety and you have to explain why some blood samples that tested over the legal limit later yielded results (when tested by a private facility) that were below the legal limit.


Keith Gibson, the Quality Manager for the DPS lab on Jones Road in Houston had a problem. It seems that when a private lab retested a sample of blood from a DWI case, the result came in quite a bit below what the DPS test said. Mr. Gibson wrote that he didn't want to issue a Quality Assurance Report because one of the samples came out below the legal limit on retest. He just wanted to draft a "deviation" so it could be brushed under the rug.

Forrest Davis, the Quality Assurance Coordinator for the DPS, agreed. He didn't like the idea of a Quality Assurance Report because the data from the retests would be included in it. Better just to pretend it never happened, right? Interestingly enough, Mr. Davis did note that the retest did not include any volatiles that would have suggested a degradation of the sample.

Junk science is still junk science, no matter what you call it.

Crime labs should not be under the control of the police or any agency involved in the investigation or prosecution of crime. These labs should be under independent control to remove the inherent bias found in crime labs run by the police.

Monday, May 30, 2011

All the king's horses...

vic·tim   noun \ˈvik-təm\
: a living being sacrificed to a deity or in the performance of a religious rite: one that is acted on and usually adversely affected by a force or agent : as(1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 
Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

Friday, May 27, 2011

Another dirty job

This past Thursday I had to appear in Montgomery County to enter my grandmother's will into probate. Since I also had to appear for a colleague in a justice of the peace court in Magnolia, I decided to spend the time in between at my parents' place.

A few months back a storm blew down an oak tree in my parents' backyard. My dad, knowing my love of smoking meat, asked me if I wanted any of the wood for my pit. Of course I said "Yes." He told me I could come up anytime to get what I needed.

So Thursday was the day.

Now I've never probated a will before - and, had there been anything screwy about this one I wouldn't have touched it. When we got into the courtroom we sat down. I'd read the State Bar's probate book and was familiar with the questions I was supposed to ask - but I wrote some of them down as a cheat sheet. Not knowing the local customs in these matters I turned a keen ear to every proceeding. Our little hearing didn't go as smoothly as I'd hoped, but we got out of it in one piece with the mission of the morning accomplished.

Then it was off to my parents' house and that oak tree. It had already been sectioned so all I had to do was split how ever many sections I wanted. I took one chisel and seeded it and then I took the other chisel and did the same thing. Then I lifted the sledge hammer and pounded each chisel - first one and then the other. After a couple of strikes the most amazing thing happened.

As the wood began to split I could hear the sound of the wood splitting long after striking the chisel. It was a steady sound as the force of the blow was carried deep into the section of wood.

It was hard work. I was sweaty and dusty. My hands blistered. My back and shoulders sore. But I had a trunk load of oak for my pit. It was another "dirty job." There was a starting point. There was an ending point. And there was evidence that I had actually accomplished something in the meantime.

It was a nice change of pace from the law - where you're never really sure at the end of the day just what, if anything, you did accomplish that day.

Beer lovers hosed again

If you're a fan of bland beer with little taste but a lot of marketing oomph, you should be happy that HB602 failed to be offered up for a vote in the Texas Senate.

But, if you're a fan of unique, handcrafted beers and ales made here in the Lone Star State, consider yourself screwed (again).

HB602 would have allowed craft breweries to offer beer for sale to folks who tour the brewery. Sounds pretty harmless, does it not.

Apparently not to the big bad boys at Anheuser-BuschInBev who lodged a last minute objection to the bill. The big boys weren't happy that they would not be allowed to sell beer at their brewery factory. Of course they don't offer tours to show folks how they butcher the world's most beautiful beverage.

As you can see from the witness list, the only witness opposing the bill was Anheuser-Busch.

The purpose of the bill was to help promote craft breweries in the state. You know, more people buying beer that's made in Texas, boosting the local economy, all that good stuff. Of course, if more people drank craft beers then fewer people would drink that watered-down, tasteless, wretched brew made by the boys from St. Louis.

And what would be wrong with that?

Thursday, May 26, 2011

A little of this and a bit of that

Here are a few odds and ends you might find interesting:

Bradley out as chairman of forensic commission

Williamson County District Attorney John Bradley's stint as chairman of the Texas Forensic Science Commission has come to an end as the senate concluded its session without voting on whether to accept Gov. Perry's nomination of Mr. Bradley.

Gov. Perry appointed Mr. Bradley to chair the commission in 2009 prior to a scheduled hearing in which the commission was to take testimony from Craig Beyler about the flawed science used by arson investigators that led to the execution of Cameron Willingham.

During his time as chairman, however, Mr. Bradley accomplished the fair haired governor's wishes to delay the release of the committee's findings until after the 2010 gubernatorial election.

Patrick cowers in fear

Texas State Senator Dan Patrick has once again proved himself to be a big bag of hot air as he withdrew his bill that would have criminalized groping by TSA personnel in airports. Mr. Patrick ran and hid in a closet after receiving a letter from the United States Attorney for the Western District of Texas threatening that TSA might cancel flights in Texas should the legislation pass.

Every year on the Fourth of July, Mr. Patrick rides in a car at the Memorial Villages 4th of July parade; and every year my wife gives me an ugly face when I mock Mr. Patrick in front of my daughters. Certainly my lack of civility and uncouthness is far worse than Mr. Patrick's demagoguery.

One wonders, was Mr. Patrick worried that the bill might actually pass?

If Mr. Patrick is so concerned about privacy issues for airline passengers, why isn't he concerned with the steady erosion of the 4th Amendment?

Wanted man

John Joe Gray is on the lam for allegedly assaulting a peace officer in December 1999. He was bonded out of jail a few days later and never appeared in court. He has lived on his armed compound in Henderson County, Texas with his family ever since.

Years ago he warned local law enforcement officials to bring extra body bags if they wanted to capture him. The local sheriff has said he's not risking the lives of any officers to bring in Mr. Gray.

When the rules don't apply to the rulers

Dennis Levine.
Ivan Boesky.
Raj Rajaratnam.

All charged with and convicted of insider trading.

But what about our elected representatives in Washington, D.C.? You know, the ones who sit on committees that draft and pass legislation that affects every sector of our economy. The ones who know what legislation is coming down the pipe and the likely effect it will have on various sectors of the economy, or even particular companies.

You know, those men and women who prostitute themselves for campaign contributions 24/7. The ones who takes piles of cash from PACs representing trade associations and companies.

They have investments. They buy and sell stocks and bonds and other investment vehicles at the same time they are debating legislation.

Here's a bill regulating greenhouse emissions. Here's a bill regulating offshore drilling. Here's a bill regulating fuel economy in cars. Here's a bill authorizing the building of a dam or a highway. Here's a bill raising the minimum wage. Here's a bill mandating certain health benefits in standard insurance policies. Here's a bill authorizing tax credits for certain investments.

Guess who's trading on that information? Guess who's making trades that outperform the market?

It ain't Mr. Smith.

So it's against the law for an individual to make trades based upon information he obtained that was not available to every other potential investor, but it's perfectly okay for a congressman sitting on a committee regulating a particular industry to make trades based upon legislation that is up for consideration.

Wednesday, May 25, 2011

Court limits comparison of burdens of proof

In order to obtain a conviction, the state must prove a person committed each and every element of a criminal offense beyond a reasonable doubt. Nothing new or earth-shattering there. It's one of the first concepts in criminal law that we are taught.

But what is beyond a reasonable doubt? There is no legal definition of the term in Texas. In fact, it's a bit like pornography -- the jurors will know when they see it.

The prosecutor likes to tell the jurors that proof beyond a reasonable doubt does not mean proof beyond all doubt. Fair enough. But where does that put the line?

We have a multitude of levels of proof. A police officer must have probable cause to arrest someone. There must be probable cause to support a warrant. A grand jury must find there is probable cause to believe the defendant committed a crime in order to vote to indict him.

Over at the civil courthouse money is awarded if a plaintiff can prove his claim by a preponderance of the evidence. The judge will even tell the jurors that a preponderance of the evidence just means more than 50%. A "feather's worth" of evidence can be enough to send a plaintiff out of the courthouse with a smile on his face or a frown.

Want some expert witness testimony to support your theory of the case? You'll need to prove that your witness is an expert by clear and convincing evidence. If the state wants to remove a child from a custodial parent, the state will need to make its case by clear and convincing evidence. Clear and convincing evidence is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established."

But what if the state wants to infringe upon the liberty of one of its citizens? Back in 1991, the Texas Court of Criminal Appeals decided how the term beyond a reasonable doubt was to be defined in Geesa v. State, 820 SW2d 154, 162 (Tex.Crim.App. 1991):
Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
This definition was cobbled together from the Texas Penal Code and the instructions given in the federal system. The CCA held that this definition was to be included in every criminal jury charge regardless of whether the defense requested it.

Nine years later the CCA decided that what it giveth, it can taketh away, too, as the judges held that the Geesa definition was serving only to confuse jurors. In Paulson v. State28 SW3d 570, 573 (Tex.Crim.App. 2000). 

So, what is a criminal defense attorney to do when there is no definition of the term of art by which a jury decides whether to brand someone as a criminal for life? You compare the various levels of proof. You "walk up" the levels of proof to demonstrate to the jurors how high the state's burden is. You compare preponderance of the evidence to clear and convincing evidence to beyond a reasonable doubt. You get the panel talking about what quantum of proof they would require in order to find someone guilty.

Unless the judge decides you don't get to. In Anderson v. State, No. 07-10-1039-CR (Tex.App.--Amarillo 2011), the Amarillo Court of Appeals decided that it is not a per se abuse of discretion if a trial judge does not permit a defense attorney to question the potential jurors about the differences in the burden of proof between a civil case and a criminal prosecution.

Now I have plenty of colleagues who would argue that it's not a good idea to use the stair-step model of the levels of proof during voir dire because it might convey to the jury that you can just "add up" the evidence to determine whether the state has met its burden. The stair-step model also doesn't do a good job of demonstrating the vast gulf between probable cause and proof beyond a reasonable doubt, and could serve to reduce the quantum of proof a juror would require to return a guilty verdict.

However, most of our clients start off (way) behind the eight-ball at trial and taking away the ability to compare the various levels of proof only serves to limit further the ability to provide an effective defense at trial. The Amarillo Court seems to have forgotten that those on trial are innocent unless proven guilty and that the courts should bend over backwards to ensure that they enjoy due process of law.

If you're not going to define the term by which we ask jurors to find folks guilty, then you sure as hell shouldn't limit the ability of defense counsel to demonstrate to potential jurors just how high the state's burden should be.

Tuesday, May 24, 2011

So long, cowboy nuns

This is a real bummer. The Monastery of St. Claire, located just outside of Brenham, Texas, is closing its gates for good this weekend. Why's that a big deal, you ask?

Because of these little guys. The nuns at St. Claire ran a horse farm and raised miniature horses that grew up to 36 inches tall.

The monastery and horse farm were a great stop on a one-day road trip to Brenham. We'd start off at the restaurant at the Brenham municipal airport (a 50's style diner), then head over to the Blue Bell creamery for a tour and a bowl of the world's greatest ice cream before ending our adventure at the monastery looking at the miniature horses.

But now that there are only two nuns left at the monastery (something that tends to happen to celibate societies who don't attract new members), the farm and horses have been sold. The last day to see these wonderful little critters is this Saturday.

In the meantime, I'm trying to fit a drive out to Brenham into my schedule on Friday afternoon.

Failure to yield the right of way

Look really hard. Read every word. I guarantee you won't find the words "finality" or "closure" in the Bill of Rights. Not in the 4th Amendment. Not in the Fifth. Nor the Sixth or Eighth Amendments.

The state, and the judiciary, seem to think that the concept of "finality" is inherent in our system of (in)justice.

There is no sanctity in the concept of finality. And when the currents of justice and finality intersect, finality must yield the right of way. Jeff Gamso writes about a gentleman named Ezell Gilbert. Mr. Gilbert, it seems, made some bad choices and found himself in the federal penitentiary. The length of his stay was determined by a judge drawing lines on a matrix based on a finding that Mr. Gilbert was a career criminal. Mr. Gilbert protested, to no avail, that he was not a career criminal and that the sentence was 8 1/2 years too long.

Fast forward ahead 11 years and the US Supreme Court decided that another individual's sentence was determined incorrectly based on a finding that he was a career criminal. Mr. Gilbert filed a writ seeking a reduction in his sentence based upon the finding by the nine in black.

A panel from the 11th Circuit Court of Appeals heard Mr. Gilbert's appeal and found in his favor. The state asked for a hearing in front of the entire court. Last week, finality failed to yield the right of way and Mr. Gilbert was denied relief.

In a blistering dissent (and should there be any other kind?), Senior Judge James Clinkscales Hill called out his colleagues for allowing finality to trump justice.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity. 
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
The same argument can be made about this idea of "closure." There is no such thing as closure.

Whatever happened, happened. And nothing can change that fact. If someone was the victim of a criminal act, they can't erase that. If anyone has ever had a friend or loved one killed, there will never be closure. Everyday is a new day to remember that someone isn't around anymore. Nothing that happens to the person convicted of the crime is ever going to change that.

The notion that somehow the need for "finality" and "closure" trumps the fact that we are all entitled to due process of law and the protections of the Bill of Rights is an insult to everyone who has fought to defend our freedoms and liberties in any forum. From the bench, it is an excuse for the unwillingness of the judiciary to ignore the denial of due process.

Mussolini made the trains run on time. So fucking what. Do you want cruel and ruthless efficiency or do you want justice?

Justice and freedom aren't very tidy concepts. They don't lend themselves to efficiency. But there are things more important than whether the trains run on time. Or whether we have "finality."

Monday, May 23, 2011

Stuffed to the gills

Forget about all that 6th Amendment nonsense about the right to counsel, Harris County has decided that's not nearly so important as cramming as many pre-trial detainees into the Harris County Jail in order to coerce guilty pleas.

From: Armand, Stephanie (DCA)
Sent: Friday, May 20, 2011 2:50 PM
To: DC Criminal Coordinators (DCA)
Cc: DeLeon, Sisto (HCSO)
Subject: Contractual Logistics Transfers
Sent: Friday, May 20, 2011 2:50 PMTo: DC Criminal Coordinators (DCA)Cc: DeLeon, Sisto (HCSO)Subject: Contractual Logistics Transfers 
Good afternoon,   Due to jail overcrowding, pre-trial inmates with a future date of 35 days or over are transferred to outlying jail facilities in Newton and LaSalle County.      The inmates will be returned to Harris County Jail, two weeks prior to the setting in the court.     Video Conferences are available at both of these facilities to allow the defense attorney to visit with his/her client.         Defense attorneys may contact one of the following individuals to arrange the video conference: Lt. J.D. Clay @ 713-755-8434 or 713-755-8425 Sgts. C.D. Minshew or F. Dlouhy at 713-755-8420 Or Deputy Station at 713-755-1188 or 713-755-1189   Please convey this contact information to the defense attorneys.    This information is also available on the Coordinator’s Resource Webpage under Contractual Logistics Transfer Procedures.       Thank you in advance for your assistance in this matter.
Stephanie Armand Business Process Manager Administrative Offices of the District Courts 713-755-5704

Keep in mind that we aren't talking about people who have been found guilty of anything. These are the folks that are supposedly innocent unless proven guilty. These are the folks who are unable to post bond. These are the folks that most people don't give a rat's ass about.

But they're being transported all over the state because Harris County refuses to do anything to address the underlying problem of jail overcrowding -- punitive bonds.

And then there's HB 1173 that would allow counties with populations over 3 million people to extend the time they can hold a suspect without a probable cause hearing from 24 to 36 hours. That's just what we need here in Houston -- there's not enough room at the inn as it is and now we're going to allow the state to hold a citizen in jail an additional 12 hours.

Of course, if it's a bad bill related to criminal justice you know it must be sponsored by Sen. Joan Huffman. Interestingly enough, the fiscal analysis indicates that there should be no additional cost to the state (understood) or to local government (?). Just how many pretrial detainees are being transferred out of the county to make room for the new blood over on Baker Street?

Here's an idea for our legislators in Austin -- how about mandating the issuance of citations for Class B possession of marijuana cases? Confiscate the contraband, issue a citation with a promise to appear and go on about your business. It's going to be cheaper than shipping detainees out of the county and it might just allow Harris County to take care of its business when it comes to holding probable cause hearings within 24 hours.

An unhealthy addiction to drug courts

Norman Reimer, the executive director of NACDL, says our newfound addiction to drug courts is harmful to the rights of our clients.

In the new issue of The Champion, the official publication of the National Association of Criminal Defense Lawyers, Mr. Reimer argues that, in many cases, drug courts are worse for defendants than the regular courts.
"All too often, drug courts denigrate fundamental rights, extracting broad waivers as the cost of admission, and expose even the most well-intended to dire consequences, often worse than if they avoided drug court and simply pleaded guilty. They tend to place a premium on early guilty pleas, thereby insulating questionable law enforcement search and seizure practices, and provide a convenient means for prosecutors to shed defective cases. And some drug courts impede the attorney-client relationship and undermine an accused person's Sixth Amendment right to a vigorous defense. Worse, many drug courts operate without transparent admission criteria, and most bar eligibility to recidivists and those most in need of treatment. These factors tend to exacerbate racial and economic disparities in the criminal justice system."
The problem with drug courts is that the criminal (in)justice system is not designed to provide solutions to public health issues (the same general problem exists with other specialty courts). Drug addiction is a medical issue - not a legal issue. Treating a medical condition through the auspices of the criminal (in)justice system is doomed to failure.

Medical professionals are trained to treat both the symptoms and the root cause of an illness. The goal of the medical profession is to cure the patient - or at least to ameliorate the condition. The doctors, nurses and other staff work together as a team to help the patient.

In the courthouse, judges, prosecutors and defense attorneys are not part of a "team." Prosecutors and defense attorneys are adversaries - we stake out our position and go from there. The prosecutor is looking for the best outcome for the state (or to get Friday afternoon off) while the defense attorney is fighting for the best outcome for his client. The judge sits as an impartial arbiter. No one is interested in resolving the medical condition behind the addiction -- the sole question is whether the state can prove up the elements of the charged offense.

The price for admission into the drug courts is a plea of guilty (generally) and a waiver of one's constitutional rights. We're all part of the same "team" now, remember? We're no longer adversaries. We'll work together to get the defendant through the process.

The process consists of a probation more restrictive than that offered in the regular court. The reward at the end of the tunnel is a dismissal - if the defendant can complete the program. Fall short of the court's expectations and you find yourself in a worse position than you would have been in had your case remained in the regular court.

On the other hand, Mr. Reimer points out that:
"Drug courts have helped many people. They have saved lives. They have probably saved hundreds of thousands of prison years. For clients facing a lengthy prison sentence, even a long shot at successful diversion must be considered. And therein lies the dilemma. As long as draconian penal policies drive America's drug policy, drug courts will thrive - irrespective of their flaws."
This country's attempt to treat drug addiction through the penal system has been an abject failure. It's time to take a new approach. People whose only "crime" is their addiction to drugs need to be in treatment, not in the courtroom. Treating a medical condition in an adversarial setting will never succeed and will only mean that another generation is lost in the criminal (in)justice system.

See also:

Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities, Justice Policy Institute (March 22, 2011)

Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use, Drug Policy Alliance (March 22, 2011)

Friday, May 20, 2011

It's the end of the world?

For those of y'all not attuned to the rantings of the millennialists, you might just want to call it an early day and hang out in the backyard or the pool or the local watering hole because it just might be your last chance.

According to Harold Camping, an 89 year-old Christian fundamentalist out in Oakland, tomorrow is Judgment Day. According to his research, a series of major earthquakes will rock each meridian at 6pm local time. Thus will begin the so-called Rapture. Believers claim that the souls of the "saved" will be lifted off the earth and transported to heaven on that day. Supposedly the earth will be destroyed five months later on October 21, 2011.

Mr. Camping bases his bold prediction on a few numbers and phrases he found in the Bible over the course of five decades. He claims that the beginning of the Rapture was ordained to occur exactly 5,000 years after the Great Flood that wiped all but eight people. He claims that exactly 722,500 days will have passed between the day Jesus was crucified (April 1, 33) and May 21, 2011 and that the number is significant based upon his own brand of numerology.

5 x 10 x 17 x 5 x 10 x 17 = 722,500

According to Mr. Camping, the number 5 symbolizes atonement, the number 10 symbolizes completeness and the number 17 symbolizes heaven. Well, the numbers 5 and 17 can't be broken down any further, but the number 10 is not a prime number, its factors are 2 and 5. Oops. I guess I missed the significance of the number 2. But that's just a minor detail, I'm certain.

I've lost track of the number of times the predicted end of the world came and went. If Mr. Camping's wrong we still have the Mayan doomsday on December 21, 2012 -- unless of course the reason the Mayan calendar ended was the poor schlub drawing it up just got tired and went home.

For those of our brethren with little else to do but listen to doomsday prophets while watching infomercials all day (and night), an army of volunteers have quit their jobs to caravan across the country warning the unsuspecting that the world is coming to an end tomorrow.

It never ceases to amaze me the numbers of folks who get suckered in by snake-oil salesmen like Harold Camping. We have produced a generation (or more) that believes their fate is beyond their hands; a generation that looks for someone to blame for all of their misfortune. There are vast conspiracies afoot that affect every aspect of our lives. Secret societies sit behind the velvet curtain pulling the strings on the puppet show acted out in front of us. None of us bear any responsibility for our position in life.

These are the folks who sit on our juries. These are the folks who decide whether our clients walk out of the courtroom.

When the earthquakes don't occur; when the rapture doesn't begin; when the world continues on just as it has for years and years charlatans like Mr. Camping will have an explanation for why the destruction didn't happen. And I can guarantee it won't start off with "I was wrong..."

I'm pretty sure we'll be chatting again next week.

The best brisket in Texas?

Earlier this week I had to take another trip down US59 to Jackson County, Texas. As luck would have it, I was on the road at lunchtime.

Two of the biggest joints down that way are Mikeska's and Prasek's which I reviewed in an earlier post ("Barbecue showdown way down South"). Today's target was Mustang Creek in Louise. I've passed by the place countless times on the way down toward South Texas but I'd never stopped there.

Folks at the Jackson County Courthouse in Edna gave the place, housed in a converted gas station (the pumps are still out front), high marks. Now it was my turn.

The lady at the register suggested I choose the buffet since I was dining in. At only 30 cents more than the two-meat plate, how could I refuse?

As standard in my tests, I chose brisket and sausage without sauce. I want to taste the smoke and the meat and you just can't do that when you drown the meat with spicy red sauce. Real barbecue should be eaten dry - just like a good steak. As my sides I chose the pinto beans, potatoes and (of course) banana pudding.

The pinto beans were, well, pinto beans. The potatoes were damn good. It was a cross of hot potato salad and mashed potatoes seasoned with butter and onions. The meat was cut thick and was firm without being dry. The rub left a peppery crust on the meat. The sausage was also cut thicker than either Prasek's or Mikeska's dares. The banana pudding was heavenly.

According to the pit boss, Cecil Sanchez, Mustang Creek smokes their brisket over oak for "at least" six hours. The smoke ring is thick and the meat is tasty. While the atmosphere has nothing on its neighbors to the north, Mustang Creek's barbecue beats both Prasek's and Mikeska's.

Thursday, May 19, 2011

Dr. Big Brother?

San Francisco is was known as the home of free love and doing your own thing. 'Frisco was the center of the alternative counter-culture.

Now the city by the bay is about to vote on whether to allow Big Brother to make medical decisions.

A group has managed to gather enough signatures to hold a vote on whether or not to outlaw circumcisions in San Francisco. The initiative would make it a misdemeanor, punishable by a fine of up to $1,000 and a year in jail, for anyone to perform a circumcision on anyone under the age of 18.

What if it's a religious practice? Sorry. No dice.

What if there's a medical reason for it? Nope.

Personal preference? No.

Keeping it clean? Forget it.

Something, either the water, the enormous amounts of drugs ingested in the 60's and 70's or the escalation of property values, has turned the once-contrarian, anti-government population of San Francisco into a hotbed of zealots who feel it's their ordained role to tell everyone else how to live their lives.

I'll grant the proponents of the initiative that the baby placed on the table had no say in the matter, but does anyone even remember it? Was anyone really scarred by undergoing a procedure they knew nothing about when they were a newborn?

Little kids also have no say in when they go to the doctor, what medicines they're prescribed, where they go to school, when they go to bed, what they eat at dinner any any number of other choices that parents have been deemed responsible enough to make for their children.

Parents are given the task of doing what they believe is in their childrens' best interests. I, for one, don't want the government looking over my shoulder second-guessing every decision I make for my kids. The essence of this country is that we are free to do as we wish so long as we aren't harming those around us. You know, live and let live.

But the meddlers can't leave it at that. Instead of trusting people to do what they think is right (and most folks do a pretty good job of it), they want to peek into your bedroom, or your living room or your backyard and tell you what you should be doing.

If you don't want to circumcise your child, fine. Don't do it. If you don't want your kids eating french fries with their burgers, great. Don't order them. If you don't want your kids eating refined flour, fantastic. Don't use it. If you think spanking is wrong, good. Don't do it. If you don't want your kids watching television, climbing trees or playing competitive sports, wonderful. Don't let them.

But don't abdicate the role of parenting to the government. And don't stick your noses in my business.

Texas denies compensation to Clarence Brandley

What is nine years worth to you?

What about nine years in prison?

Nine years without being able to hold your loved ones?

Nine years of your life lost because the state coerced witnesses and hid evidence?

The answer from the State of Texas is nothing.

Clarence Brandley was charged with a murder he didn't commit. He was tried and convicted for a murder he didn't commit. Even after witnesses came forward and said their testimony had been coerced by investigators, the Montgomery County (Texas) District Attorney's Office insisted that Mr. Brandley was guilty of the crime.

Even after an appeals court found that Mr. Brandley had been denied due process at trial, prosecutors continued to insist that he was guilty.

And now, twenty years after being released, the State of Texas has declared that Clarence Brandley is not entitled to compensation from a fund for the victims of false convictions because he never received a ruling from a court declaring him innocent.

Perhaps the comptroller has never heard of the presumption of innocence. Perhaps the comptroller doesn't realize that we are all innocent unless proven guilty beyond all reasonable doubt. Perhaps the comptroller doesn't grasp the fact that Mr. Brandley's conviction was overturned as a result of the conduct of the Montgomery County District Attorney's Office.

Clarence Brandley spent nine years on death row because he was a black man accused of killing a white girl. He was convicted by an all-white jury. And now the state is sticking it to him again.

See also:

"The passing of a hero," The Defense Rests (Sept. 12, 2010)

Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.

Wednesday, May 18, 2011

Refilling the ranks?

A couple of weeks ago I got to enjoy one of the perks of this job. I serve as counsel for a local teacher's organization - I represent members in termination hearings and in any criminal matters related to their employment.

Every spring the organization holds its annual banquet in which scholarships are awarded to members and their kids and retirees are honored. In a typical year there might be five or six teachers retiring after 20 years or so in the profession. It's a loss to the schools but there are plenty of teachers in the pipeline.

This year was different. With the budgets of every school district being pared with a butcher's knife as the result of budget cuts at the state level, districts are offering lucrative severance packages to teachers with enough years in service. This year there were about 35 members retiring from the profession in this organization alone. Most of the retirees had well over 20 years of experience.

More than 700 years of teaching experience is walking out the door at one time. And that's only one teacher organization in one city. According to the organization's president, people coming into the teaching profession are staying in five years or less on average. As time goes on there will be less institutional memory.

What does that mean to the future of education in this city? In this state? What will happen to our schools when the majority of teachers are only "passing through?"

Attracting people to the profession and keeping them in is going to take a large investment. The failure to make that investment will cost us much more over the long run.

Shooting oneself in the foot

Over the weekend, my wife and I drove up to Huntsville State Park to do some hiking for our anniversary. Along the way we stopped in Willis so she could get her caffeine fix in at Starbucks. As we drove along the feeder to enter the Kroger parking lot off FM 1087 I couldn't help but notice a car parked on the shoulder with a state trooper sitting behind it. The people in the car were standing off to the side and the doors were open.

It was about 9:30 on a Sunday morning and someone had the police tearing through their car. Under no circumstances could that be considered a good way to start the day.

After I dropped my wife in front of the Kroger's, I circled back around to the feeder to see what was happening. The trunk lid was open and a trooper was putting the spare tire back in. It was only getting worse.

I drove back around and picked up my wife. Not being one to pass up a train wreck, I drove back around to the feeder. The doors of the car were still open. Two women were standing in the grass and a third was standing with her hands cuffed behind her back at the side of the police car.

Now I have no idea what was going on. I don't know who the people involved are. I don't know why the car was stopped. I have no idea what was found in the car or why (at least) one woman was under arrest.

I do know, however, that the driver, for some unknown reason, gave her consent to the trooper's request to search her car. My only question was Why?

Why would anyone allow the police to search their car without a warrant? Why would anyone with anything illegal in the car allow the police to search it?

I can guarantee you that the officer didn't have probable cause to search that car. And how do I know, you might ask. I know because he asked to search the car.

But wait, you say, if he arrested the driver he can search the passenger compartment since the inside of the car is considered within the reach of the driver. Maybe so, but everyone was standing outside the car when it was being tossed and no one was in handcuffs. No arrest, no search.

Besides, even if the officer could search the passenger compartment incident to an arrest (just try to find that phrase in the Fourth Amendment), he can't pop open the trunk absent a warrant or consent.

If the officer had probable cause to believe that something of an illegal nature was in the car, he would have arrested the driver (and passengers) and filled out a search warrant application and affidavit. He would have presented it to a judge and, once the judge signed it, searched the car.

Law books and computer data bases are full of cases in which illegal items were found as the result of a police officer's request to search a car. In the vast majority of those cases the officer was operating on a hunch. If the officer had probable cause to search the car, he damn sure had probable cause to arrest the driver or passengers. But in (too) many of those cases, the defendant sealed his fate by allowing the officer to search his car without a warrant.

There is nothing to be gained in allowing the police to search the car. There's no award for hanging yourself by letting the police find your stash of goodies in the trunk or under the hood. The prosecutor isn't going to dump the case just because someone let the cops toss their car.

Who cares if you piss off the officer? Call the officer's bluff and, as Nancy Reagan would advise, just say no.

Tuesday, May 17, 2011

Fixing the (Dis)Astros

I was listening to one of the local sports talk stations the other morning when the topic of what to do about the Houston Astros came up. One of the co-hosts argued that the new owner needed to spend more money in order to make the team competitive while the other co-host countered that you can't solve every problem by throwing money at it.

So, as a diversion from the law, I thought I'd look at who's spending the most, who's spending the least and who's spending the best in the world of baseball.

The list of top spenders should come as no surprise to even the most casual of baseball fans:

New York Yankees ($201,690,030)
Philadelphia Phillies ($172,976,381)
Boston Red Sox ($161,407,476)
Los Angeles Angels ($138,998,524)
Chicago White Sox ($129,285,539)

Of the big spenders, the Phillies are the only club leading their division.

The five clubs with the lowest payrolls are:

Kansas City Royals ($36,126,400)
Tampa Bay Rays ($41,932,171)
San Diego Padres ($45,869,140)
Pittsburgh Pirates ($46,047,000)
Cleveland Indians ($49,188,867)

Of the low spenders, both the Ray and Indians are atop their divisions.

The Houston Astros, by the way, have the 20th highest payroll of the 30 Major League teams. Houston's payroll for the 2011 season is $70,694,000. That works out to an average of about $2.4 million for each of the 25 players on the roster.

Throwing money around isn't necessarily helping the Yankees who are in the midst of a six game losing streak. They are also stuck with an overpaid designated hitter batting less than .200 (Posada) and an over-the-hill shortstop with no power and no range in the field (Jeter). They are also looking at an insane amount of money they will owe to some aging players on the back end of their contracts (Sabathia and Rodriguez).

But that's all good because I think rooting for the Yankees is like rooting for the bank at the foreclosure hearing.

To determine the most efficient spenders I projected each team's win total based on the season-to-date and divided the total payroll by projected wins. The five most efficient spenders in Major League Baseball are (with their cost per win):

Tampa Bay Rays ($442,186)
Kansas City Royals ($446,005)
Cleveland Indians ($461,525)
Florida Marlins ($585,844)
San Diego Padres ($644,936)

Of the five most efficient spenders, two teams lead their divisions (Rays and Indians) and the Florida Marlins have the second-best record in the National League. Of the five, only the Padres are projected to have a losing season (the Royals are at .500).

The five least efficient spenders are:

New York Yankees ($2,427,738)
Minnesota Twins ($2,261,699)
Chicago White Sox ($1,971,675)
Boston Red Sox ($1,945,240)
Chicago Cubs ($1,776,959)

Of the five most inefficient spenders, the Twins and White Sox are bring up the rear of the AL Central and the Cubs are sitting in next-to-last place in the weak NL Central. The Yankees and the Red Sox are both barely above .500.

The Houston Astros were the 17th most efficient spender (or 13th least efficient spender) with a cost per win of $1,192,796.

Three of the most efficient spenders are projected to end up in the top five teams for wins this season (Cleveland, Florida and Tampa Bay); while two of the most inefficient spenders are projected to end up in the bottom five teams for wins this season (Chicago White Sox and Minnesota) with the Cubs projected to finish with the sixth worst record.

The Houston Astros are projecting to wind up 29th out of the 30 teams with 59 wins.

Spending money is not the be-all and end-all of baseball - or any other endeavor. It's not about how much of your resources you're using; it's how you use them. The same can be said of the time we spend working. Working long hours doesn't necessarily mean you're productive; it just means you're working a lot of hours.

Spending for the sake of spending leaves you with a bunch of highly overpaid players on a losing team (Carlos Lee, Clint Barmes, Bill Hall, Brandon Lyons) that can't be off loaded. The answer for the Astros is not to write bigger checks. If the Astros want to turn it around they need to be smarter with how they spend their money. Spend more time and money on scouting and development. Unless you're planning on breaking the bank, a good ball club needs some players brought up from the minors who are playing on the cheap for the first few years of their career. Develop enough of those players and you will have the money to keep your higher priced players and bring in a good free agent or two.

The Astros organization wasn't ruined over the course of a season, it was a long, slow demise. The rebuilding process is going to take time, too. But that's okay. My oldest daughter loves going to the ballpark to watch the Astros and I like hanging out with her there. We'll still take in a couple of games a season, no matter how badly the local nine is playing.

Bring on the boys of summer.

An eye for an eye

Dearly beloved, avenge not yourselves, but [rather] give place unto wrath: for it is written, Vengeance [is] mine; I will repay, saith the Lord. -- Romans 12:19
Hand a prosecutor an affidavit of non-prosecution from the complaining witness in a domestic assault case and you will likely be told that the DA has to prosecute those cases, regardless of whether the complaining witness wishes to cooperate or not. After all it's the State of Texas versus your client.

Ask a prosecutor to consider probation in a violent felony case and you will likely be told that the DA must run it by the complaining witness before agreeing.

It's the state's way of having its cake and eating it, too.

Truth be told, the criminal (in)justice system doesn't need complaining witnesses, or their families, involved in the adjudication of a criminal offense. What we need are advocates on both sides who are able to distance themselves from the persons and events involved. While empathy is necessary, pandering is not.

Scott Greenfield wrote about the perils of a defense attorney getting too close to a client. There's also a danger when a prosecutor gets too close to a complaining witness. The closer you get to the parties involved, the more perspective you lose.

Nowhere is that lack of perspective any more focused than in Iran where a court has ordered that a man convicted of blinding a woman be blinded himself. Majid Movahedi hurled acid into the face of Ameneh Bahrami after she spurned his proposal of marriage. Mr. Movahedi was convicted in 2009 and the court ordered that he be blinded as his punishment.

Ms. Bahrami asked that she be allowed to carry out the actual procedure in which five drops of sulfuric acid will be placed into each eye.

As anyone who has ever practiced law or been a party to a lawsuit knows, the justice system (whether it be civil or criminal) cannot undo a wrong. The best a court can do is compensate the victim of a wrong in civil court or punish the person convicted of committing a crime in criminal court. No matter how much money a court may award, and no matter the sentence meted out, the underlying act happened - and nothing will change that.

Award a family a million dollars for the loss of their child in a car wreck caused by the negligence of another driver and the child is still dead.

Sentence a man to death for the murder of someone's loved one and the loved one is still dead.

Order a man blinded for blinding a woman and she will still be blind.

These are the realities that we deal with on a daily basis. The folks involved in the litigation are emotionally invested and tend to have their judgment clouded one way or the other. The attorneys involved must be able to detach themselves from the emotional side of the equation in order to resolve the matter.

Monday, May 16, 2011

A man's home is NOT his castle

Why do I rail so much against the emasculation of the 4th Amendment when it comes to people accused of driving while intoxicated? What's the big deal about lowering the standard to stop a car? So what if a drunk driver isn't afforded the opportunity to consult with an attorney before being asked to blow into the state's black box? What's the big deal about "No Refusal" Weekends?

It's because every time we make an exception to the 4th Amendment, we lose just a little bit more of the freedom  we fought so hard to obtain in the 1770's.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 4th Amendment
Note that there is nothing in the text of the 4th Amendment that says "except when..." or "unless..." or "under exigent circumstances." The courts have been only too happy over the years to turn the 4th Amendment into a piece of swiss cheese - so riddled with holes and exceptions that its protections are meaningless.

When we turn a blind eye to the 4th Amendment in a DWI case we make it easier for the next judge to take away the rights of someone accused of some other crime. When we allow the police to stop a car because the officer has "reasonable suspicion" that some criminal activity might be afoot - then we allow an officer to arrest a motorist and search his car with less evidence to support his decision that would be required to obtain a search warrant. You allow a judge to sign a warrant authorizing a forced blood draw when the arresting officer can't point to anything that the driver did that was illegal - he just had a hunch.

Last week the Indiana Supreme Court said to hell with your right to be safe inside your home from unwarranted government intrusion when it found a homeowner had no right to use force to prevent the police from entering his house unlawfully.

Just think about that for a second.

Let it soak in.

If you happen to live in Indiana, you are no longer secure in your house from "unreasonable searches and seizures." You have just lost your reasonable right to privacy in your home. In Indiana, the 4th Amendment is but a meaningless sentence on an old piece of paper. It means absolutely nothing.

This decision comes from the folks who brought you that canard about "liberal" judges and their activism in "expanding" constitutional rights and privileges. It comes from the same folks who told you that judges should honor precedent. It comes from the same folks who told you that judges shouldn't make law from the bench.

Your reliance on politicians who told you they were for limited government has been betrayed.

Do you really want sobriety checkpoints on the roads? Do you really want government mandated ignition interlock devices on cars? Do you really want the government to have access to your text messages, voice mails and e-mails through your cell phone or internet provider?

Are you ready for an era in which the police will be allowed to stop a motorist for no reason whatsoever?

As Billy Joel once sang:
This is what you wanted; ain't you proud?
'Cause everybody loves you now.

See also:

"Resistance is futile," Simple Justice (May 14, 2011)
"Indiana cops get the keys to the castle," Defending People (May 15, 2011)

Saturday, May 14, 2011

A tour of the home office

A few weeks ago, Scott Greenfield gave a peek behind the curtain at Simple Justice. Now it's my turn.

Since last weekend was Mother's Day, I decided to work from home. These are some pictures of my workspace and the project on which I was working.

This is my workstation.

Who needs a computer chip? Just give me some hickory and pecan.

Unfortunately, the contents of this jar are covered by the attorney work product privilege.

I know from experience that this project takes about 18 hours (at 225 degrees).

Into the work station you go, Bessie.

Who needs an office with a window when you've got this?

Around the corner is the conference room.

Time for final processing.

Time to eat. Sliced or chopped?

Friday, May 13, 2011

And then there were none

First it was Jano Chu who left back in the fall of 2010.

Then it was Jorge Wong's turn to go in March.

And now Amanda Culbertson is heading out the door.

Maybe it's something in the water over there at 1200 Travis that's causing area Technical Supervisors to flee for other grounds.

We now return to our regularly scheduled programming

Once again I had a reminder that technology is not the be-all and end-all in the practice of law.

For the past two days I'd been dealing with a problem with the print spooler on my computer. It meant that I was unable to print anything. That presents quite the problem in a profession in which paper is pushed to varying degrees everyday.

I spent hours hunting down the problem and trolling tech message boards for advice on how to solve it. I found the spooler in the services folder in the administrative tools folder in the control panel. I monkeyed around with it and was able to print out a page or two every now and then. But, after each successful print the spooler would come crashing down again and it'd be back into the control panel.

Clearly this wasn't working.

Then the computer simply refused to recognize the printer that's been hooked up to it for the past two years. I made changes to the printer app, rebooted the computer and saw the same messages pop up over and over again.

I was finally able to keep the spooler up and running long enough to delete the printer driver and reinstall it. Now, for the time being, everyone is recognizing each other and getting along.

The problem itself was bad enough, but the time it took diagnosing the problem and fixing it just made the situation even worse.

Last night, before I left the office to pick up my wife and take her to the Harris County Criminal Lawyers Association annual banquet, I opened up Blogger so I could prepare the post for this morning. Oops. Blogger was undergoing some sort of maintenance and I couldn't access my blog. I tried a few more times before leaving the office to no avail.

Blogger is currently unavailable

Blogger is unavailable right now. We apologize for this interruption in service.
Please visit Blogger Status for additional details.

Luckily, I thought, since I had no appointments on the morning calendar I could type up my post for this morning once I rolled into the office. But, when I opened up the blog, my Thursday entry was gone and I was informed that Blogger was closed down because of some kind of technical problem. Of course, Blogger Status told me that it would be back online "soon"

Blogger Status

Friday, May 13, 2011

We’ve started restoring the posts that were temporarily removed and expect Blogger to be back to normal soon.

Posted by at 06:07 PDT

To get Blogger back to normal, all posts since 7:37am PDT on Weds, 5/11 have been temporarily removed. We expect everything to be back to normal soon. Sorry for the delay.

Posted by at 04:25 PDT

"Soon," it turned out, meant sometime after lunch. Now everything seems to be back to normal (or as close to normal as anything ever gets in my little corner of the world).

The lesson, as always, is don't get caught up in the pretty little shiny gadgets we all have on our desks, in our pockets, purses or briefcases. They are tools that help us to do what we do -- but that's all they are. The practice of law cannot be confined to words and images that pop up on LCD screens. They greatest tool an attorney has is the grey stuff between the ears -- don't allow the latest shiny gadget to take its place.

Trade secrets, confrontation and junk science

Back in 2005, a Sarasota County (FL) judge ordered CMI, the maker of the Intoxilyzer, to produce the source code to a designated expert for examination. A judge in neighboring Manatee County did likewise. Two years ago, a Florida appeals court upheld the trial court orders. Earlier this year the Florida Supreme Court refused to hear CMI's appeal.

Today, six years later, the source code has yet to be produced.

Things reached a head last week when prosecutors made the decision to dismiss a DWI case against Janet Landrum rather than have a judge sign an order that could invalidate any prosecutions based on breath test results. Ms. Landrum was being tried after being arrested for the 11th time for driving while intoxicated.

Earl Landrum, the State's Attorney, has been CMI's water-carrier, arguing that the source code is a trade secret and that defense experts have no right to inspect it.

Florida uses the Intoxilyzer 8000 which uses dry gas calibration (rather than the alcohol jar on the Intoxilyzer 5000) and measures the absorption of light at two wavelengths (rather than five).

No one outside of CMI has seen the source code that runs the machine. Not one state's expert can testify exactly how the machine operates. Since CMI fights every attempt by anyone to see the source code, the reliability of the machine cannot be tested.

Just think about that for a second. The state will put an "expert" on the stand who will testify that the machine was working properly at the time of a given breath test. That "expert" will testify that the machine had been maintained properly. That "expert" will testify as to the alleged alcohol concentration in a motorist's blood. But that "expert" can't tell anyone exactly what goes on in the innards of that machine.

That "expert" knows how to run a diagnostic check on the machine, how to change out the dry gas canister, how to clean the machine and how to make simple repairs to the machine. But that "expert" can't tell a jury how the machine's computer program converts the absorption of light into a volumetric measurement that is supposedly analogous to the level of alcohol in a person's bloodstream.

In an era in which we have learned that the forensic "science" that was used to obtain convictions is, in many ways, junk science, we are supposed to put our faith in a grey box that no one outside CMI can explain the manner in which it works (or doesn't).

What are y'all hiding out there in Kentucky, CMI? The rights of a criminal defendant to confront and challenge the evidence arrayed against him trumps any claim that the source code is a trade secret. The mere fact that CMI is unwilling to turn over the source code to designated experts is more than enough to cast a shadow of doubt upon the accuracy of the machine.

Thursday, May 12, 2011

Training the vampire's apprentice

"...the importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great..." -- Schmerber v. California, 384 US 757, 770 (1996).
While doing some research for a recent post I came across some information on the website for the Texas Municipal Courts Education Center dealing with blood warrants in DWI cases. It seems that the judges had a pow-wow last July and blood warrants were on the agenda.

Included among the written materials was a question-and-answer paper with some delectable little morsels regarding the signing of blood warrants by municipal court judges.
How do you obtain a blood search warrant? 
An affiant/officer must present a qualified magistrate a written affidavit alleging facts amounting to probable cause that a specific person committed a specific crime and alleging why the blood sought will provide evidence regarding that crime 
A magistrate has no legal reason to deny this request if the above criteria are met.
It's scary that municipal court judges - whose job it is to raise revenue for the city from motorists - are authorized to sign blood warrants in DWI cases. But, starting with the last point in the answer to the question, while there may be no legal reason to deny the request - there is also no legal reason requiring the magistrate to sign the warrant. The affidavit may very well contain allegations that a specific crime occurred and that a specific person is believed to have committed the crime -- but it does not follow that the warrant must be issued based upon the allegations. The magistrate has the right to question the affiant to determine his or her truthfulness and to help decide whether or not to grant the warrant.

Furthermore, none of the search warrant applications I've seen in DWI cases have actually alleged why the blood is evidence of the crime. As far as the law is concerned, it's not a crime to have a BAC of .08 or higher at the time of the test. It's only a crime if it can be proven that the driver was over the limit at the time of driving.
Does a magistrate have to sign a blood search warrant if it is legally sufficient? 
No. A magistrate never has to sign anything but there are potential consequences for declining to perform magisterial duties. The C.C.P. says "It is the duty of every magistrate to preserve the peace within his jurisdiction by all lawful means; to issue all process intended to aid in preventing and suppressing crime." Whether issuance of a blood search warrant helps to preserve the peace seems debatable. However, general public knowledge that a blood draw may be required if a person is arrested for DWI seems very likely to aid in preventing and suppressing crime by its deterrent effect. 
So, while a magistrate does not have to sign a legally sufficient blood search warrant, it is arguably a dereliction of duty and a possible violation of the Code of Judicial Conduct. Clearly, a magistrate does NOT have to sign a blood search warrant (or any search warrant) he/she believes is legally insufficient.
As I was saying, a magistrate is not compelled to sign a blood warrant. One thing is certain, however, it is not the job of a judge to be the waterboy for the police. A judge is not a crime fighter. A judge is supposed to be a neutral arbiter in a dispute between two or more parties. I find it interesting that TMCEC is making a veiled threat to municipal judges that they might be violating the Code of Judicial Conduct if they don't go along with the vampires.

It is even more ironic that the TMCEC makes this threat when Judge Killer of the Texas Court of Criminal Appeals walks away with a smirk on her face after violating court policy and procedure in the Michael Richard execution. The implication seems to be - if you act in good conscience you may be in violation of judicial canons but if you prevent a condemned man from filing a request for a stay you're okay.
Can a blood search warrant be faxed to a magistrate so the magistrate can sign a blood search warrant? 
Various counties are already using faxed blood search warrants. 
So, the answer is "Yes" you can use faxed blood search warrants. It is being done. C.C.P. Section 18.01 requires the "facts" of a "sworn affidavit" be presented to a magistrate who signs the warrant. Nothing in the code specifically requires the officer/affiant to appear personally before the magistrate. C.C.P. Section 2.26 declares electronic documents a written document for all purposes. 
If law enforcement is depending on the magistrate to sign the affidavit, arguably, the officer may need to be "before" the magistrate. Tex.Govt.Code Section 312.011 defines an affidavit as a written statement of fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths and officially certified by an officer under his seal of office. Historically, that would mean "in front of" the magistrate, though that may not be true in this newer, high tech environment in which we operate.
Well, of course, if someone else is doing it, it must be perfectly legal. Right? Interesting that the same government that fights against the expansion of constitutional protections for the citizenry due to "changing times" is more than willing to expand the power of the police state based upon the same reasoning.

One very interesting tidbit I came across I found in the slide presentation that accompanied the lecture. According to TMCEC a
Suspect should not be threatened with a warrant to gain "consent."
I have yet to figure out how this statement gibes with the gibberish about how general knowledge of forced blood draws is a deterrent to DWI.

The police make a grand event out of every No Refusal Weekend. They put it on the highway signs in Montgomery County. Officers tell motorists that it's a No Refusal Weekend and that they will obtain a warrant to draw blood if the motorist doesn't consent to a breath test. The prosecutors line up the judges who volunteer to sign blood warrants and put out press releases that they will obtain a warrant to draw the blood of anyone who refuses to blow.

How is that anything but coercive behavior on behalf of the state?

Click here for the audio presentation.