Monday, October 31, 2011

You can call it what you will, but it's still illegal

You may remember Ruben Trejo, he's the former HPD sergeant who collided with a school bus on his way to work -- with an alcohol concentration of .176. On Friday, Mr. Trejo pleaded guilty to driving while intoxicated, paid a $500 fine and was placed into the Harris County District Attorney Office's pretrial intervention program (DIVERT).
Trejo, who has retired from the department, was allowed to the Harris County District Attorney's pretrial intervention program in which defendants plead guilty to DWI, but the verdict is deferred for a year. If the defendant completes all the requirements in the program, there is no conviction but the initial arrest remains on record.
What's wrong with this picture, you ask?

When a defendant opts for deferred adjudication in a criminal case, she enters a plea of guilty before the court, the judge then states that he finds enough evidence to find her guilty but that he will withhold a finding of guilt for a period of time (the length of the probation). Once the defendant completes her probation the criminal case will be dismissed and she will be eligible to file a petition for nondisclosure.

The problem is that deferred adjudication is not available for anyone charged with driving while intoxicated in Texas - even though it is available to a person charged with murder. The Houston Chronicle article points out, in plain English, why the DIVERT program is illegal.

Calling it pretrial intervention doesn't change that fact. Once the defendant enters a plea of guilty on a DWI case, there is nothing the judge can do (legally) other than record it as a conviction and sentence accordingly. As soon as the judge states she is deferring a finding of guilt, we're talking about deferred adjudication.

Saturday, October 29, 2011

Running downhill

This is an aerial photograph of the historic Thai city of Ayutthaya, just north of Bangkok.

The flooding in Thailand is another reminder that we're just guests on this planet. All the modern amenities and infrastructure can't hold back the river when the water is looking for the path of least resistance to the sea.

Here's a little Johnny Cash for y'all..

Friday, October 28, 2011

Update: Just another murder

The State of Texas murdered Frank Garcia last night. There was no fanfare. There was no media frenzy. There was no one broadcasting from outside the Walls Unit. It was just another execution. Another murder. The twelfth one this year.

Frank Garcia is dead. He killed his wife and a San Antonio police officer. They're still dead.

Frank Garcia was no media darling. His case didn't lend itself to crusades.

In the end, Frank Garcia will be forgotten. He'll become just another number. Just another nameless man killed by the State of Texas. Just another inmate strapped down to a gurney with an IV in his arm.

Does that make anyone feel any better?

Goldman Sachs declares war on local credit union

This is Greg Palast's report on Democracy Now! regarding Goldman Sachs using taxpayer bailout funds to attack Occupy Wall Street. If you want to see how class warfare is carried out, just watch how Goldman Sachs is attacking a community credit union serving low income residents of New York.

Thursday, October 27, 2011

Protecting and serving whom?

The cities of Atlanta and Oakland have declared war against those protesting against corporate greed and the politics of influence. In both cities the police raided campsites occupied by the protesters using tear gas, flash grenades and rubber bullets. After raiding the campsites, police carried out mass arrests.

Most police departments claim their mission is to protect and serve. In Atlanta and Oakland the question must now be who are the police here to protect and serve?

According to the BBC:
Many Occupy Wall Street protesters say they are making a stand against corporate greed and income inequality in the US. 
As rallies continued, the report from the bipartisan Congressional Budget Office indicated the nation's highest earners saw their household income almost triple in the years between 1979 and 2007 
After tax income increased by 275% for the wealthiest 1% of Americans but by just 18% for the poorest 20%, the report said. 
In addition, the report revealed that in 2005-2007, the years immediately preceding the financial crisis, the top 20% of the population earned more after-tax income than the entire bottom 80%.
This concentration on the distribution of income ignores the true source of the problem, however. Inequality of income is merely a symptom, not the disease. There are many reasons why incomes are distributed the way they are. The two most important factors are the importance of the work and the availability of replacement workers.

For instance, trash collection is a very important job in our modern world while providing entertainment isn't nearly as important. Yet, trash collectors are paid less than entertainers because it's easier to replace a trash collector than it is to replace a movie star.

The problem isn't that some folks make more than others. The problem is a ruthlessly efficient economic system that sows the seeds of its own destruction by creating armies of the unemployed who can't afford to purchase the fruits of its labor. Capitalism requires ever greater levels of productivity in order to maximize profits. The side effect of that increase in productivity is a pool of workers who aren't needed any longer.

The relentless nature of this drive for greater efficiency creates periods of boom and bust as the system winnows out those whose labor is no longer necessary. And the purpose of this army of the unemployed? To provide a steady supply of replacement labor in order to keep wages down and profits up.

The police aren't out there protecting and serving those who have seen their careers and livelihoods cast aside without so much as a shrug. Just ask the people of Atlanta and Oakland. They'll tell you who the police serve and protect.

On Wall Street, trademarks and marketing

First there was Occupy Wall Street! Then the movement spread across the country and around the world. Throughout the United States there are young people camped out near financial districts and state capitols. The message of the movement varies with the speaker. Some protesters have concrete goals and aims, others have anger.

Robert Maresco of New York was so enthralled by the movement that he filed papers with the U.S. Patent and Trademark Office to trademark the name "Occupy Wall St." Mr. Maresco has plans to place the phrase on bumper stickers, umbrellas, shirts and beach bags. 

Asked if his move to stake a legal claim to “Occupy Wall Street” might be seen as a crass attempt to cash in on a movement that has a harsh view of corporations and capitalism, Maresca answered, “No.” Noting that he has a “practical business side,” Maresca added that, “If I didn’t buy it and use it someone else will.”
When he first checked the USPTO database, Maresca recalled, he discovered that a Brooklyn man had filed for a trademark for “We Are The 99%.” Still, he believed that “Occupy” would prove to be “a more powerful brand.”

Is that what we have become? Are we nothing more than marketing tools? Nike and Under Armour have convinced college football teams to cast aside tradition and wear their special gear for games. The costumes provided by the companies do nothing more than make the athletes wearing them walking billboards for the companies.

We can debate all day whether college athletes should be compensated over and above their scholarships - but  this is a different issue. This is not the universities using their students to promote their "brand" and raise money for non-revenue sports. These are for-profit companies who are making money off the backs of the students wearing their game gear.

But, back to the main story.

The mainstream media has done its best to marginalize the Occupy! movement and to deflect its message that people are tired of the influence the banks and large corporations have on our government. While Mr. Maresco says that he believes corporation have too much influence in politics, his actions speak differently. He is hoping to cash in on the work and the sacrifices of the protesters. That makes him no better than those against whom the protesters raise their voices.

We have become a society that spends far too much time looking for the easiest way to make money rather than providing a good or service that the public finds useful. The social media hucksters find a willing audience of attorneys willing to do anything (and pay any amount) for the hope that someone will find their name on an internet search.

And therein may lie the root cause of the crisis.

H/T Paul Lukas (Uniwatch)

Paying it forward

Yeah, that's right. I'm guilty. I admit it.

I have borrowed, alluded to and stolen from some of the best in the business. I liked Jeff Gamso's "Rule of Law" v. "Law of Rule" so much that I used it in a post about the aftermath of the fall of Muammar Gaddafi.

My basic outline for voir dire is a Frankenstein-esque document with bits and pieces that I appropriated from my Houston colleagues Todd Overstreet and Mark Bennett and the Jedi master himself, Robert Hirschhorn. My basic "playbook" I use in trial is full of ideas and concepts from Big D's David Burrows, Cowboy Lawyer (and TCDLA President) Gary Trichter and Mike McCollum.

That's the thing about criminal defense lawyers -- we're all on the same side. Each of us takes our duty to defend the Constitution very seriously and we know that working together and collaborating allows us to do it that much better. At our seminars we hear other lawyers talk to us about the strategies they used and which were successful and which weren't.

You don't see that same level of collaboration over in the civil courthouse. There everyone is chasing a fee and they protect their strategies and tactics like trade secrets. Giving up those secrets could cost you some clients, and some money, in the end.

Tort reform has made practice in the civil courts even more cut throat as the pool of potential clients dwindles due to the high barriers one must scale in order to collect a judgment.

Over in our corner of the world, reforming the penal code just means more clients as the legislature continues upon its quest to make everything illegal. There will never be a shortage of 4th Amendment issues. Confrontation problems will continue to rear their ugly heads. The police will still make pretextual stops and later try to rationalize why they pulled your client over in the first place.

So, if you see something here that might be useful, feel free to steal it and call it your own. Chances are it won't be the first time it was stolen.

Wednesday, October 26, 2011

The plot thickens

It would appear that the shit has hit the fan over at 1201 Franklin.

Today, State District Judge Susan Brown appointed former prosecutors Stephen St. Martin and James Mount to serve as special prosecutors for the grand jury investigating the Harris County District Attorney's Office.

From the Houston Chronicle: 

The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”
“After considering the grand jury’s request and the applicable law, the court finds the Harris County District Attorney and her office are disqualified from participating in the grand jury’s investigation,” Brown wrote.

Harris County District Attorney Pat Lykos manages her office through fear and intimidation (just read Murray Newman's posts on the warm and fuzzy feelings that Ms. Lykos evokes on the 6th floor). That might work on her staff - after all, with the current economic climate, hanging out your own shingle is a scary prospect - but it doesn't work with people outside the office.

Ms. Lykos is upset with Amanda Culbertson. She is upset with the Houston Police Department. Okay, I get it, but retaliating against Ms. Culbertson by subjecting her to a grand jury investigation was going a bit too far. Ms. Lykos' need for total control and her intolerance toward dissent may very well end up haunting her between now and next year's election - if she manages to hold on that long. Fear does not breed loyalty - and that's something Ms. Lykos should think about as the investigation continues.

This is not going to end well for Ms. Lykos and her minions.

A rat in a trap

As my colleague Murray Newman reported earlier today, four prosecutors with the Harris County District Attorney's Office were subpoenaed to testify before a grand jury today. The grand jury is looking into HPD's Batmobile program.

Well, Pat Lykos is not taking this lying down. First she sent her minions to Judge Brown in the 185th and demanded she tell the grand jurors to let her prosecutors in the room. Judge Brown politely declined. Then she fired off a request to the 14th Court of Appeals to order the grand jurors to let her prosecutors in the room. Again the answer was no.

The topic du jour would appear to be when the DA's office found out there were problems with the Batmobiles and just how many folks were prosecuted using evidence that has since been found to be unreliable.  With that we're no longer just talking about Brady violations and the possibility of a lot of writs, we're also talking about ethics violations.

Prosecutors have a duty to see that justice is done. Prosecuting people with evidence you know is unreliable is not fulfilling one's ethical duties.

It also raises questions about the reliability of breath testing in general. If the police can't maintain their machines in the Batmobiles, what makes you think they're maintaining them at the police station? We know now that these machines are sensitive to temperature and humidity. What else causes them to go haywire? And since the machines run a self-diagnostic check, what guarantee is there that the machines are operating properly.

HAL ran a self-check and determined that he was functioning properly. We all know how well that went.

And then there's this gem...  

Lykos tells us she still doesn't know what went wrong inside that grand jury room last week that nearly led to the arrest of two of her top assistants, despite the fact one of them was in the room with us during the interview. What she does know is that she no longer wants HPD supervising its own DWI vans.

"That's what perturbs me," she said.
Lykos told us Monday she's done trusting HPD to tell her the truth about DWI testing.
"We were never informed there were questions about whether the tests were valid," Lykos said.

What's this? A public pronouncement that the chief prosecuting attorney in the county doesn't trust the biggest police department in the county to run its own breath testing program. If the DA won't trust HPD to be truthful about its breath testing program, why should a jury? If Ms. Lykos said she can't trust them, how can a prosecutor, in good faith, present evidence to a judge or jury regarding a breath test conducted under the auspices of HPD?

Now the only question remaining is whether Ms. Lykos will accept responsibility for what has transpired or whether she will seek out a scapegoat (or two) and leave them hanging in the wind for all the public to see. I know where I'm putting my money.

See also:

"Pat Lykos' star chamber rebels," Life at the Harris County Criminal Justice Center (Oct. 21, 2011)

"The voice of the people," Gamso - For the Defense (Oct. 24, 2011)

Execution Watch 10/27/2011

Texas plans to murder Frank Garcia on Thursday night for killing his wife and a police officer in San Antonio in 2001. Execution Watch will be there.


FRANK GARCIA. Slated to be executed six days after his 39th birthday, Garcia was convicted in the shooting deaths of his wife and a San Antonio police officer in 2001. The officer had responded to a call about a domestic dispute. More background at


Unless a stay is issued, we'll broadcast on ...
Oct. 27, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: > Listen

You can find more information on Execution Watch's Facebook page.

Tuesday, October 25, 2011

Avoiding the real problem in the Texas prison system

brunch [brʌntʃ] n
a meal eaten late in the morning, combining breakfast with lunch
[from br(eakfast) + (l)unch]
Beginning this past April, Texas prison officials stopped serving lunches on weekends to some 23,000 inmates in 36 prisons. Inmates at those prisons eat "brunch" between 5am and 7am and dinner between 4pm and 6:30pm on Saturdays and Sundays. Officials have also replaced milk cartons with powered milk in a bid to save another $3.5 million.

Now I could spend a few words harping on how Texas prison officials have no clue what brunch is. I don't think there are people lining up outside Le Peep at 5am to grab a table for Sunday brunch. From our friends at Wikipedia:
A meal is not usually considered brunch if it is started before 11 am; such meals would still be considered breakfast. Typically brunch is had between 11 am and 1 pm, close to lunch time but still before. Brunch is usually eaten in the late morning.
Of course calling it brunch makes it sound like it's not so bad to cut out a meal twice a week. After all, it's "brunch." Such an easy-going sound. I have little doubt it's not as cheery as sitting out on the back patio The Court of Two Sisters in the French Quarter eating waffles while the birds fly overhead.

The ostensible purpose of the policy is to reduce the cost to taxpayers of housing over 165,000 inmates at facilities across the state. But instead of making life worse for inmates, why not find a way to reduce the number of people incarcerated across the state? I know, logic - it's not the currency of the realm in Austin.

We can start by taking a more critical look at the ways in which the state enhances criminal acts. It is absurd to send someone to prison for committing an offense that is but a misdemeanor. But that's exactly what we do with theft cases. We enhance a misdemeanor theft to a state jail felony theft - and then, to felony theft. Yes, petty theft is annoying. But should we be sending someone to prison just because they continue to shoplift?

The state needs to come to the realization that prison is not nearly as effective at controlling addictive behavior as counseling. There are far too many folks behind bars for possessing small quantities of drugs. It makes no sense. I have yet to have anyone explain to me how society benefits by incarcerating a crack addict for 10 years.

Next let's get rid of the so-called "Three Strikes" enhancement laws. I get it. The public is frustrated by folks who commit a crime, go to prison, get released and commit another crime. But let's think about proportionality for a second. It makes no sense to sentence someone to life for an offense that, by itself, would net someone no more than 10 years.

Finally, we need to think about the efficacy of imprisoning people who have passed into middle age. The cost of incarcerating people in their later years is drastically higher than for younger inmates. We need to take a closer look at the actual recidivism rates for older inmates and for inmates who have served 10 years of more. Studies have indicated that most violent crimes are committed by people under the age of 30 and that people in their 40's and 50's are far less likely to commit violent crimes.

But, as I have stated before, folks behind bars don't vote and so they are easy targets for politicians looking to score points with voters. Cutting meals for inmates makes for a good soundbite, but if we really want to solve the problem, we have to get beyond soundbites and take a more critical look at the way our criminal (in)justice system works (or doesn't).

See also:

"Bubble in expanding life sentences, LWOP driving TCDJ health costs for older inmates," Grits for Breakfast (Oct. 24, 2011)

Monday, October 24, 2011

Runaway jury

The original purpose of the grand jury was to have a body that could review a case to determine if there was enough evidence to proceed. The grand jury met in secret and if they chose to no-bill a case, no one ever knew the case had ever been considered.

The grand jury's role was to act as a check on the state in its prosecution of citizens accused of breaking the law. Over the years the grand jury has become a de facto rubber stamp for prosecutors. If the District Attorney wanted a case indicted, it was. If he wanted a case to go away because it was too hot a potato, all he had to do was let the grand jury know it was okay to no-bill it.

But someone, in Houston, a grand jury actually decided to take matters into its own hands. The grand jury was convened to consider whether anyone did something untoward regarding HPD's batmobile breath test machines.

You see, Amanda Culbertson kind of embarrassed Pat Lykos and her minions when she pointed out to her superiors in the HPD Crime Lab that the breath test machines in the batmobiles weren't, shall we say, very accurate or reliable. Then, to make matters worse, Ms. Culbertson testified under subpoena in a case and repeated her assertions that the breath tests conducted in the vans weren't all they were cracked up to be.

In the process of conducting its investigation, the grand jurors made it known that prosecutors weren't welcome in the room. Needless to say, this did not go over very well with Ms. Lykos. The DA's office asked the court of appeals to order the grand jurors to let prosecutors into the room but the appellate court thanked Ms. Lykos for playing but that she was not getting into the room - even if she said "pretty please or I'll indict someone's mother."

It stands to reason that the grand jurors are taking a hard look at the conduct of the DA's office in this entire sordid affair. Maybe someone gets indicted. Maybe (probably) not. But, I think it reasonable to assume that the grand jury is not going to indict Ms. Culbertson on some trumped up charge of telling the truth on the witness stand even thought it makes it harder for the state to prosecute motorists for driving while intoxicated.

Ms. Lykos has apparently forgotten that her ethical duty as a prosecutor isn't to coerce pleas or obtain convictions - it is to do justice. And that's even if it means dismissing cases because the machines used by law enforcement can't be relied upon to do what they are supposed to do.

H/T Murray Newman

Sunday, October 23, 2011

More questions than answers

One of the trademarks of a dictatorship is the Law of Rule. When the forces of democracy finally topple the old regime (which they always do), the clarion call is for the Rule of Law. In order for civil society to evolve, the arbitrariness and capriciousness of the Law of Rule must be done away with.

But in nearly every one of those countries where the old regime has been replaced, the old dictator has either taken refuge in a friendly country or met a gruesome end. This past week in Libya was no exception. Col. Muammar Gaddafi was killed after attempting to escape from his hometown of Sirte.

The former dictator was found hiding in a culvert after his convoy came under fire from NATO forces.

Exactly how Col. Gaddafi met his end is not certain. What is certain is that it was an extra-judicial killing - in other words, Col. Gaddafi was murdered.

Sure, not too many folks are going to be too upset that he's dead. But, does killing a defenseless man who has just been captured make life in the new Libya any better than life in the old Libya? What does it say about the prospects of the Rule of Law?

A larger question is whether NATO forces should have been involved in what amounted to a civil war in Libya. Was there any justification for outside forces to align themselves directly with one side in an internal conflict in another part of the world? Let's not kid ourselves, by declaring no-fly zones in Libya, NATO was providing support for anti-Gaddafi forces in the country. What price will be paid by the new government? What promises were made? What was the cost of NATO's air power?

The task in Libya is now to establish a new government and constitution and to implement the Rule of Law so that all of the trappings of a democratic society can evolve. Unfortunately, the first chance the new rulers had to implement the Rule of Law was an abject failure.

See also:

"Another one down," Gamso for the Defense (Oct. 21, 2011)
"On the killing of Moammar Gaddafi," Koehler Law Blog (Oct. 21, 2011)
"Mystery surrounds Gaddafi's end," BBC News (Oct. 21, 2011)

Friday, October 21, 2011

Some more jury math

This past week I tried a DWI case in Harris County (that ended in an acquittal) and we used a series of scaled questions to obtain information from each of the jurors. The questions ranged from the jurors' attitudes toward police witnesses to their views on whether order is more important than liberty. Some of the questions pertain directly to trying the case and others seek to determine whether the juror is more individual-oriented or state-oriented.

The panel consisted of 20 people. The judge struck three for cause on his own motion (and made it quite clear during voir dire who they were). He told one juror that she was not going to be on the panel before I ever asked my first question. The judge also sustained an objection to my first question and pretty much instructed the panel how to answer it. Therefore, the results are based on 19 jurors answering five questions.

The panel consisted of 10 women and 9 men. Eleven of the panelists were white, six were Hispanic and two were African-American. There were three panelists in their 20's, three in their 30's, three in their 40's, three in their 50's and eight panelists were over the age of 60. On the actual jury there were five women and one man. Four of the jurors were white, one was Hispanic and one was African-American. Four of the actual jurors were over the age of 60, one was in his 30's and one was in her 40's.

A little word of warning - there were a few jurors whom I think answered with 5's for the last two questions because that seemed to be a reasonable position to take (in the middle).

The first question asked jurors to rate (on a scale of 0-10) how much weight they would give the testimony of a police officer solely because he wears a badge. The higher the number, the more weight they would give the officer's testimony.

The panel as a whole averaged a 0.2. The three jurors we struck, and the three jurors the state struck, averaged a 0.0. The six people (one man, five women) who heard the case averaged a 0.0.

The next question asked jurors to rate (on a scale of 0-10) whether they would hold it against my client if he didn't testify. The higher the number, the more they would hold it against him.

The panel as a whole averaged a 1.8. The three jurors we struck averaged a 1.3. The three jurors the state struck averaged a 3.0. The average for the actual jury members was a 1.7.

The third question asked jurors to rate (on a scale of 0-10) how much they agreed that it was better for 10 guilty men to go free than for one innocent man to be convicted. The lower the number, the more they agreed with the statement and the stronger they adhered to the presumption of innocence.

The panel as a whole averaged a 0.7. The three jurors we struck averaged a 1.0. The three jurors the state struck averaged a 0.0. The average for the actual jury members was a 1.3.

The fourth question asked jurors to rate (on a scale of 0-10) whether they felt that liberty or order was more important. The higher the number, the more they believed that order was paramount; therefore, the more state-oriented was the juror.

The panel as a whole averaged a 4.9. The three jurors we struck, as well as the three jurors the state struck, averaged a 5.0. The average for the actual jury was 5.0.

The final question asked the jurors to rate (on a scale of 0-10) which was a greater danger to liberty: overzealous law enforcement or criminals. The lower the number, the more they believed that overzealous law enforcement was the greater threat and the more individual-oriented was the juror.

The panel as a whole averaged a 5.6. The three jurors we struck averaged a 7.7. The three jurors the state struck averaged a 5.0. The average for the actual jury was 6.0.

The average answer for the panel as a whole (to all five questions) was 2.7. The average answer the three jurors we struck was 3.0. The average for the three the state struck was 2.6. The average for the six who sat on the jury was 2.8. Two of the actual jurors had previously served on a criminal jury. The foreperson indicated to me afterward that she found it harder to make a decision in this case case than in a murder case.

Both the panel as a whole and the six folks who served on the jury indicated that they wouldn't give a police officer "head start" and that there was little likelihood that they would hold my client's silence against him. They also indicated that they had no problem releasing a guilty man in order to avoid convicting an innocent man. The questions also indicated that this panel was a bit more state-oriented than individual-oriented.

Our decisions on strikes had more to do with the answers to other questions than they did with the answers to the scaled questions. In fact, we pretty much decided on our strikes before even considering the answers to the scaled questions.

When going back and doing the math, the panel was actually more favorable to our side than it seemed at the time.

Thursday, October 20, 2011

Isn't it ironic? (Don't you think?)

Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.

The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.

Enjoy the irony...

Wednesday, October 19, 2011

Riding in style

This past Saturday night my wife ran off to the grocery store while I got the girls ready for bed. After the nighttime routine was over my wife told me she had rented a movie from one of the red boxes and she was hoping we hadn't watched it already.

She had come home with The Lincoln Lawyer.

I hadn't seen it and knew next to nothing about it. When I first heard the name of the movie I thought it was a movie about Abraham Lincoln. There were some e-mails on the listserv about it, but I never bothered reading any of them. I was quite surprised when I saw an ad on Facebook that mentioned Matthew McConaughey starred in it. That didn't seem like a movie about Lincoln.

As a rule I try to stay away from television shows and movies about lawyers and criminal law. It drives me crazy watching it. I will admit, though, that I do watch Law and Order: UK on occasion and I did like George Clooney's movie Michael Clayton.

My wife kept asking me during the movie if that's how things really are. I told her no. Well, that's not exactly true. Courthouses do have metal detectors.

The movie itself was fairly entertaining. The characters were interesting and it moved at a pretty good pace. But I was very troubled by the way in which Mr. McConaughey's character resolved his little moral and ethical dilemma.

We deal with some rather shady characters and some pretty bad circumstances at times. Let's face it, most of your neighbors probably aren't getting arrested and carted off to jail. But what would you do if you found out that your new client committed the murder for which you encouraged an old client to plea to? What if you found out that your old client really was innocent and was sitting in prison because of what your new client did?

The first thing the attorney should have done was withdraw from the case. There is obviously a conflict. I understand the reluctance to part ways with a six-figure fee, but you can't represent the new client if it puts you in a conflict with your old client.

Eliciting testimony that you know is perjured is also frowned upon - especially when the witness got the story from an agent of yours. It's all well and good that you manufactured a dismissal when you impeached the snitch - but still. Would you really want to go before the disciplinary committee and explain that away?

Finally, setting up your client to be arrested and then beaten down is generally frowned upon in the legal community.

Now I would agree that no one really wants to sit down and see what a day in our lives is really like. It'd probably be more palatable to watch sausage being made. I also understand that Hollywood's protagonist must be on the side of "justice" in order to sell a film in which the man seems so damn seedy. But what you're left with is a lawyer who sold his client down the river and violated every ethics rule in sight (not to mention a few provisions of the penal code).

Tuesday, October 18, 2011

Staggering dockets won't relieve jail overcrowding

Harris County Sheriff Adrian Garcia has taken it upon himself to try to resolve the county's long-term problem of jail overcrowding. It's too bad that it won't solve a thing.

There are 22 district (felony) criminal courts and 15 county courts-at-law (misdemeanor) in the Harris County Criminal (In)justice Center. There is a "holdover" cell in each courtroom that is supposed to hold no more than 19 inmates. As they would say across the pond, that guideline is honored more in the breach than in the observance.

There is a giant holding cell in the tunnel between the county jail and the courthouse that can hold roughly 250 inmates. Now do the math. Thirty-seven courts with 19 inmates is a bit more than 250. The overflow inmates are lined up in the tunnel where they wait.

What is one to do?

Sheriff Garcia decided to stagger the times he has inmates delivered to courtrooms.This means that an attorney may walk into a courtroom and have no idea when his client might be brought over.

The problem with Sheriff Garcia's plan to alleviate overcrowding is that it doesn't. His plan only treats the symptoms, not the disease.

The way to reduce jail overcrowding in Harris County is to find a way to get those people in jail awaiting trial out of jail. Every person brought into the county jail is innocent unless proven guilty. To force someone to stay behind bars due to the arbitrariness of the county's bail schedule is a crime.

The first blog post I wrote dealt with the need to increase the number of personal bonds issued. Every person without a prior criminal record arrested for a non-violent offense should be released with a personal bond. The only reason to keep them behind bars is to coerce a plea out of them. Just wave that offer of time served in front of their face and they will gladly plead guilty to something they didn't do just to get out of that hellhole.

The other way to reduce the jail population in Harris County is to issue citations and summonses for non-violent misdemeanor drug possession cases. Confiscate the goods, issue the person a ticket along with a summons ordering them to appear in court on a certain day at a certain time under threat of arrest.

We need to do away with this notion that anyone charged with domestic assault must be held without bail until such time as he can see a magistrate so a temporary protective order can be issued. If we can find judges who are more than willing to hang around the courthouse (or by a fax machine) at all hours of the night to sign fill-in-the-blank warrants authorizing forcible blood draws, certainly we can find a judge or two who can sign an emergency protective order on short notice. It's not like they're going to read it or set a hearing to determine whether it's necessary or not.

Sheriff Garcia's plan addresses none of these issues.

Monday, October 17, 2011

Eleven years for what?

Can someone please explain to me exactly what Raj Rajaratnam did to merit a sentence of 11 years in federal prison?

I understand he was convicted of insider trading. I understand that he made an obscene amount of money - some of which may have been due to his having access to information that other folks didn't have.

But why is what he was accused of doing bad? Why is it a crime? Who is the victim?

Mr. Rajaratnam received information from corporate insiders that he used to buy and sell securities for his hedge fund. If he was buying it was a good bet that the price of the security was rising. If the price of the security was rising then anyone else who held shares was making money. If he was selling it was a good bet that the price was headed downward. But his sale of shares didn't harm other shareholders - the price was going down regardless of whether he sold or not.

We're all looking for someone who has access to inside information. Defense attorneys who used to be prosecutors want every potential client know that they used to work on the other side. Why? Because someone might think that attorney has access to certain deals that no one else does.

Looking to get into the stock market? I bet you're going to look for a broker who claims to have knowledge that no one else does. Maybe it's because of the hours he spends poring over earnings reports (doubtful). Maybe it's because of the software he has that analyzes technical trends in the market. Maybe it's because he knows people who know people.

Mr. Rajaratnam didn't manipulate the market. He didn't run a Ponzi scheme. He made trades based on the information he was given. How does that differ from the person researching Company A to see what makes it a better buy that Company B?

No, we don't all have access to the same information. But for those who invested in Mr. Rajaratnam's hedge fund, they had access to it. They made money. He delivered exactly what he promised to them.

Equity markets have never been about everyone having the same information. Prices move up and down because of inefficiencies caused by imperfect information. Someone is always going to know something that you don't. If that weren't the case, share prices would never fluctuate.

Mr. Rajaratnam broke the law. That's what a jury said. But did anyone in that courtroom question why what he did was a crime?

Ten paces at high noon

Republican Florida state representative Brad Drake has an idea on how to resolve the debate about the efficacy of the three drug lethal cocktail used in the state-sponsored killing of inmates. He says to hell with it.

Rep. Drake wants change Florida's method of murdering inmates from lethal injection to firing squad -- and if the condemned man doesn't like it, he can choose the electric chair.

Rep. Drake's proposal would get around states violating federal law by "off label" use of pentobarbital. And, if we're going to continue to allow the states to kill people, let's stop sanitizing it. Let the public see how rapidly we can race to the bottom to see which state can be the most barbaric.

As I have pointed out many times, the death penalty doesn't solve any societal problem - other than the need for politicians and prosecutors to beat their chests about how tough they are on crime. No one has ever been brought back to life as the result of the execution of their killer.

Rep. Drake said he got the idea for his bill after speaking to a constituent at the Waffle House. Now, I don't want to stereotype here, but if I want an intelligent conversation, I'm not so certain I'd be heading over to the local Waffle House. I guess the anecdote shows that Rep. Drake is one of the "people," but his job isn't to be one of the people. His job is to pass legislation necessary for the operation of the state.

Now if you want to do it up right, Mr. Drake, how about a bill that would require executions to be broadcast on television? Let's see this for what it is - bloodsport. Let the public see exactly what goes on. Let's see what the public's comfort level is for the reality of death.


Friday, October 14, 2011

Wanted: George W. Bush

Amnesty International has called on the Canadian government either to arrest former US President George W. Bush or to extradite him when he enters the country next week for his role in the torture of prisoners. From 2002-2009, the CIA tortured and humiliated prisoners whom were being held by the CIA.
"Canada is required by its international obligations to arrest and prosecute former President Bush given his responsibility for crimes under international law including torture," Susan Lee, Americas Director at Amnesty International said in a statement. "A failure by Canada to take action during his visit would violate the U.N. Convention against Torture and demonstrate contempt for fundamental human rights."
Mr. Bush later admitted to authorizing the use of waterboarding to coerce prisoners to cooperate with the CIA.  According to the CIA's own investigation, Zayn al Abidin Muhammed Husayn and Khalid Sheikh Mohammed were subjected to waterboarding some 266 times between them in 2002-2003.

Amnesty also points out, in a 1,000 page memorandum, that Mr. Bush presided over the torture of detainees held in military custody in Guantanamo, Afghanistan and Iraq. Mr. Bush cancelled a trip earlier this year to Switzerland when other human rights groups called for his arrest.

I wouldn't expect Canadian authorities to do anything. Why would they want to upset the apple cart and piss off their big brother to the south? Besides, the only time a former head of state ever has to answer for his role in crimes against humanity is if he was on the losing side.

“I cannot comment on individual cases… that said, Amnesty International cherry picks cases to publicize based on ideology. This kind of stunt helps explain why so many respected human rights advocates have abandoned Amnesty International.”  -- Canadian Minister of Citizenship and Immigration Jason Kenney
Of course it's up for debate whether the US is on the winning side of the mess in the Middle East as the occupation is now ten years old. And what does the government have to show for it? Saddam Hussein is dead - not that Mr. Hussein had anything to do with the 9/11 attacks or al-Qaeda - and now chaos reigns in Iraq where US troops are stuck in a quagmire of political instability. Osama bin-Laden is dead - but TSA is still scoping and groping to its heart's content. Afghanistan is the Asian equivalent of Dodge City and the US shows no sign of figuring out how to get out anytime soon. Syria and Yemen are tinderboxes with governments only holding on because they have shown no problems with turning the army's weapons on their own citizens.

It's so easy to make decisions affecting the lives of others when you don't have to worry about putting your own neck on the line. How's that for personal responsibility, Mr. Bush?

See also:

"Human rights groups ask Canada to arrest President George W. Bush," NPR's The Two Way (Oct. 13, 2011)

"Amnesty International seeks George W. Bush's arrest," Politico (Oct. 13, 2011)

"Bush's Swiss visit off after complaints on torture," Reuters (Feb. 5, 2011)

Trying to quiet the voices of dissent

Hank Williams, Jr. (who can't hold a candle to his father) may have gotten his panties in a wad after ESPN fired him for his comments comparing President Obama to Adolf Hitler, but his loss was only monetary.

Marzieh Vafamehr is an Iranian actress who starred in the Australian film My Tehran for Sale about an actress whose work was banned by the Iranian government. Ms. Vafamehr reportedly is facing a year in prison and 90 lashes for appearing in a movie critical of the Iranian regime.

Mr. Williams wasn't deprived of his First Amendment rights when ESPN decided they didn't want Monday Night Football to be associated with Mr. Williams after he made his comments. ESPN is a business who has a brand to protect (don't get me started on that). Mr. Williams was paid by ESPN to do the intro.

When working for a corporate master, one must be careful what one says lest the words reflect badly on the company. Mr. Williams wasn't careful and he paid the price.

Ms. Vafamehr, on the other hand, is being punished by a government because she had the nerve to appear in a film that cast the government in a bad light. Such an outcome would be anathema to our sensibilities in this country.

Just what is the Iranian government fearful of? Are the leaders worried that someone might see the film and question what the government is doing? Are they afraid that such expressions of protest might cause others to cast a critical eye and ear to what government officials do and say?

Of course if your government claims to be carrying out God's law, dissent might become an issue. You see, faith can't tolerate dissent or critical thinking. You either believe it or you don't. You allow someone to question the tenets of a religion and the walls will begin to crumble.

Governments that continue to crack down on dissent will realize soon enough that just because you criminalize dissent, doesn't mean there is no dissent. In this day and age you can't control the voices coming into the country. The internet, blogs, Twitter, satellites and smart phones have made it impossible to squelch popular dissent.

Dissent is healthy. It's the pressure valve on a pressure cooker. When people feel they have a voice and that someone is listening they are less likely to resort to violence. The Soviet Union thought it had eliminated dissent - but its leaders were sadly mistaken. Hosni Mubarak of Egypt thought he had squelched dissent through his use of violence against his people. Wrong again.

Ms. Vafamehr's sentence is the sign of an illegitimate government. It is symbolic of a regime whose base is crumbling beneath its own feet.

But more than that, her sentence is an attack on those of us who fight for freedom here and abroad. It is a crime against our humanity.


Here's a little Hank Williams for your enjoyment:

Thursday, October 13, 2011

County proposes plan to ration health care in case of emergency

If you're unhappy about the way your insurance company likes to question your doctor about the appropriate treatment for whatever ails you, you're going to love the new Harris County plan for dealing with a future flu pandemic.

After two years of drafting, the county is finalizing a plan on how to ration ventilators in the event of a flu outbreak the likes of which haven't been seen since the 1918 Spanish influenza epidemic that afflicted 500 million people and killed 50 million.

County officials have decided who will have access to a ventilator and who will be left to suffocate to death. Estimates are that a pandemic could cause over 10,000 residents to need a ventilator. Unfortunately, there are fewer than 400 unused ventilators in the county.
The Harris County plan notes that many patients with bird flu have required mechanical ventilation within 48 hours of hospitalization. In the event of a severe pandemic event, as many as 10,231 infected Harris County residents would need ventilators, the plan says, a number in addition to those already on ventilators for other conditions. Typically, there are less than 400 unused ventilators in Harris County at a given time.
Under the county's plan, folks needing the use of a ventilator would be placed into one of three categories: (1) patients who are healthy enough to recover without the use of a ventilator, (2) patients who are so sick that a ventilator won't matter and (3) patients who are sick but will recover with the use of a ventilator.

But it won't be the treating physician who will make that call. Nope. Say hello to the hospital review officer. That's right. A mid-level manager will be making those life and death decisions for you should you find yourself in need of a ventilator. After all, we can't possibly leave those kinds of decisions in the hands of medical professionals who have trained for years in the art of diagnosis and treatment - they'd just want everyone to have a ventilator. We need a bureaucrat with a pocket protector to work the calculus to determine who lives and who dies.

Lisa L. Dahm, an adjunct professor at South Texas College of Law, suggested that, in order to avoid lawsuits, county officials should push to suspend laws that require doctors to treat their patients with life-threatening conditions. Way to go, Ms. Dahm. Just brilliant how you took the focus off the ethics of a hospital administrator playing God to focus it on how to reduce the county's liability when someone's grandmother dies because the plan says she doesn't get a ventilator.
"These are difficult conversations none of us like to have. But the reality is, in a severe pandemic, there'll be serious shortages of medical resources and it behooves us to make the best possible ethical and clinical deliberations in advance about who should get them." -- Dr. Herminia Palacio, Director of the Harris County Health Department
In an ideal world we'll never know the public's reaction to the plan because the dreaded flu pandemic will never come. But, the increased use of flu shots will only serve to strengthen the resistance of the virus (much like gonorrhea has overpowered our arsenal of drugs). Oh, that damn law of unintended consequences can be such a bitch sometimes.

The public was invited to participate in the discussions and each participant received $75 per day. Would the fact that these meetings were held during a time when there was no fear of a pandemic affect the discussions? Would the fact that participants received a small stipend have an effect on the outcome of the meetings? William Winslade, an ethicist with the University of Texas Medical Branch thinks so. Hey, it's easy to toss around ideas like that when there's no pandemic in sight. And who would complain when they're getting paid much better than jurors to sit around a table and discuss the issue?

It's interesting that this plan is being drafted by unelected officials instead of the commissioners chosen by the people to govern the county. Is that because Ed Emmett and company don't want to take the heat from residents about rationing health care in case of an emergency? One would think that elected public officials who are paid by our tax dollars would have enough integrity to take a stand.

But, I've learned over the years never to start a sentence with the phrase one would think.

Wednesday, October 12, 2011

Shhh! It's a secret

Naturally the very existence of the document is a national security secret (or at least a pinkie-swear secret) - but what you expect when the document in question is used to justify the murder of an American by his own government?

Jeff Gamso had the right idea this past Sunday. Reading about the memo and what may, or may not, be contained within is the equivalent of one of those friend of a friend stories that Jan Harold Brunvand collected in his quest for urban legends.  

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.
The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.
The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

President Obama wasted no opportunity to claim credit for the killing of Mr. Awlaki (al-Zawahri in the original article) when he thought it might get him support for his upcoming re-election bid. But, once the criticism began rolling in, President Obama and his minions circled their wagons. And now we have this secret memo (that supposedly exists) written for the express purpose of justifying state-sponsored murder.
The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
See, that's all you need to know. Our intelligence agencies said so - therefore it must be the truth. Because he said some bad things and because some people did some bad things we must kill him. We must ignore the Constitution in order to protect ourselves.

Or some line of garbage like that. We live in a society in which a great number of folks don't believe anything the government tells them. President Obama could tell everyone today is Wednesday and there will be a segment of the population convinced he is lying. Yet these same folks have no problem believing the government after it orders the killing of an American citizen.

But, if I were the president, maybe I'd rather deal with the muted backlash after ordering a hit on an American citizen rather than questions about how poorly the economy is performing.

Ignoring the problem won't make it go away

Let's build more prisons and fill 'em up with our society's undesirables. That ought to make the world a better place, don't you think?

No? You don't think that's the key to happiness and security and sunshine?

You're right. There are some folks on the other side of the pond that feel the same way. One of them is Will Self, and in this piece for the BBC he notes that prisons aren't very good at either rehabilitation or punishment. And, being that those are the twin goals of the penal system, that doesn't speak very well to efficacy of locking people up because they've done something society doesn't like.
It was Dostoevsky who said: "The degree of civilisation in a society is revealed by entering its prisons." But in contemporary Britain you don't even need to do this, you can simply stand on a street corner and wait for the ghosts to come flitting past in order to appreciate its parlous condition.
As the rate of violent crimes has decreased in this country, the rate of people sent to prison for drug crimes, and other nonviolent offenses, has increased. I once represented a man who had previously been sentenced to 10 years in the penitentiary for being in possession of a couple of rocks of crack cocaine. I have yet to hear anyone who can give me a logical explanation for why it makes sense for us to spend our money to house a drug addict in prison when he would be better off in a treatment program.

And it's not like his "jail therapy" worked as he was arrested again (for possessing three rocks) shortly after being paroled. If anyone can tell me why that makes sense, I'm all ears.

When you lock someone away in prison you're not going to rehabilitate him - particularly in this day when the governor and his henchmen are looking for any piece of low-hanging fruit they can find to cut from the budget. And if they're willing to sit by and watch as school districts lay off teachers or leave classroom positions open, what the hell do you think they'll do to funding for rehabilitation programs for inmates?

I mean, the fair-haired one has to have some money to pay the DPS to provide security for him while he tours the country watching his ill-fated presidential campaign slowly go down the toilet. And what about his wife and kids? You don't seriously expect them to go on vacation without a phalanx of state troopers, do you?
Of course, we aren't quite at the levels enjoyed by our closest allies, those prime exponents of the civilising mission the United States, whose extensive gulag now houses, it is estimated, more African American men than were enslaved immediately prior to their Civil War - but we're getting there.
Just let that one stew for a bit.

Sure, there are some folks who need to be locked up because they are unredeemable or because they have committed crimes of such a heinous nature. More and more we are seeing people sent to prison, not because they have committed some heinous crime but, instead, because they have committed enough minor crimes that the state no longer wants to deal with them. When a theft of less than $100 can be enhanced to a felony and the person sent to prison for two years of more - well, the system's not working. 

Contrary to the view of prison as a deterrent and a way of keeping criminals off the streets, almost all enlightened opinion now concurs in the following.
Not only does prison, for the vast majority of those who endure it, not work, either as punishment or as rehabilitation, but there is no escaping the conclusion that it functions as a stimulant to crime, rather than its bromide.

No one's going to argue that it isn't easier just to lock folks away and forget about them. We do that everyday with bills or phone messages we don't want to return. But we're talking about people's lives here. We talking about their lives and the lives of their families. It/s time to re-examine the way we do things in our criminal (in)justice system. It's time we start asking questions. It's time we start asking Why?

We can either fix it or we can sit and watch it collapse under its own weight.

Tuesday, October 11, 2011

The wisdom of a seven-year-old

Yesterday my oldest daughter was off from school because of Columbus Day. Now, I've never understood why Columbus Day was even a holiday in the first place. Maybe it's because I'm from the South. Or maybe it's because I'm Irish. I don't know. It never seemed holiday material in the first place.

I'll admit it was an impressive feat to sail across the ocean and get so lost you thought you were on the other side of the world (but that's something that happens routinely on college campuses, but that's another story for another day). But it's akin to my stubbing my toe on my neighbor's driveway and claiming I discovered a house.

But I digress...

Since no one outside the school district or the post office thought much of Columbus Day, my wife still had to teach at the local college and my youngest still had to go to her Pre-K class. Since I had to appear in municipal court Monday morning I thought it was time for a civics lesson for my oldest.

I mean, after all, that you can tell a lot about a people by the way they handle traffic court. You will find living proof that when you give authority to a person near the bottom of the food chain that strange things happen. You can also find out how unprepared young attorneys who went straight from law school to BigLaw are for the real world.

My client has a commercial driver's license so, through the collective genius of our state legislature (thank goodness they're only in session 140 days every other year -- I can't begin to imagine the harm they could do if they met regularly), our choices were to plead guilty, hope for a dismissal or take it to trial. And, since the complaint wasn't fatally flawed, we chose Option No. 3.

Since the officer didn't have to be in court until 1:00 pm (thank you, Mayor Parker, for yet another bit of absolute idiocy from City Hall), the judge was gracious enough to dismiss my client, my daughter and I for the morning.

We came back in the afternoon to find that the officer had signed in, but that the court would be hearing a case from 2008 (that's right, a jury trial for a speeding ticket issued over three years ago), that our case would be reset. My client wasn't altogether thrilled but she was aware of the consequences of pleading out the case.

As it turned out, a colleague of mine was trying the speeding case. I looked at my watch (knowing I had to get my daughter to her Brownies meeting at 3pm) and decided we would stay for voir dire because what could be more illustrative of democracy in action that a jury trial? I suppose you could say being stuck in a traffic jam would be metaphorically correct but let's not go there today.

As per custom, the prosecutor's voir dire was horrid. It was blah, blah, blah, blah, blah. Then a pause for a yes-no question - then more blah, blah, blah, blah. That was followed by his apologies for the panel having to show up to hear a mere traffic case - like someone our state right to a trial by jury in any criminal case wasn't all that important.

My colleague then got up and thanked the jurors for coming and then pointed out that even though this was just a traffic ticket case, his client had the same rights as a man on trial for murder. I thought it was a good counter to the prosecutor's attempt to downplay the need to actually pay attention to the trial. My colleague then spoke about how sometimes it might be reasonable and prudent to drive below the posted speed limit and sometimes it might be reasonable and prudent to drive above the posted speed limit (in Texas we have a "presumptive" speed limit which means it's not necessarily against the law to drive over the limit, so long as your speed was reasonable and prudent given the circumstances existing at the time you were driving).

Don't ask me how the trial turned out because I have no idea - we had to leave right after voir dire to get to the Brownies meeting. But, on the way back to the car my daughter and I talked about what we had just seen. I told her that I thought both attorneys talked way too much. I had no idea how any of the jurors (with the exception of one woman) felt about any issues or what their attitudes toward the presumption of innocence were. My daughter then made the point that needed making -- you learn more by listening than you do by speaking.

If you want to find out what someone's thinking, you don't ask them a yes-no question. You ask them an open-ended question that allows them to elaborate. Or you ask them a scaled question that can give you a gauge of how strongly they hold an opinion. If you don't then you're going to end up with a jury comprised of the folks that never spoke up and you will have no idea what to expect of them.

Instead of giving an example of when it might be appropriate to drive under the posted speed limit (icy roads), why not ask the panel to give some examples of their own. Instead of giving them an example of when you might need to drive over the speed limit, ask them when it might be reasonable and prudent to do so. Instead of asking the jurors to raise their hand if they'd believe the testimony of a police officer more than the testimony of your client, ask them to rate (pick your own scale) the credibility they'd give an officer's testimony solely because he wears a badge.

You might not get to cover all of your topics that way, but you'll have more information on your chart and, if you keep a list of questions you'd ask if time weren't limited, you can ask the judge for additional time so that you can ask those questions. You just might get what you ask for -- and, if you don't, you've got an issue for appeal.

Voir dire is the only time during a trial that you have the opportunity to speak directly to the jurors and find out what makes them tick. Don't waste that opportunity by lecturing them. Take advantage of it by listening to them.

Search warrants for dummies

Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:

MoCo Search Warrant

There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.

This is your government at work - against you and your rights.

Monday, October 10, 2011

Update: Houston, occupied

Dear Media and Others;
The peaceful OccupyHouston demonstrators present at Eleanor Tinsley Park have just been informed by the Houston Police that they must remove their tents and lean-tos that keep them out of the rain and intense heat so that they may continue to peacefully protest and exert their Constitutional rights to assemble and petition their government for redress of grievances and to Freedom of Speech and Expression.  It is possible that the police officer's order alone violates these rights as it has put a chill upon them.  Notice has been sent (see below) to the Mayor and City Council. 
Randall L. Kallinen
Oh, Mayor Parker, how incredibly short-sighted of you. A group of young people are out exercising their most basic of constitutional rights and you're more concerned about tents in Buffalo Bayou Park. 

I guess if the tents and lean-tos were sponsored by the various oil, energy, financial and law firms downtown it'd be okay. We could just call it the ExxonMobilChevronTexacoReliantCenterpointDynegyWellsFargoJPMorganChaseBakerBottsFulbrightGuiliani Occupation of Houston, charge $5 for admission and $10 for 20 tickets redeemable for turkey legs, funnel cakes or sausage on a stick and we'd be in business.

If you want to draw attention to the protest, Mayor Parker, what better way than to send the stormtroopers police into the park to remove the tents and protesters. Do you really think that would end it? Do you not think that such action might draw out more supporters?

The mayor doesn't seem to care that the Chief of Police is putting one of men responsible for trying to cover up another officer's DWI, in charge of the DWI task force, but, put a tent in a park and she's all over that like white on rice.

To: atlarge1 <>; atlarge2 <>; atlarge3 <>; atlarge4 <>; atlarge5 <>; districta <>; districtb <>; districtc <>; districtd <>; districte <>; districtf <>; districtg <>; districth <>; districti <>; mayor <>; 
Sent: Mon, Oct 10, 2011 2:27 pm  
Subject: URGENT NOTICE Houston Police Plan To Violate First Amendment Now 
Dear Mayor Parker and Councilmembers, The peaceful demonstrators present at Eleanor Tinsley Park have been informed by the Houston Police that they must remove their tents and lean-tos that keep them out of the rain and intense heat so that they may continue to peacefully protest and exert their Constitutional rights to assemble and petition their government for redress of grievances and to Freedom of Speech and Expression.  It is possible that the police officer's order alone violates these rights as it has put a chill upon them.  Please inform your Houston City police employees to inform the peaceful protestors that they do not have remove their structures immediately.  Thank you.    Sincerely,
Randall L. Kallinen

According to this account from the Houston Chronicle, protesters have taken down the tents.

Occupy Houston protesters at Eleanor Tinsley Park have taken down their tents after being told they violate a city ordinance, an attorney for the group said Monday afternoon.

Police notified participants about 1 p.m. that the tents needed to come down, said Burke Moore. The group did not have the required permits needed to erect the tents, Moore said.
Protesters were allowed the use the tents on Sunday, for protection from the rain, participants said. The weather has since cleared up.
Police this afternoon spoke with Moore about dismantling the tents, he said. The attorney said the group, as a whole, decided to comply. One person did not want to comply, but the group acts by consensus, Moore added.

The sorcerer's apprentice: HPD version

Somewhere deep inside the HPD fortress at 1201 Travis...

Chief: So, we're looking for someone to take the helm of the DWI task force in Houston. What makes you think you're up for the task?

Candidate: I have experience in investigating high-profile DWI incidents. We had to deal with one involving one of my officers earlier this year - and I think we did a bang up job taking care of it.

Chief: I'm intrigued. Do continue.

Candidate: As you may recall, we had a veteran officer get involved in an accident on his way to work one afternoon. The other vehicle was a school bus. My officers jumped onto it right away. They secured the scene. They preserved evidence by covering up the open alcohol containers with blankets and threatening to arrest anyone who took pictures of the bottles.

Chief: (moving to the edge of his seat) Go on.

Candidate: We cited the bus driver for causing the accident - and then we took our officer back to the station to sober up, I mean, to continue our investigation away from the crowds and cameras and the like.

Chief: Tell me about the investigation.

Candidate: The officer admitted to drinking. It's not like he had a choice, because he did have an odor of alcohol on his breath. But, as you know, Chief, it's not against the law in Texas to have a little drink and then drive.

Chief: What else did y'all do?

Candidate: Reluctantly we drew blood. The test result came back showing an alcohol concentration of over .20. I'm pretty sure there were some issues with that blood draw. Maybe the blood wasn't stored properly. Maybe he was still in the absorption phase at the time of the accident. Maybe there was a problem with the testing equipment. I don't know - but I do know we handled that investigation in the most professional manner possible.

Chief: And you realize that I only reprimanded y'all because the public demanded it. If it was up to me, I'd have handed out commendations for the way your officers handled that case. And, hey, it gave some of the guys a day off to take care of errands or to work extra jobs.

Candidate: Yes, sir.

Chief: You've convinced me that you're the right person for the job. I'm putting you in charge of the DWI task force. If you can handle a case like that one as cleanly and professionally as you did, I think you're more than capable of clearing the road of those drunken civilians.

Of course, nothing like that could ever happen, could it?

Friday, October 7, 2011

Houston, occupied

Protesters took to the streets of downtown Houston this morning as they marched from Market Square Park to a rally at the Chase Tower and then on to the steps of City Hall.

The march was part of a national day of action in support of the Occupy Wall Street campaign in New York. Political activists of various stripes, shades and hues gathered and expressed their dissatisfaction at the way the government has been running the economy.

I spent a bit of time talking with a veteran political activist who took me around and showed me the different signs on the grass by the reflecting pond, the chalked messages on the steps of City Hall and some of the folks in the crowd.

Where this movement may go in Houston is anyone's guess. But for a few hours at least there were folks standing on the street corners with signs and drivers honking their horns in approval as they passed by.

The message is one that needs to be heard. Our tax dollars have been handed out to corporate beggars at the same time the government has cut programs geared to the poor. We've bailed out the banks who ran their own ships ashore with their questionable lending practices. We've bailed out the automakers who mismanaged themselves into the ground. But what has Washington done for the millions of homeowners facing foreclosure? What has Washington done for the millions who are without work?

Those on the right are calling this movement class warfare. Yes, it's a nice little soundbite that trivializes the problems millions of Americans are facing - but it is, at its core, a lie. The poor have been the targets of class warfare on the part of the wealthy for years. Ronald Reagan was at the vanguard of the latest class war as he and his minions led an assault on the working poor that was staggering in scale. The purveyors of this war have attacked public education, organized labor and the poor mercilessly. At the same time they have lavished gifts on the corporate profiteers.

There is a class war being waged in this country -- and we're just the collateral damage.