Where it's worse to smoke a joint than beat up your wife

Last week Baltimore Ravens running back Ray Rice was suspended for two games without pay for an incident in which he knocked his (now) wife out and dragged her out of an elevator unconscious. He was indicted by an Atlantic County (NJ) grand jury. Mr. Rice was then accepted into a pretrial intervention program in which after he completes a year on probation, the case will be dismissed. 

Justin Blackmon, a receiver for the Jacksonville Jaguars, is currently on an indefinite suspension for his third violation of the NFL's substance abuse policy. The first violation did not result in a suspension. The second violation earned Mr. Blackmon a four-game suspension.

Josh Gordon, a receiver for the woeful Cleveland Browns, was hit with a one-year suspension after he was arrested for driving while intoxicated after already having failed at least one random drug test. Mr. Gordon was stopped for speeding and, after being arrested on suspicion of DWI, blew a .09 on a breath test.

And I guess I would be remiss if I didn't remind y'all that Ben Roethlisberger, the quarterback for the Pittsburgh Steelers, was suspended for six games back in 2010 after he was arrested, but not charged with sexually assaulting a 20-year-old college student in Georgia.

NFL Commissioner Roger Goodell and his lackeys have been making the sports-yak circuit trying to justify a policy that makes little or no sense. One NFL official, Adolpho Birch, appeared on ESPN Radio Monday morning and made a complete ass out of himself trying to justify Mr. Rice's two-game suspension.

What does it say about the NFL - and our society - that the penalty for smoking marijuana is more severe than the penalty for knocking your girlfriend unconscious? The fact that so many folks in authority still seem to buy into the propaganda film Reefer Madness so many years after it was made (and discredited) is one of those things that makes no sense.

And how can we even compare Mr. Gordon's misstep with what Mr. Rice did to his then-girlfriend in that elevator? 

If the point in the NFL's player conduct policy is to protect the corporate image of the league, why is Mr. Goodell more concerned about players smoking marijuana and driving while intoxicated? Shouldn't domestic assault be an area of more serious concern? It never ceases to amaze me how our puritanical views on pleasure and recreation lead us to such absurd results.

Now if you think that Mr. Blackmon and Mr. Gordon received the right punishment for their actions - I will respect that opinion. But, if their suspensions were justified, then Mr. Rice should be joining them on the outside looking in for the 2014 season.

Just another death in the Harris County Jail

On January 16, 2011, Norman Hicks was assaulted by a detention officer in the Harris County Jail. Christopher Pool hit Mr. Hicks in the face and left him lying on the floor bleeding. Six days later Mr. Hicks was dead as a result of complications from a heart attack after suffering a broken nose and blunt force trauma.

Two days after he was beaten by Officer Pool, Mr. Hicks was charged with the felony offense of harassment  in a correctional facility. The criminal complaint alleged that he threw a shirt covered with feces and urine at detention officer Pool on January 7, 2011.

It can hardly be a coincidence that nine days later Mr. Hicks, who was 72 at the time, found himself on the wrong end of Officer Pool's fist.

But what is not clear from the Harris County District Clerk's website is why Mr. Hicks was in jail in the first place. While he had been jailed for violating a protective order in 2010, there are no records of what he was charged with that landed him in jail in January. In September of 2010 a motion to adjudicate guilt in a felony domestic violence case was dismissed. Mr. Hicks was scheduled to appear for a review of his probation conditions on the mental health docket on the 18th - it was noted in the records that he was absent that day.

Mr. Hicks had a history of mental illness and had been jailed before on charges involving domestic violence.

On September 14, 2011, a Harris County Grand Jury cleared Officer Pool of any wrongdoing in the death of Mr. Hicks. It would seem to me that one could make a very compelling case that Officer Pool plotted his revenge after the alleged incident on January 7 and, when he had the opportunity, punched Mr. Hicks, almost 50 years his senior, in the face and then left him on the floor covered in blood.

But no one in the District Attorney's Office wanted to see a detention officer charged with criminally negligent homicide for killing an inmate. That would be too unseemly. But, they couldn't dismiss the case because the fallout from the community would be too great. So, someone decided to give a half-assed presentation to the grand jury so that Pat Lykos could blame the grand jury for no-billing Officer Pool if there was any outrage at the dismissal.

Now Mr. Pool, another detention officer and a sheriff's deputy have appealed their firings.

While Mr. Pool was no-billed by a grand jury, the fact remains that he used more force than was necessary in response to Mr. Hicks' actions. His callous act of punching Mr. Hicks in the face and leaving him on the ground unresponsive should give everyone pause. Is this the kind of person we want roaming the streets of Harris County carrying a loaded weapon and a taser? What would the reaction from prosecutors have been if the incident didn't involve a detention officer and an inmate? Would Joe Blow have been no-billed had he done the same thing to a neighbor who threw a feces-covered shirt at him?

The other two individuals were fired for not doing anything to help Mr. Hicks and for not reporting what they had seen. They both knew what Mr. Pool did was wrong. They both saw that Mr. Hicks was lying on the flood bleeding. And they both stood around and did absolutely nothing.

It's hard to decide whose conduct was worse.

Federalism? What's that?

Last Thursday, the US Senate renewed the Violence Against Women Act with 15 Republicans voting with their Democratic colleagues. The House is scheduled to vote on its version of a renewal next month. GOP congressmen are upset with three provisions of the bill that they claim cater to political interests. Of chief concern are provisions to assist gays and lesbians receive domestic abuse services, to issue special visas for women in the country illegally and to allow Indian tribal courts to handle domestic abuse cases that occur on reservations.

Of course the one issue missing in the debate is the need for such legislation. At last glance, all 50 states have laws on the books making assault a crime. Most states enhance penalties if the assault involved family violence. In Texas, for instance, if you are convicted of a misdemeanor assault and the court makes an affirmative finding of family violence, if it were to happen again you would be facing a felony charge.

Domestic assault is a state matter, not a federal matter. There is no reason that we should be federalizing domestic abuse cases - other than the political gains that can be made for standing on one side of the issue or the other.

As has been written on the blawgosphere many times before, there are far too many federal crimes. Most crimes that are prosecuted in the federal courts could just as easily be prosecuted in state courts. The only crime mentioned in the Constitution is treason.

But that has never stopped Congress from injecting itself into local matters at the drop of a hat. Texas Sen. John Cornyn, who claims to be in favor of limited government, wanted to give the states more money to test rape kits and wanted to impose stiffer sentences for certain domestic violence crimes.

Um, excuse me, Mr. Cornyn, but I believe the crimes you had in mind are already crimes in Texas and most, if not all, the other states. There's no need for a federal anti-stalking statute. Nor is there a glaring need to throw more folks in federal prisons for crimes that have no consequence on the citizens of the nation as a whole.

It is time we took a step back and began reducing the number of federal crimes on the books - particularly those federal crimes that require no mens rea, or guilty mind. Domestic violence is a problem; just not a problem that our friends up in Washington have any business trying to resolve.

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.

And then there were thirteen

Another Harris County judge bit the dust today as Judge Reagan Helm of County Criminal Court at Law No. 1 resigned on the eve of a hearing in which the Harris County District Attorney's Office sought to recuse him from all domestic violence cases.

It also comes one day after the long-time court reporter in that court, Don Rymer, was placed on deferred adjudication probation for one year and fined $4,000 for tampering with a government record.

Back in November the DA filed a motion to recuse Judge Helm due to comments he made from the bench that the DA characterized as "belittling."

See also:

"Due process rights? What due process rights?" The Defense Rests (Nov. 16, 2009)

Catching a tiger by the tale

Tiger Woods has now found himself in No Man's Land in the aftermath of his off-road excursion outside his Orlando mansion.

He is caught between the demands of his public image on the one hand and a criminal investigation on the other. Only two people know what really happened Thursday night in the Woods' household and neither one of them are speaking.

On the PR side of the equation, Tiger Woods has an image to protect and all the speculation about what went on that night is not doing him much good. To protect that image, Mr. Woods needs to get ahead of the curve and tell his fans and sponsors what happened and how he managed to crash his SUV into a tree just a few yards from his house.

On the other hand, however, law enforcement wants to know what happened as well and anything that Mr. Woods puts out publicly is going to be used by local law enforcement to pin something on someone. When you, or a family member, is the target of an investigation, the best thing to say is nothing.

And thus the dilemma that Mr. Woods is facing. It's a safe bet that no one is buying the story that Tiger Woods is a bad driver and that his wife rescued him by busting out the rear window of the SUV with a golf club. It's also a fairly safe bet that alcohol wasn't involved as I dare say the Florida Highway Patrol would not be so polite in waiting to interview Mr. Woods if he were suspected of driving while intoxicated.

If the truth is that Tiger Woods and his wife had a fight over his alleged adultery and that she scratched him on the face and chased him out of the house swinging a golf club, Mr. Woods' public persona will take a nasty hit. It's also true that taking a PR hit may be the only way to prevent domestic assault charges from being filed against his wife.

UPDATE:

Tiger Woods was cited today (12/1/09) for "careless driving" by the Florida Highway Patrol. The charge carries a fine and 4 points against his driver's license if convicted. Of course with no witnesses to the incident, it might be a bit hard for the state to prove its case.

Due process rights? What due process rights?

On November 10, 2009, the Harris County District Attorney's Office filed a motion seeking to recuse Judge Reagan Helm from hearing any domestic violence cases in his court. In its motion, the DA's office cites statements that Judge Helm allegedly made from the bench in five cases. The motion also cites statements Judge Helm made to male defendants who signed emergency protective orders (MOEP's).

Now I wasn't present in the courtroom for any of those cases (that I know of). I know many of the prosecutors who signed affidavits stating that their recitation of Judge Helm's remarks were true and accurate and I don't have any doubts about their truthfulness under oath.

The district attorney is alleging that Judge Helm has a personal bias when it comes to domestic violence. The motion alleges that this bias prevents Judge Helm from being impartial when presiding over such a case.

However, the DA's office takes its argument a little too far when it claims that Judge Helm's comments express an "extrajudicial belief to the prejudice of the State and the victims of family violence.

Pardon me if I'm mistaken, but a defendant in a criminal proceeding is innocent unless proven guilty beyond a reasonable doubt. Unless the jury decides that a crime has been committed, there is no victim. Prior to trial, there is an allegation that a criminal act occurred. There is an alleged victim - the complaining witness. But there is no crime.

Furthermore, in any criminal case filed, there are two parties (unless multiple defendants are being charged and tried together) -- the prosecution and the person accused. The alleged victim has no standing to complain to the court. If the alleged victim wants to be a party to a lawsuit, the civil courthouse and the family law center and both less than a block from the criminal courthouse.

There is one more thing that's a bit troubling about the DA's motion to recuse. In Texas any motion filed by one party must be served on all other parties to the litigation in a timely manner. Every motion filed in a criminal, civil or family case has a certificate of service attached in which the moving party "certifies" that he or she has served a copy of the motion on all other parties or attorneys.

The DA's motion was filed on November 10, 2009. Judge Helm denied the requested relief on November 11, 2009. I was notified by phone on November 12, 2009 that the motion had been filed. I received a copy of the motion by fax on November 13, 2009. I received a copy of the motion via certified mail this morning (November 16, 2009) - the envelope was postmarked November 13, 2009.

Why does this matter? According to Joshua Reiss of the Harris County District Attorney's Office, a "true and correct copy" of the motion was served on my office by certified mail on November 10, 2009.

I wasn't even notified by the DA's office about their motion until after the judge heard the motion. That's not timely notification. That's a violation of my client's due process rights. He had the right to be notified of the filing of the motion and to be present at the time the motion was heard. Over at the civil courthouse an attorney is required to notify all other counsel of any hearing date at least three days in advance (some hearings require more notice). If the District Attorney is going to cite the Texas Rules of Civil Procedure in its motion to recuse a judge in a criminal case, the least Ms. Lykos' crew can do is to follow the rules on notice.

The hidden danger of a domestic assault charge

You and your wife go out to a party one night and you both a little bit too much too drink.  On the way home you get into an argument over something petty.  However, by the time you get to the house, it's no longer a petty argument.  Voices raise and tempers flare.  Before you know it, you raise your hand and hit your wife.  She calls the police who come to the house, place you in handcuffs and take you downtown.

You're now charged with domestic assault, a Class A misdemeanor in Texas.  At your first court appearance the prosecutor offers you 12 months of deferred adjudication probation with the promise that the charge will be dismissed upon completion.  Do you take it?

Here's what the prosecutor didn't tell you and what an attorney not schooled in domestic assault cases might now know -- per Section 22.01(f)(1) of the Texas Penal Code, a plea of guilty or no contest to a domestic assault charge, in exchange for a grant of deferred adjudication, still counts as a conviction for enhancement purposes.  Should you be charged with a second domestic assault, you will be looking at a third degree felony.

If you've been charged with domestic assault, ask any prospective attorney what kind of experience they have dealing with domestic assault cases.  The failure to do so could be very costly.

Calling their bluff

If you followed my blogging on Twitter this morning, you know that I was set for trial in a domestic assault case in Harris County. Due to the large number of people still without power, no jury panels are being called this week.

Ordinarily that would be a good thing -- pushing judgment day off another month or so is always good for the client. However, in this case my client was being held on a "blue" warrant as he was on parole, and we wanted to resolve this matter as quickly as possible.

I knew that the state had yet to serve a subpoena on the reluctant complaining witness who had already completed an affidavit of non-prosecution and had told the DA's office she did not wish to see my client prosecuted for the alleged assault.

We decided to call the prosecutor's bluff. When the judge called the trial docket I announced ready. The judge asked me to approach and he told me there were no jury panels being called. I informed the judge that we were ready to try the case to the bench.

When the prosecutor arrived he told me he didn't know when we would actually try the case because he didn't believe that panels would be called next week. I told him we were ready to proceed with a bench trial at which point he told me he had a right to a jury trial and wanted to try it before a jury.

Then I told him that not only was his complaining witness not cooperating with the investigation but that his office had failed to serve her with a subpoena. He insisted they had. Having spoken with the complaining witness on Monday, I knew she hadn't been served.

The prosecutor went to speak with his investigator. Ten minutes later he returned and told me he was dumping the case.

This case was won because we called the prosecutor's bluff and didn't reveal our hole card until the right moment.