Oh, I'm sorry, was that the record button I just pushed?

On Wednesday Grits for Breakfast gave us the inside scoop on a scandal in Austin over video-monitoring at the county jail. It seems that, despite promises to the contrary, that the contractor running the system records video conferences between inmates and their attorneys. As a result a federal lawsuit has been filed in Travis County seeking to stop the recording and to destroy all existing recordings.

The company, Securus Technologies, claims that the problem lies with deputies working in the jail not checking a box on a form. Oops.

Now that tells us that the default is to record the conversations. That isn't what the company promised attorneys. That isn't what the county promised attorneys.

Says Grits:

The Sheriff and DA say the recorded attorney client conversations were mistakes, the result of deputies failing to check the appropriate boxes on computerized forms. But those mechanisms are internal to the Sheriff and there's no mechanism for defense counsel to ascertain whether their conversations were recorded or shared with prosecutors unless the state later hands them over, by which time any strategic damage has been done. Said Austin Criminal Defense Lawyers Association president Bradley Hargis, “Basically, we just have to trust the sheriff and prosecutors not to listen to these calls but we have no way to verify they won’t.”

Grits goes on to say that the same issues have been raised in other states in which Securus installed and managed a video conferencing system for the jail. In each case the company, and the government, lied to attorneys about the technology. In each case the company, and the government, shifted the blame.

Securus Technologies is the same company hired by Harris County to run its video conferencing system. When the county first introduced the idea both county officials and the company swore up and down that none of the conversations would be recorded.

We now know that was a lie.

Back in 2012 I wrote an article following Sheriff Adrian Garcia's announcement that video conferencing was coming to the Harris County Jail. It now seems somewhat prophetic:

But do you really know for sure? The county maintains the equipment. The county maintains the software. You know, the same people who are trying to convict your client of whatever alleged misdeed he committed. Are you really having a secure conversation?

Jails maintain visitor logs. They record all outgoing inmate calls. They read all the mail - both incoming and outgoing - unless (fingers crossed) it says "attorney-client communication" (or words to that effect) on the envelope. What are they doing with the video feeds?

Does the software just facilitate the transfer of video and audio from one monitor to another? Does the software allow the state to "capture" audio or video? Does the software allow a third party to monitor the communication?

Does it really come as a surprise that we were lied to (again)? It shouldn't. Anyone who bought the promises of Securus and Harris County really needs to get their head examined because there are some synapses that aren't firing on all cylinders.

And it doesn't really matter if no one from the DA's office or law enforcement ever listens to, or views, the conferences. The mere fact that the state has a back door available to obtain privileged communications is troubling enough. And we should all be aware of the fact that in 2014, any back door that is available will be exploited by the government.

So the next time someone from the government stands up and says they have a great idea that will make life easier for defense attorneys, ask yourself why on earth the state would do anything at all to help us defend our clients.

Come on, baby, (don't) drive my car

Just this week the California legislature passed a bill that will allow driverless cars on the state's roadways by 2015. Proponents claim the new cars, equipped with sensors out the wazoo, will be safer than the ones driven by humans.

But, assuming the DMV drafts rules regulating driverless cars by 2015, as the bill callls for, the concept raises some interesting questions. For instance, could the operator of a driverless car be charged with driving while intoxicated? Will the presence of driverless cars cause the state to redefine what it means to operate a car? Might the existence of driverless cars actually encourage folks to go out and drink too much knowing that they can just sit in the car, push start and kick back until they reach their driveway?

And, since I feel the need to burst a bubble or two along the way, just how much trust would you be willing to place in the technology operating the car? Computers and smart phones crash at the most inopportune times. DVRs go on the fritz. The microwave decides not to work anymore. Are you willing to sit in that seat and watch the world go by while giving up all control of the car?

And who ends up being liable in the event of an accident? Is it the person sitting behind the wheel? Is it the manufacturer of the car? Is it the manufacturer of the sensors?

In the meantime, enjoy a little Gary Numan...

We now return to our regularly scheduled programming

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

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

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

Clearly this wasn't working.



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

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

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

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

Blogger is currently unavailable

Blogger is unavailable right now. We apologize for this interruption in service.

Please visit Blogger Status for additional details.

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

Blogger Status

Friday, May 13, 2011

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

Posted by at 06:07 PDT

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

Posted by at 04:25 PDT

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

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

Jurors, technology and confrontation

Mike Masnik of the Techdirt blog asks why shouldn't jurors be allowed to do a little online research outside the courtroom. His view is since jurors come to the table with their outside experiences, biases and prejudices, what harm would it do to allow the smart ones to use a little technology to aid their decision-making.

Courts are increasingly looking to ban jurors from using any kind of technology. And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense?

So, if we can admit that jurors are always bringing outside information (in the form of their own life history and knowledge) into the court room, can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?

First off might be the oath that jurors in Texas take before any evidence is presented. Texas Code of Criminal Procedure Art. 35.22 states the the court shall administer the following oath to the jury:

"You and each of you do solemnly swear that in the case of the State of Texas [against the defendant], you will a true verdict render according to the law and the evidence, so help you God."

The evidence refers to any pictures, photographs, charts, graphs, tangible items and testimony introduced and admitted at trial. There are plenty of items that might qualify as evidence that a crime was committed, but are deemed inadmissible as a result of the law.

To allow the use of technology by jurors would also gut the Confrontation Clause of the sixth amendment. The defendant in a criminal matter has the right to cross-examine the witnesses brought against him. Cross-examination can be used to attack the witness' account of the event or to challenge the assumptions or bases of a scientific opinion or to impeach the witness. If Joe Juror googles the defendant on his computer one night, the defendant is robbed of his right to challenge the information.

Here is one of the more interesting comments to Mr. Masnik's post:

Wrong argument Mike

by Just Joe

Mike, I normally agree with a lot of what you write about. In this case I think you've gone the wrong way.

Juries are like an antiquated business model. Choosing 12 random people to make decisions that can affect the next 5-50 years of someone's life seems like a poor way to do things. I don't care so much about the tech they have access to so much as I care who these people actually are.

Shouldn't we think more along the lines of choosing professional juries? People who are experts in given fields and can make informed decisions about the evidence presented.

I just don't think choosing 12 people who were not bright enough to get out of jury duty is the best way to go about things.

Who would serve on the jury for a DWI case? A kiddie porn case? A rape case?

Thanks to Dr. Dennis C. Elias, Ph.D. for spotting Mr. Masnik's article.

The LackBerry Bold

Last week my Dash crashed on me. That sucked. Instead of having access to my contacts and my calendar at my fingertips outside the office, all I had was a phone. Couldn't access the internet and couldn't "sync" it up with Outlook.

A former client of mine is a phone dealer. I told him I wanted the new Dash 3G. He told me I should get the new BlackBerry Bold 9700. He told me it was the most advanced phone out there and that I'd love it. So I told him to get me one.

I picked it up from him on Saturday morning and was excited to play with it. That's when the nightmare began. It was so "technologically advanced" that it was impossible to set the clock without calling tech support. Due to household chores and a housewarming party it was nearly impossible for me to do much more than charge the battery on the phone over the weekend.

I did try to set up my e-mail but, no matter what I did, the icon for managing e-mail would never appear on the screen and I couldn't find any other way to set up my e-mail accounts otherwise. On Monday morning I called tech support about setting up my e-mail and was told I would have to upgrade my internet service to BlackBerry internet in order to receive e-mails on the phone. Then she told me it would take between 2 and 48 hours to set it up. That's a worse time frame than the damn phone company.

That was it. I decided to get a Dash instead, but the nearest dealer was out. So I called a store by the house and drove out in the pouring rain to get the new Dash. The customer service rep told me she could get me hooked up with the upgraded internet service in less than 2 hours -- which still made the phone useless since I had to head down to Galveston in a little over 90 minutes.

After handling the jail docket on the island I was able to set up my e-mail on the phone. Now all I had to do was "sync" up Outlook so I could get my contacts, my calendar and my e-mail. Unfortunately the phone would only download my contacts, calendar and tasks from Outlook. It wouldn't "sync" up my Outlook e-mail inbox.

I called tech support and was transferred to RIM (the manufacturers of the software that runs the BlackBerry). Then I found out the terrible news -- there was no way to "sync" up my Outlook e-mail inbox to the BlackBerry. This meant that once an e-mail from my internet server was forwarded to Outlook, I could no longer access it on the phone. Absolutely unacceptable.

Now, after spending hours trying to set this phone up how I needed it set up for my work situation, I have no choice but to get rid of this expensive paperweight and head back to the store to pick up the phone I wanted in the first place.

And before anyone tells me how wonderful the iPhone is -- I don't want one. I have never wanted one. I don't want a touch screen phone. Besides, you can't get one for T-Mobile (and I'm not changing carriers).

Excuse me while I beat my head up against the wall.