Am I missing something?

Back at the beginning of March, the Harris County District Attorney's Office introduced a new policy regarding the release of offense reports to defense attorneys.

Today, as I waited in line to pick up a redacted copy of an offense report for a domestic assault case, I chatted with a colleague about the new policy and we both had a question to which no one has yet been able to provide a satisfactory, or for that matter, logical answer.

What is the purpose in redacting information from the offense reports?

In order to obtain a redacted offense report we are required to sign a confidentiality agreement in which we agree not to give a copy of the report to our client. However, we are permitted to review the unredacted copy of the offense report in the state's file and take notes. As these notes are attorney work product we can share them freely with our clients -- including the names and contact information for all witnesses.

Since we sign a confidentiality agreement, why redact any information from the reports? If the reports are going to be redacted, why require the attorney to sign a confidentiality agreement? Since we can take notes from the unredacted offense report and discuss that information with our clients, why bother with either requiring a confidentiality agreement or redacting the reports?

If anyone can figure out the logic in this policy, please leave your comments below.

A poker lesson from Texas Dolly

Doyle Brunson is one of the most legendary poker players around. Texas Dolly won back-to-back World Series of Poker Main Events holding a 10-2 in the hole. He's also put together two excellent poker primers: Super/System and Super System 2.

Brunson is a firm believer in selective aggression. By choosing your spots and being relentless when you enter a pot, you can put an almost unbearable amount of pressure on your opponent.

"Like me, all the top players know you have to be extremely aggressive to be a consistent winner. You have to bet, bet, bet, all the time. If I find somebody I can keep betting at and he keeps saying 'Take it, Doyle,' 'Take it, Doyle,' well, I'm going to keep pounding on him. I'm not going to let up. And that poor guy never will win a pot from me. He'll have to have the nuts (best possible hand) or the nerve to call me." --Doyle Brunson, Super System 2

The same principle can be applied in the courtroom. There are some cases in which the facts are pretty clear and the object is to obtain the best possible deal for your client. At the table you'd be looking to dump these hands as quickly as possible.

There are some cases that are monsters. It might be a near-perfect video in a DWI case (or a client who refuses everything), a bad charging instrument, the perfect alibi witness or other evidence that exonerates a client. Just think pocket aces or pocket kings at the table. You play 'em hard and you play 'em fast.

Then there are the marginal cases. These are the cases in which a break here or there, one way or the other, makes the difference between a winner and a loser. It's like looking down at suited connectors or a suited ace or a small pair in the hole. You want to see that flop: if you hit your hand, you pump it, and if you miss your hand, you dump it.

"There's not a man alive that can keep leaning on me. I refuse to let somebody keep taking my money, and all the other truly top players are the same way. An aggressive player might do it for a while. But at the first opportunity I get, I'm going to take a stand and put all my money in the pot.

"It's like that little boy who keeps sticking his head up and keeps getting slapped all the time. Well, sooner or later he's not going to stick his head up anymore. So if a guy keeps going on and on and keeps pounding on me, then me and him are fixing to play a pot." -- Doyle Brunson, Super System 2

When you play fast and hard with your monster cases you pick up a lot of dismissals and reductions and it gives you the ability to make a stand with a marginal case. And if you keep pounding hard enough, when you stand up and go "all in" by announcing "ready," you might just see your opponent blink.

What we can learn from Bernie Madoff

I saw an interesting post on the Crime & Federalism blog today (thanks to Rita Handrich, Ph.D. - you can find more tidbits from Ms. Handrich on Twitter by following @TheJuryExpert), about Bernie Madoff and the tools of influence he used in his (alleged) Ponzi scheme.

According to the article, there are six main principles of persuasion:

1. Reciprocation,
   
2. Commitment and consistency,
   
3. Social proof,
   
4. Authority,
   
5. Liking, and
   
6. Scarcity.
   

The authors pointed out that Mr. Madoff took advantage of five of these principles when running his scheme (reciprocation was the only one he didn't use).

Mr. Madoff asked his victims, er, clients, to start off small and increase their investment if they liked what they saw (commitment and consistency). Only "smart" or "successful" people were allowed to "invest" (social proof). Mr. Madoff was the former head of NASDAQ and ran his own investment firm (authority). Most of Mr. Madoff's victims were Jewish (liking). Finally, Mr. Madoff forced victims to prove that they were worthy of "investing" in his scheme (scarcity).

By manipulating people with these principles, Mr. Madoff was able to convince them to part with their money. Of course good ol' greed played a large role in people's willingness to part with their money.

These same principles can be used to persuade a jury to side with our clients.

Reciprocation is the act of responding to a positive action with another positive action, or vice versa. If you want the jurors to open up to you and your client, you must first open up to the jurors. If you want the jurors to respect you and your client, you must first show respect to the jurors.

Commitment and consistency means when you make a promise to the jury that you deliver on that promise. It means letting the jurors "sample" a little bit of your argument early on in hopes that they will be willing to follow it later on.

For social proof, you must persuade the jurors that it could be them, or their son or daughter, friend or neighbor, sitting alongside you at the defense table. Most folks in that courtroom will assume that your client did something or else he wouldn't be sitting next to you.

You must present yourself to the jury as an authority on the issue. In other words, be prepared. Do your homework and be confident.

It's not a universal maxim but, if a jury is going to acquit your client, they need to like your client. Those jurors need to have a reason to want to find your client not guilty. Be sure to give them a reason.

Finally, in trial there is a scarcity of available information. The jurors will not hear all of the evidence, they will hear all of the admissible evidence. They will be left to fill in the blanks. Give the jurors the information they need to fill in those blanks and acquit your client or point out the lack of information needed to convict your client.

Is being horny a medical disability?

For the second time in less than a year, the Texas Department of Public Safety is looking for a new director after interim director Col. Stanley Clark lost both the "interim" and "director" tags for inappropriately touching women and blowing kisses.

“This is an elite law enforcement agency. We expect all our employees to demonstrate the highest degree of professionalism. The director must set the example for all employees in their workplace communications." -- Allan Polunsky, chairman of the Texas Public Safety Commission

Col. Clark took over the reins at the DPS in September 2008 after when Col. Tommy Davis retired after a fire caused severe damage to the governor's mansion -- which is under the eagle-eyed watch of the DPS.

Col. Clark will leave the department on May 31, 2009, though he has already been relieved of duty.

This is the same elite law enforcement agency that is in charge of the alcohol breath testing program and yet not only can they not police their own technical supervisors, they allowed someone to set fire to the governor's mansion right under their noses and they just canned a director who didn't have enough sense to act like a grown man around female employees.

How much confidence do you now have in that little black box?

Are you sure it wasn't Deputy Fife?

Here's a great idea. If your neighbor has, say, a basketball hoop in her driveway and you're sick and tired of hearing that damn ball bouncing on the cement at all hours of the day, place an ad on Craigslist and see if someone will take it off your neighbor's hands. 

That's exactly what Officer Chad Lee Hickey of the Arlington (Texas) Police Department did. And now Tarrant County prosecutors are trying to decide what, if any, crime Hickey committed when he placed the "ad."

"The reporting officer originally wrote the offense for forgery," said Sgt. Stan Davis of the Mansfield Police Department. "We don't really know what the offense is yet. There are several different offenses that might fit. That's why the district attorney is reviewing it, to find out if there is a criminal offense and, if so, to find out which offense fits the best."Regardless of what law enforcement officials eventually decide, Huwitt believes she has been victimized and says Hickey should at least lose his job.

The case is a first for veteran Tarrant County prosecutor Dixie Bersano.

"I'm having to look up a lot of the law," she said, "to determine one, if the law was broken, and what that law is."

Apparently Officer Hickey thought the basketball goal was "junking up" the neighborhood and took it upon himself to get rid of it. 

Association president Daryle Perez declined to comment, saying the incident was an issue between neighbors, not a board matter. He did confirm that Hickey and his wife recently resigned from the association's Declarations & Bylaws Committee.

According to a copy of the resignation letter provided by Sherry Huwitt, Hickey apologized "for any and all upset feelings. Due to the items needing to be removed since they were not properly taken care of, I thought of a solution that was wrong to a valid issue. I regret my decision and wish I could take it back."

Huwitt, 46, said she does not have any more "junk" in her yard than anyone else and is not aware of any other Remington Ranch resident being the victim of such an ad.

"To me, it's racial," said Huwitt, who is African-American. Hickey is white. "You can look at it any other way, but that's the way I look at it."

The honey hole

If you believe that the Houston Police Department issues speeding tickets in order to make the roads in the Bayou City safer, you're in for a surprise. KHOU-TV conducted an investigation of 500,000 speeding tickets issued by HPD as well as 50,000 accidents related to speeding between 2006 and 2008, and came to a different conclusion.

In fiscal year 2008, local police wrote $55 million worth of speeding tickets, including delinquent fees.

While public officials claim it’s all about public safety and not the money, the 11 News Defenders discovered police often return to the same “honey holes” as one veteran Houston Police Officer described it. That is, writing tickets in places where it’s easy to write them, rather than targeting unsafe roadways with a history of speeding-related accidents.

11 News analyzed more than 500,000 speeding tickets and more than 50,000 speeding-related crashes from 2006 through 2008. Of the top 10 ticket-writing locations on Houston streets, four were of the “honey hole” variety. These included setting up at the bottom of hills, bridges and overpasses, where even well-intended drivers can let their car’s momentum get them in trouble.

For anyone who's ever practiced, or spent a lot of time, in the municipal courthouse, it's readily apparent what's really going on (See "The tail wagging the dog"). The city is on a money grab, pure and simple. There's a reason why after Hurricane Ike, while the municipal courts were closed, the courthouse was open for people wanting to come in and pay their tickets.

Judge rules Charles Hood's appeal may go forward

The long-twisted saga of Charles Hood continues on in North Texas. Yesterday State District Judge Greg Brewer ruled that Hood's claim of judicial bias in his trial may be ruled on its merits. For those of y'all not familiar with the tawdry soap opera that was the Collin County Courthouse you can read my previous posts here.

Prosecutors tried to argue that the affair between then-State District Judge Verla Sue Holland and Collin County D.A. Tom O'Connell was common knowledge around the courthouse and that Hood's attorneys had to have known who was keeping whose pillow warm.

Judge Brewer disagreed:

“Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship,” Brewer said, adding that O’Connell misled Hood’s attorneys and Holland resisted their “investigative efforts.”

Brewer also said state attorneys could not argue that time deadlines for appeals were violated in Hood’s case because their hands were “unclean.”

“It is the appearance of partiality that is damaging to the public’s confidence in the integrity of the judicial process,” he said.

The Court of Appeals will now take up the matter.

Isn't it ironic, don't you think?

There are some things you just can't make up. In Houston today, a fire broke out in the HPD Crime Lab. Speculation is the "product" that caught fire was exculpatory evidence.

Firefighters rushed to Houston police headquarters downtown today to extinguish what turned out to be a small fire on the 26th floor, Houston Fire Chief Phil Boriskie said.

No injuries were reported. Some sort of "product" caught fire around 1:30 p.m., said Houston Fire Department Assistant Chief K.J. Alexander. It was quickly extinguished.

Workers were evacuated from the 24th, 25th and 26th floors. At least a dozen fire vehicles responded to the high-rise call at the intersection of Travis and Polk, and HFD hazardous material crews remained on site to figure out how to clean up.

The HPD crime lab is on the 26th floor. It wasn't immediately clear how much, if any, damage was done there.

Minnesota court affirms access to computer source code

The Minnesota State Supreme Court ruled yesterday (read the opinion here) that a person accused of driving while intoxicated is entitled to the breath test machine's source code if it can be proven that the source code could aid their defense.

Under Minn. R. Crim. P. 9.01, subd. 2(3), it was an abuse of discretion for a district court to order discovery of the source code of the Intoxilyzer 5000EN when a defendant did not submit any evidence on how the source code may relate to his guilt or innocence; however, it was not an abuse of discretion for a court to order discovery of the source code to a defendant who submitted evidence that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and would relate to his guilt or innocence.

Appellant Brunner submitted a memorandum and nine exhibits to support his request for the source code. The memorandum gave various definitions of “source code.” The first exhibit was the written testimony of David Wagner, a computer science professor at the University of California in Berkeley, which explained the source code in voting machines, the source code‟s importance in finding defects and problems in those machines, and the issues surrounding the source code‟s disclosure. The next exhibits detailed Brunner‟s attempts to obtain the source code, both from the State and CMI. The last exhibit was a copy of a report prepared on behalf of the defendants in New Jersey litigation about the reliability of New Jersey‟s breath-test machine. See State v. Chun, 943 A.2d 114 (N.J. 2008). The report analyzed the New Jersey machine‟s computer source code and uncovered a variety of defects that could impact the test result. Based on Brunner‟s evidence, the district court found that the integrity of the source code is essential to the scientific reliability of the Intoxilyzer 5000EN test result. Further, the jury instructions asked the jurors to assess the reliability of the testing method, whichcould not be done without Brunner having access to the software controlling that testing process.

Minnesota uses the Intoxilyzer 5000EN which is made by CMI (the same machine used in Texas).

I think I'd rather be elsewhere at the moment

So you don't feel like jury duty? Mr. Erik Slye of Gallatin County, Montana didn't and here's what he wrote in his request to be excused:

Apparently you morons didn't understand me the first time. I CANNOT take time off from work. I'm not putting my familys (sic) wellbeing at stake to participate in this crap. I don't believe in our "justice" system and I don't want to have a goddam thing to do with it. Jury duty is a complete waste of time. I would rather count the wrinkles on my dogs (sic) balls than sit on a jury. Get it through your thick skulls. Leave me the f--k alone.

No word on whether the judge excused him from service.

The law of unintended consequences

Is it possible that the latest pandemic causing otherwise sane people to spin off the deep end in panic is the unintended consequence of the flu vaccine?

The idea is not as counter-intuitive as it sounds. Just as every other organisim out there, the purpose of a virus is to replicate and ensure that the strain lives on. With the widespread availability of the flu vaccine, some strains of the flu are unable to go from host to host and replicate themselves. Those strains that cannot replicate themselves are gradually eliminated from the virus population.

Viruses mutate just like any other organism and, in the case of the flu, the mutant strains are not stopped in their tracks by the flu vaccine. Thus, we are left with resistant strains of the flu floating around. These resistant strains tend to be stronger and more virulent that the virus knocked out by the vaccine.

So, the introduction of the flu vaccine, meant to shield as many people from the flu, has, instead, contributed to the development of stronger strains of the flu that are resistant to the current vaccine.

Economists refer to this phenomenon as the law of unintended consequences and it is (virtually) a universal truth: any attempt by a simple system to regulate a complex system generally leads to unexpected (generally negative) outcomes. The war on drugs brought us more violent street crime, overcrowded jails and a generation of black males whose contact with the criminal justice system is scandalous; and MADD's rampage has made criminals out of ordinary folks who were in the wrong place at the wrong time. 

See also:

• Twitter's secret: the law of unintended consequences
  
• Marginal revolution: the law of unintended consequences
  
• The law of unintended consequences: 20th century and beyond
  
• Basketball prospect leaving high school to play in Europe (New York Times 4/22/09)
  

Statistical reasoning

I came across an interesting article in Cognitive Daily this afternoon about reasoning with statistics. The article described three studies conducted to determine how well people understood statistics and observable data.

In the first study people were asked which hospital would be more likely to have a day in which 60% of the babies born were boys: a hospital with 15 births a day or a hospital with 45 births a day. Most of the respondents said the percentages should be the same; very few respondents understood that the smaller a test sample, the more likely there are to be large variations day to day.

In another study respondents were asked to imagine they were on a remote South Pacific island and that they discovered a new species of bird as well as an obese native. The respondents were then asked to estimate the portion of the new bird species that were blue and the portion of the native population that was obese. Most respondents believed that the blue bird was very representative of the new species, regardless of whether they saw one blue bird, three blue birds or twenty of them. They also believed that one obese native was not necessarily representative of all natives, but, the more obese natives they observed, the higher percentage they attached to them.

The final study looked at a high school senior trying to decide where to go to college: Ivy College or Liberal College. Our senior had friends at both schools. His friends at Ivy had many complaints about the college, the atmosphere, the social scene, etc. His friends at Liberal were very content. He then went on a visit of both schools: he loved Ivy but was not so hot about Liberal afterwards.

A vast majority (74%) of the respondents said he should go to Ivy based on his friends' comments and his visit.

Researchers then ran a second test using the same scenario: only this time our senior made a list of classes, sites and activities from both colleges and picked several at random before making his visit. Once this detail was added the number of respondents picking Ivy dropped to 56%. The researchers concluded that when the respondents were told about the list they decided to look at the problem from more of a statistical viewpoint -- his friends at the schools had a better sampling of the environment than he did on his one visit.

The lesson to be learned is that the sample size will affect the reliability of the statistics generated from it. So, when confronted with statistical evidence, from DNA samples to field sobriety tests to breath-alcohol tests, focus on the sample size. The larger the sample size, the more reliable the numbers generated.

On field sobriety testing, point out the relative small sample sizes used in the "validation studies." Look at everything from the location of the tests, the ages and sexes of the participants, the level of intoxication of participants in lab testing, the time of day and the number of officers who took part in the study.  

As far as the breath test result -- just how accurate do you really think two breath samples taken two minutes apart are? 

Some enlightened thinking on the swine flu pandemic

As the World Health Organization prepares to issue a warning about a possible global outbreak of swine flu, a Houston city councilwoman, upset that the child who died from complications from swine flu was admitted into a Houston hospital, provided us with this gem of wisdom:

"The child was not a United States citizen," said Councilwoman Toni Lawrence, who hinted that the city should be involved in deciding whether a patient with an infectious disease would be cleared for transport here.

"I'm very concerned about this disease, I'm very concerned someone died from it and I'm very concerned council wasn't told about this. We need to be aware of this and continue to do things for Houston and not for anybody else."

Do you really want people like this making health care decisions and dictating how a car company must operate?

More from Survivorman

While watching Survivorman the other day I caught a few more words of wisdom from Les Stroud: sometimes the best thing you can do when lost is to slow down and stop. Sometimes that means continuing the path you were taking, sometimes that means charting a new path and sometimes it means going backwards.

The same analogy can be applied to trial preparation. You may have developed a wonderful theme for your case along with an insightful story to tell -- but sometimes the facts take you in a different direction and the best thing to do is to stop and start anew.

Officers administer field sobriety tests incorrectly 97% of the time

Recently Lance Platt, a certified NHTSA SFST practitioner, instructor and trainer, published a paper in the DWI Journal: Law & Science that examined the differences between the manner in which officer are trained to perform field sobriety tests and the manner in which they actually administer them.

For the Horizontal Gaze Nystagmus test, Mr. Platt recognized 16 elements that make up the test. After examining 360 recorded evaluations, he found only 24 were performed correctly per the NHTSA Manual. Those 24 represent only 7% of the tests administered, meaning that officers administered the test incorrectly 93% of the time.

HGN Test Elements

• Place feet together
  
• Place hands to your sides
  
• Maintain the position
  
• Look at the stimulus
  
• Follow the stimulus with your eyes only
  
• Do not move your head
  
• Continue to follow the stimulus until the test is complete
  
• Do you understand?
  
• Officer positions stimulus correctly
  
• Officer checks for equal tracking
  
• Officer checks for equal pupil size
  
• Lack of smoot pursuit (timing element)
  
• Distinct & sustained nystagmus at maximum deviation (timing element)
  
• Onset of nystagmus prior to 45 degrees (timing element)
  
• Vertical gaze nystagmus
  
• Possible optokinetic (environmental issue)
  

For the Walk and Turn test, Mr. Platt recognized 21 elements that make up the test. Of the 360 recorded evaluations, he found that only 67 were administered correctly per NHTSA. In other words, officers administered the test incorrectly 81% of the time.

Walk and Turn Elements

• Imagine a line
  
• Place your left foot on the line
  
• Place your right foot in front of your left
  
• Touch the heel of your right foot to the toe of your left
  
• Keep you arms to your sides
  
• Remain in this position and do not start walking until told
  
• Do you understand?
  
• Take nine heel-to-toe steps up the line
  
• Turn by leaving the lead foot on the line and taking a series of small steps
  
• Take nine heel-to-toe steps back down the line
  
• Officer demonstrates walking phse
  
• Officer demonstrates turn
  
• Look at your feet
  
• Count your steps out loud
  
• Keep arms at your side while walking
  
• Do not stop walking
  
• Do you understand?
  
• Begin walking and count your first step forward from the heel-to-toe position as step number one
  
• Poor testing surface
  
• Issues with shoes
  
• Weather
  

For the One Leg Stand test, Mr. Platt recognized 16 elements that make up the test. Of the 360 recorded evaluations, he found that officers administered the test correctly only 50% of the time.

One Leg Stand Elements

• Place feet together side by side
  
• Keep your arms to your sides
  
• Remain in this position and do not start until told
  
• Do you understand?
  
• Keep both legs straight
  
• Keep your arms by your sides
  
• Lift the leg of your choice
  
• Approximately 6 inches off the ground
  
• Point the toe of the elevated foot parallel to the ground
  
• Look down at the raised foot
  
• Count out loud by 1000's until told to stop
  
• Do you understand?
  
• Officer demonstrates balance and counting
  
• Poor testing surface
  
• Issues with shoes
  
• Weather

When he evaluated in how many of the 360 test sequences all three tests were administered correctly, he found that only occurred ten (10) times, meaning that officers administered at least one test wrong 97% of the time.

Unfortunately in Texas judges routinely hold that the incorrect administration of these tests goes to the weight, not the admissibility, of the evidence. This despite the warning in the NHTSA Manual that "if any of the standardized field sobriety test elements is changed, the validity is compromised."

Open for business

These are the conditions that the people "running" the Harris County Criminal (In)justice Center thought people should brave in order to be in the pews for a 9:00 a.m. docket call.  This, despite local schools closing for the day due to the weather.

Springtime in Houston

I woke up this morning to the sounds of a thunderstorm that had been parked over the city for some 12 hours. Realizing I wasn't going out for a run I rolled over and slept for a few minutes more. Knowing that I had to be in court this morning and that my wife would be leaving for work by 7:00 am, I went downstairs, grabbed the paper and made my breakfast. I needed to eat pretty quickly so I could shower and get dressed before making breakfast for the girls.

Imagine my dismay when midway through my meal I heard my youngest calling "daddy" and coming down the stairs. I went and brought her to the kitchen and started making breakfast for her and her older sister. After serving her some Cream of Wheat, sliced strawberries and oranges and green beans (her favorite), I went back upstairs to see if my wife could watch her while she ate.

My wife had gone back to bed. As the schools were closed she wasn't teaching today - which was a good thing since her parents weren't coming over to watch the kids due to the flooding. After my wife came downstairs I headed up to get ready for work - when my phone rang.

A client on today's docket called to tell me he couldn't make it out of his neighborhood. Luckily his case was set for dismissal, if he had proof of insurance, so I knew I had to contact the court coordinator before docket call to reset the case. Then another client called with the same story. His case was also set for dismissal - and I had the proof of payment I needed - so I told him to stay put. My other setting was for a petition for nondisclosure that had been reset because the judge wanted additional items.

Of all my clients, Mr. Nondisclosure was the only one to show up in court -- but, of course, the judge called in sick. Arghhh!

Now, instead of a crowded morning rush and then an appointment with a real estate broker, I sit here in the attorney ready room at the Harris County Criminal (In)justice Center killing time before my appointment.

Ah, springtime in Houston.

Flying by the seat of your pants

I saw a fascinating show on the Discovery Channel last night about the US Airways jet that crash-landed in the Hudson River. There was audio from the plane to the tower and from the tower to rescue vehicles as well as actual footage of the plane going down.

Flight 1549, flying to Charlotte, NC out of La Guardia, took off around 3:30 p.m. Three minutes later Captain Chesley Sullenberger reported that a double bird strike took out both engines. Knowing he couldn't make it back to La Guardia and not certain he could make it to an alternate airport in New Jersey, Captain Sullenberger landed the plane in the icy Hudson River, missing the George Washington Bridge by less than 1,000 feet.

Immediately after the bird strike, the co-pilot, Jeff Skiles, began the three-page sequence to refire the engines (that's right, three pages). All the while the captain made the necessary adjustments on the fly to ensure that the plane cleared the bridge and hit the water at the right angle and speed to prevent it from breaking apart.

According to the show, he had to hit the river at an 11 degree angle at 150 mph to avert disaster. That meant putting the nose of the plane down in order to maintain speed but pulling up in time to avoid the engines hitting the river before the rear of the plane.

What Captain Sullenberger did was simply astounding. He had a gameplan for an uneventful flight to Charlotte, but, when confronted with occurences he had no idea were coming, he was able to maintain his calm and plot a new strategy -- and then change that strategy the instant it appeared it would not work.

It's easy to script out a cross-examination or voir dire or closing argument. It's easy to keep your head glued to your notes when questioning a witness. It's all too easy to be rigid in the preparation of a case. To be successful you must be flexible, you must be willing to change directions in an instant and you must be able to adjust your case strategy on the fly. Just like a pilot never knows when disaster may befall him, you never really know what a witness will say until he gets up on that stand.

Same song, different verse

Stop me if this sounds all-to familiar... a man, after spending decades in prison, based on forensic evidence examined and evaluated by the Houston Police Department Crime Lab, is eliminated as a suspect by independent forensic testing.

"This is yet another reason why we need an independent crime lab. How many more reasons will it take?" -- Pat Lykos, Harris County District Attorney

Gary Alvin Richard was convicted of rape and robbery in 1987 based, in large part, on testimony from James Bolding, a supervisor in the HPD Crime Lab. Ironically enough, an analyst named Christy Kim performed the lab tests. Ms. Kim was also the analyst who tested samples in the Josiah Sutton case (Mr. Sutton has since been exonerated). It turns out that the crime lab withheld exculpatory evidence that could have led to Mr. Richard's acquittal.

The victim identified Mr. Richard some seven months after the attack took place. Lab tests apparently came back with differing conclusions but only test results that confirmed Mr. Richard as the attacker were reported.

Mr. Richard's attorney, Bob Wickoff, is leading an investigation into 160 cases an independent investigator flagged as problematic.

This case, as well as other exonerations, points out what can go wrong when an investigation is tailored to prove a certain person committed an act. Of course it's always more efficient to start with your conclusion and cherry-pick the facts that lead you to it. However, it's much more intellectually honest to test the evidence and follow the trail to where it leads you.

More on the truth (or lack thereof)

The court reporter in Harris County Criminal Court at Law No. 1 was indicted on charges on tampering with a government record. He is expected to surrender to authorities.  The county criminal courts handle Class A and B misdemeanor offenses for which the punishment is no more than one year in the county jail and a fine not to exceed $4,000.

The reporter is represented by two former Harris County (Criminal) District Court judges in a wonderful bit of irony. Apparently they have undergone a conversion and now believe that a citizen brought before the court is innocent unless proven guilty.

Seems that not that long ago...

Ye shall know the truth and yada yada yada

President Obama has rejected the idea of creating a truth commission to look into interrogation techniques used during the Bush administration's war on terror. In a press briefing on Wednesday, White House Press Secretary Robert Gibbs said that President Obama was not interested in prosecuting officers who tortured detainees if they worked "within the four corners" of the any legal advice they were given.

Q    Two unrelated things.  First, what's the latest thinking here on whether the White House would support some sort of independent commission to look at the interrogations during the Bush era?  And then I want to follow up with a credit card question, if I could.

MR. GIBBS:  Sure.  Well, I don't -- I don't know that I have a lot to add on the first question other than what the President discussed earlier in the week and what I talked about on the plane yesterday. 

And obviously there's been news reports of a discussion about such a commission here that the President decided I think the last few days might well be evidence of why something like this would likely just become a political back and forth.

Q    So is that an indication that you don't want to see an independent commission?  I'm trying to understand.

MR. GIBBS:  By dint, an independent commission would probably not be something that I would weigh in on if Congress were to create one of those.  I think that -- from the larger perspective, the President believes, as both of us have said, that the release of the memos are not a time for a retribution but to reflect on what happens and that we're all best suited looking forward.

...

Q    Robert, does the President believe someone ought to be punished for allowing waterboarding?  He changed the policy, but does he believe somebody ought to be punished?

MR. GIBBS:  Well, I think that determination is going to be left up to, as I've said for any number of days looking backward on this now, that that's going to be made by a legal official.

Q    And that legal official is the Attorney General?

MR. GIBBS:  In our Constitution it is.

Q    And what about this idea of the Attorney General appointing a special prosecutor?

MR. GIBBS:  Well, I addressed this --

Q    Is that his -- is that the Attorney General's decision or is that ultimately the President's decision?

MR. GIBBS:  I'd have to look up, honestly, the legal statute to determine that.  I don't -- I don't think the -- I don't believe that there's -- I think the Justice Department is fully capable of weighing the law.

Q    You don't think a special prosecutor is necessary?

MR. GIBBS:  I don't -- I don't think anybody has presented a compelling case why the Justice Department couldn't do this.

I think it's much more likely that the president doesn't want to push an investigation as a professional courtesy to his predecessor. He either doesn't want to close the door on using a variation of such tactics later on or he doesn't want his people to be subject to investigation and possible prosecution by the next administration.

The U.S. once again plays by its own rules and deigns not to investigate atrocities committed by American intelligence officers that would bring a swift condemnation if committed by another nation. The American people deserve to know the truth about what was done in their name.

The truth of the matter

"There are two sides to every story... and then there's the truth."

-- Patti Stanger, The Millionaire Matchmaker

It's an essential truth in our line of work that no one ever really knows the truth. Thanks to rules of evidence and procedure, our Constitutional protections and the reality that memories fade over time, that jury sitting in the box will never hear the entire truth about what happened on "the night in question."

The jury will hear the prosecutor's story and then the citizen accused's story. Then they will be asked to decide among themselves what they think is the truth.

I had occasion one morning to sit down and talk to Wharton County Justice of the Peace (Precinct 4) Dennis Korenek and he told me that most folks just want to come into his court and tell their side of the story. I believe that. I also believe that can be a very dangerous attitude to have when you're up against The State of Texas.

Wearing two hats

I must preface my remarks by saying that I know plenty of good attorneys that also write bonds - it's common practice for attorneys who handle a high volume of traffic tickets.

My question is whether there is an inherent conflict in both writing the bond and representing the citizen accused?

As a criminal defense attorney, my job is to keep my clients out of jail as long as possible. That means stretching out a case if necessary. However, the bondsman's interest is ensuring that client shows up in court for every scheduled appearance - and, the longer a case draws out, the more risk the client won't appear or will end up in more trouble.

If you're the attorney and the potential bondsman, do you argue for a personal bond?

What happens if a client doesn't appear? Do you ask the judge to give your client one more chance or do you cut your losses and surrender the bond?

And the true dilemma - if your client skips, do you do nothing or do you track him down and hand him over to the police?

Do y'all think there's an ethical dilemma at play?

Proposed legislation would protect teachers' criminal history information

A bill before the Texas House of Representatives would prevent a public school employee's criminal record from being made public.  Senate Bill 9, enacted in 2007, required school districts to release the criminal histories of their employees if that information were combined in a document with non-confidential information.

State Rep. Jessica Farrar (D.-Austin) introduced H.B. 4302 in response to allegations that false information was being released about public school employees.

According to the bill analysis:

These criminal history background checks often yield results that are inaccurate or incomplete. The records may include investigations or arrests based on false or erroneous information and even charges that were dismissed for lack of merit. Some records reflect activities from decades ago that are entirely irrelevant to an employee's fitness for the employee's current work. 

If the bill passes, school districts would not be required to release any confidential criminal history information on district employees to any entity to whom the Texas Department of Public Safety or Federal Bureau of Investigation was not required to release the information.

Alejandra Martin (Association of School Personnel Administrators), Ted Melina (Texas AFT) and Martha Owen (Texas AFT) testified in favor of the bill. No witnesses testified against the proposal.

Several newspapers and broadcasters have come out against Rep. Farrar's proposed legislation on the grounds that the public has a right to know. Now, while I generally fall into that camp, in this instance there are some good reasons for this information to be restricted. 

A citizen accused of a crime can receive deferred adjudication probation which would result in a dismissal of the charge upon completion of the probation. In addition, the citizen accused could then seek an order of nondisclosure which would prevent law enforcement agencies from releasing any information about the arrest, charge or disposition to anyone outside law enforcement - with a few exceptions.

One of those exceptions is that the criminal background information is made available to the Texas State Board of Educator Certification and to local school districts. There is a sound public policy argument in favor of that exception. However, without the protections of H.B. 4302, that same information could be released to anyone else upon request -- which would defeat the entire purpose of deferred adjudication.

Where's John Galt?

The Houston City Council decided to award tax breaks to a developer to build a new downtown hotel near Discovery Green (even though Mayor White is asking the heads of city departments to cut their budgets). Now, if it were profitable for a private developer to build and operate a hotel in that location there would be no need for government handouts. If the developer will only go forward if he's getting a handout from the city, then the city is subsidizing an unprofitable enterprise.

As an aside, the city still hasn't found a buyer for the downtown Hilton that the city bankrolled.

Where's the logic?