Training the vampire's apprentice

"...the importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great..." -- Schmerber v. California, 384 US 757, 770 (1996).

While doing some research for a recent post I came across some information on the website for the Texas Municipal Courts Education Center dealing with blood warrants in DWI cases. It seems that the judges had a pow-wow last July and blood warrants were on the agenda.

Included among the written materials was a question-and-answer paper with some delectable little morsels regarding the signing of blood warrants by municipal court judges.

How do you obtain a blood search warrant? 

An affiant/officer must present a qualified magistrate a written affidavit alleging facts amounting to probable cause that a specific person committed a specific crime and alleging why the blood sought will provide evidence regarding that crime 

A magistrate has no legal reason to deny this request if the above criteria are met.

It's scary that municipal court judges - whose job it is to raise revenue for the city from motorists - are authorized to sign blood warrants in DWI cases. But, starting with the last point in the answer to the question, while there may be no legal reason to deny the request - there is also no legal reason requiring the magistrate to sign the warrant. The affidavit may very well contain allegations that a specific crime occurred and that a specific person is believed to have committed the crime -- but it does not follow that the warrant must be issued based upon the allegations. The magistrate has the right to question the affiant to determine his or her truthfulness and to help decide whether or not to grant the warrant.

Furthermore, none of the search warrant applications I've seen in DWI cases have actually alleged why the blood is evidence of the crime. As far as the law is concerned, it's not a crime to have a BAC of .08 or higher at the time of the test. It's only a crime if it can be proven that the driver was over the limit at the time of driving.

Does a magistrate have to sign a blood search warrant if it is legally sufficient? 

No. A magistrate never has to sign anything but there are potential consequences for declining to perform magisterial duties. The C.C.P. says "It is the duty of every magistrate to preserve the peace within his jurisdiction by all lawful means; to issue all process intended to aid in preventing and suppressing crime." Whether issuance of a blood search warrant helps to preserve the peace seems debatable. However, general public knowledge that a blood draw may be required if a person is arrested for DWI seems very likely to aid in preventing and suppressing crime by its deterrent effect. 

So, while a magistrate does not have to sign a legally sufficient blood search warrant, it is arguably a dereliction of duty and a possible violation of the Code of Judicial Conduct. Clearly, a magistrate does NOT have to sign a blood search warrant (or any search warrant) he/she believes is legally insufficient.

As I was saying, a magistrate is not compelled to sign a blood warrant. One thing is certain, however, it is not the job of a judge to be the waterboy for the police. A judge is not a crime fighter. A judge is supposed to be a neutral arbiter in a dispute between two or more parties. I find it interesting that TMCEC is making a veiled threat to municipal judges that they might be violating the Code of Judicial Conduct if they don't go along with the vampires.

It is even more ironic that the TMCEC makes this threat when Judge Killer of the Texas Court of Criminal Appeals walks away with a smirk on her face after violating court policy and procedure in the Michael Richard execution. The implication seems to be - if you act in good conscience you may be in violation of judicial canons but if you prevent a condemned man from filing a request for a stay you're okay.

Can a blood search warrant be faxed to a magistrate so the magistrate can sign a blood search warrant? 

Various counties are already using faxed blood search warrants. 

So, the answer is "Yes" you can use faxed blood search warrants. It is being done. C.C.P. Section 18.01 requires the "facts" of a "sworn affidavit" be presented to a magistrate who signs the warrant. Nothing in the code specifically requires the officer/affiant to appear personally before the magistrate. C.C.P. Section 2.26 declares electronic documents a written document for all purposes. 

If law enforcement is depending on the magistrate to sign the affidavit, arguably, the officer may need to be "before" the magistrate. Tex.Govt.Code Section 312.011 defines an affidavit as a written statement of fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths and officially certified by an officer under his seal of office. Historically, that would mean "in front of" the magistrate, though that may not be true in this newer, high tech environment in which we operate.

Well, of course, if someone else is doing it, it must be perfectly legal. Right? Interesting that the same government that fights against the expansion of constitutional protections for the citizenry due to "changing times" is more than willing to expand the power of the police state based upon the same reasoning.

One very interesting tidbit I came across I found in the slide presentation that accompanied the lecture. According to TMCEC a

Suspect should not be threatened with a warrant to gain "consent."

I have yet to figure out how this statement gibes with the gibberish about how general knowledge of forced blood draws is a deterrent to DWI.

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

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

Click here for the audio presentation.

Accident rates decrease after red light cameras taken down

You'd never know it if you relied on the Houston Chronicle's website, but splashed on the front page of yesterday's paper was an article announcing that the removal of red light cameras has resulted in fewer traffic accidents at the 50 intersections where the cameras were mounted.

According to data released by HPD, the number of traffic accidents at those intersections has declined by 16% in the five months since voters rejected the cameras. The data compared the number of accidents in the five months prior to the removal of the cameras (June 15-Nov. 14, 2010) and the number of accidents between November 15, 2010 and April 16, 2011.

According to the Chronicle:

The drop in accidents surprised Houston police administrators who say a possible explanation is the unusually dry weather during recent months has made driving conditions safer. They also wonder if years of electronic monitoring have made Houstonians better, if not more cautious, drivers.

Maybe it never occurred to the police that accidents increased at the intersections due to the number of motorists slamming on their brakes as they approached yellow lights.

Assistant Chief Brian Lumpkin said he had assumed accidents at those intersections were increasing since HPD is still receiving raw data from the camera vendor indicating motorists were running lights with much greater frequency at many intersections. The HPD records show accidents decreased at 32 intersections, increased at 21 and stayed the same at 17.

Well, Mr. Lumpkin, the conclusion is quite obvious -- place officers near those intersections and stop motorists who run red lights. We all know the most popular pastime in Houston is seeing how many cars can get through an intersection when the light's yellow. We all know the number one rule of driving in Houston is you don't take off at the intersection when the light turns green - you wait for that one last car to go through the red light.

The other thing that Mr. Lumpkin's analysis doesn't take into account is the number of red light camera tickets that officers rejected upon review before issuing the civil citations. Estimates are that HPD monitors rejected almost 40% of the proposed violations.

On Nov. 14 soon after a referendum to shut down the system passed, the city stopped issuing violations but was ordered by the courts to keep the cameras and road sensors up. HPD took an immediate $10 million hit from the department's anticipated share of ticket revenue for the remainder of this fiscal year, as the city ended a lucrative system that issued nearly 800,000 tickets and collected almost $44 million in fines since going online in September 2006.

The red light camera scam was never about increasing safety on Houston's streets. It was always about increasing revenues without having to pay for officers to patrol the intersections. The latest data is pretty damning proof that the original premise behind the cameras was faulty.

Hanging on the telephone

It is far from unusual in these days of Gestapo-like tactics by the police against motorists accused of driving while intoxicated for an officer to fax an application for a warrant to draw blood without ever appearing before the judge.

On "No Refusal Weekends," many volunteer prosecutors judges will sit at home by a fax machine waiting for the "fill-in-the-blank" warrant applications to be faxed over, signed and faxed back without a care in the world. Interestingly enough, while a municipal court will not accept an appearance bond or appeal bond if it is faxed (because they have to be notarized), a judge may gladly accept a faxed affidavit in support of a search warrant -- if the purpose is to tie someone down and draw their blood.

In order to avoid the testy situation of lying before a notary or a judge in quest of a search warrant, police officers have taken to signing their affidavits within the presence of another police officer. Since no oath was administered, the officer requesting the search warrant did not commit perjury and the courts don't care.

That was, until the Tyler Court of Appeals handed down its opinion in Aylor v. State, No. 12-09-00460-CR (Tex.App.--Tyler, 2011). In Aylor, a police officer stopped a motorist and, believing he was driving while intoxicated, requested a blood sample. When Mr. Aylor declined the request, the officer called the station and told his sergeant what had happened. The sergeant then filled out an affidavit based on the arresting officer's statements and faxed it to a judge who administered an oath over the phone. That's right -- over the phone. Nevermind the fact that the judge could not ascertain with any certainty who was on the other end of the line. Forget that the judge had no way to know from the caller's appearance whether he was telling the truth of not. In other words, throw all logic out the window.

The trial court was not troubled by this. The appellate court, on the other hand, was a bit troubled by it.

The current state of Texas law then, as alluded to in the above quoted dicta by the court of criminal appeals in Smith, is that a physical, personal appearance is necessary, either before the magistrate, or before someone who is qualified to administer oaths. See Lowry, 297 S.W.2d at 850-51 (citing Sullivan, 83 S.W. at 422-23); Hughes, No. 07-10-00096-CR, 2011 WL 561497, at *6-7.  Therefore, we conclude that an affiant must be physically present in front of the magistrate or officer authorized to administer oaths when swearing to the facts in his affidavit to support a search warrant.  We further conclude that where the oath was taken solely over the telephone and not physically in front of any officer authorized to administer oaths, the presence requirement is not met.  In the instant case, the oath was administered by the magistrate to Sergeant Seyer by telephone.  The record does not show that Sergeant Seyer took the oath in front of some other officer authorized to administer oaths, and the affidavit is not notarized.  Moreover, the State did not argue at the trial court, and does not argue here, that the arrest or any evidence seized during the search was obtained by the officers acting in good faith reliance on the warrant.  See Swenson v. State, 2010 WL 924124, at *2-4.  Consequently, we cannot conclude from the record before us that the presence requirement was satisfied or that compliance with the presence requirement was excused.  Accordingly, we hold that the trial court erred in concluding that the warrant was valid and in overruling Appellant’s motion to suppress.

What's troubling about the Court's opinion, however, is the statement that the State never argued that the officers were acting "in good faith" when executing the search warrant. Was the Court saying that all would have been forgiven if the officer had testified that he was acting on the belief that the warrant was valid?

If that is the case, Aylor doesn't provide relief so much as a playbook for the police on how to obtain illegal search warrants and execute them by using the magic words good faith.

Driving while black remains a reality in Houston

New data released by the Houston Police Department shows that black motorists are more likely to be stopped by police than any other ethnic group in the city. While blacks make up 23% of the city's population, they made up 33% of all traffic stops in 2010. Latinos, who make up 44% of the city's population, made up 32% of all traffic stops. White motorists accounted for 30% of the stops.

According to the Houston Chronicle, "experts" discount driving while black as being the cause of the disparity.

Clete Snell, who chairs the criminal justice department at the University of Houston-Downtown, said many minority residents feel they have been singled out because of the number of stops in their neighborhoods. 

"Police tend to patrol more frequently in African-American neighborhoods, and in minority neighborhoods in general, and tend to make more stops in minority neighborhoods,“ Snell said.

Apparently Mr. Snell is not concerned that there are a disproportionate share of blacks in the criminal justice system and that the vast majority of defendants who cannot afford to post a bond tend to be black or Latino.

Surprisingly enough, Gary Blankinship, the head of the Houston Police Officer's Union, denies the existence of racial profiling and former HPD Chief, and current city councilmember, C.O. Bradford blames it on a few "bad apples."

Racial profiling, like police brutality, is not an individualized phenomenon. It is bred into the culture of police departments all across this country. Police brutality comes from a culture in which the questioning of "authority" is considered a sign of disrespect. Maybe that's how it works at the police station -- but that ain't reality on the street. But police culture doesn't account for such subtleties.

Racial profiling has always played a role in police work - going back to the days of Jim Crow when the police were used to enforce the laws of segregation. The primary role of the police was to keep whites and blacks separate, or, more accurately, to keep blacks on "their side" of town. That ethos still holds true today as large swaths of our cities and towns are segregated.

Until we examine the role that law enforcement has played in preserving inequality in this country, police brutality and racial profiling will continue to endure - no matter how much sensitivity and diversity training we require of the boys in blue.

Continuing down that slippery slope

On the morning of September 11, 2001, a total of 2,977 folks lost their lives in the terrorist attacks that felled the World Trade Center and damaged the Pentagon. The 19 men who carried out the attacks were killed in the course of the crimes.

Osama Bin Laden emerged as the primary suspect behind the hijackings. Evidence pointed toward the involvement of al-Qaeda. Bin Laden made admissions over the years that he was responsible for the attacks.

Under the law of parties, Bin Laden was as culpable as the men who actually hijacked the planes and crashed them into the buildings. He could have been charged with a myriad of crimes in several different jurisdictions.

The US Navy Seals who carried out their mission last week did not possess either an arrest or a search warrant. They broke into a dwelling displaying weaponry. They killed an unarmed man. (I say unarmed because the story surrounding what really happened changes from day-to-day and if there were some proof that Bin Laden was armed we would have seen photos or heard about it by now. The very fact the government keeps changing its account is enough to tell me that he was unarmed at the time of the shooting.)

The men who raided the compound intended to kill Bin Laden according to statements made by the US Attorney General Eric Holder:

‘The operation in which Osama bin Laden was killed was lawful,’ he said. ‘He was the head of Al Qaeda, an organization that had conducted the attacks of Sep 11. He admitted his involvement and he indicated that he would not be taken alive.'

‘The operation against bin Laden was justified as an act of national self defense,’ he said.
It was lawful to target an enemy commander in the field and the mission was conducted in the way that was consistent with US laws and values, Holder testified, adding that it was a ‘kill or capture mission.’

‘If he had attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that. And therefore his killing was appropriate,’ Holder said.

I'm not quite clear on how the killing of an unarmed man in another country by US citizens is "consistent with US laws and values." I understand that Mr. Holder is but a mouthpiece for the administration, but for an officer of the court to suggest that anything about this mission was consistent with our laws is disingenuous at best and outright hypocrisy at worst.

Jamison Koehler had an interesting post on Monday dealing with Americans overseas who seem to think that the Constitution protects them when they do something they're aren't supposed to do. It doesn't. Just like your parents' rules didn't protect you when you spent the night at a friend's house, our laws do you no good should you decide to smuggle dope into another country.

But where Mr. Koehler got off track was when he posited that Bin Laden wasn't entitled to any due process rights under the US Constitution at the time he was killed.

But I don’t agree with Kennedy when he uses this argument in connection with the extrajudicial killing of Osama Bin Ladin in potential violation of international law. While the U.S. Constitution does in fact apply to the actions of the American seals who raided Bin Ladin’s compound, and to the President who authorized that raid, it is a stretch to argue that Bin Ladin himself enjoyed any “due process” rights under the U.S. Constitution.

Bin Laden was wanted in the United States for crimes committed on American soil (or in American airspace). The raid was conducted by US military forces. We're not talking about some trigger-happy Pakistani soldier here, we're talking about a raid authorized by the President of the United States (and if I remember correctly, he took some oath in which he promised to abide by the Constitution).

The issue is not where the killing took place. Bin Laden was in American custody when he was killed. He was accused of a crime in the United States. He was entitled to his due process rights.

Limited government, Perry-style

I guess this is why I'm not a legislator in Austin. I just don't see the connections that these geniuses do. With school districts being forced to lay off teachers due to the budget crisis in Austin, a couple of folks seem to think they've found the answer to our problems.

State Rep. John Davis (R-Houston) says Texas charges luxury yacht buyers too much sales tax. That 6.25% is a real bitch, apparently, to the scads of Texans looking to buy multi-million dollar boats to play around in. The sales tax is the most regressive tax the state has yet to devise yet the yacht-buying set thinks it's too much to be asked to pay more than $18,000 in sales tax for a boat worth over a million dollars. Boo, freaking, hoo.

And the fair-haired one, Gov. Rick Perry has determined that an emergency exists and that the only way to fix it is to pass tort reform with a "loser pays" provision. State Rep. Brandon Creighton (R-Conroe) has proposed legislation that would force the loser in a lawsuit to pay the other side's legal fees. Now let's just forget the fact that most tort litigation is brought by folks who can't afford to hire an attorney on anything other than a contingency fee basis. Let's also forget that in a "pro-business" environment, the only check on the corporate world's unending quest for maximizing profit is the courtroom. This proposed legislation will shut the doors of the courthouse for all but those who could afford to hire an attorney.

This is the theory of limited government espoused by Gov. Goodhair. Limit the ability of the government to serve the vast majority of Texans, shield corporations by cutting off access to the courts for millions of Texans and increase the tax burden on poor Texans by providing tax relief to millionaires.

It's all relative

It's the middle of the night. Police surround a house. At the designated signal the front door is kicked in and officers storm the dwelling. The people inside the house see nothing but high powered flashlights and guns. They hear strangers shouting and threatening to shoot.

The officers continue through the house until they find the object of their raid. The man is unarmed. Instead of taking the man named in the warrant into custody they take him into another room and shoot him once in the chest and once in the head.

Maybe the evidence was overwhelming that the suspect was guilty as charged. We'll never know for certain because the police played the role of judge, jury and executioner. The dead man was, by law, presumed innocent. He was entitled to due process of law. He was entitled to a trial before a jury. He was entitled to consult with an attorney before making any statements once taken into custody. He was entitled to confront the witnesses against him and to put on evidence in his behalf.

Those rights were snuffed out in the blink of an eye.

What would your reaction be? What if he were charged with armed robbery? Aggravated assault? Murder? At what point is it acceptable to deprive the accused of his rights under the law? What if wasn't a citizen of the United States? What if the police officers were serving a warrant from another country?

The Constitution makes no distinction between the rights afforded to citizens and noncitizens. The Constitution makes no distinction between the rights afforded to a man accused of murder and a man accused of DWI.

Osama Bin Laden was accused of masterminding a criminal act of horrific magnitude in the United States. Mr. Bin Laden was unarmed at the time he was killed. No matter how heinous the crime of which he was accused, Mr. Bin Laden was entitled to his due process rights.

But the Navy decided to take justice into its own hands. The deprivation of rights is never anything to be cheered. Particularly by men and women who swore to defend the Constitution. If Bin Laden is not entitled to the protections afforded by the Constitution, who's next in line to lose their protection?

Up in arms about an illegal search? How about a Miranda violation? Didn't get your Brady material? Did you cheer the news of a killing in Pakistan? A killing that violated a man's rights?

We don't defend an individual as much as we defend the Bill of Rights. We don't defend what a person may or may not have done so much as we defend his rights under the Constitution. Sometimes it can be distasteful, but even the worst among us deserves his rights. That's what we do.

This is supposed to a nation of laws; but I suppose that's all relative.

A wandering mind

A few random thoughts after a 4-hour drive to Dallas this evening...

If you're going to open a business by the freeway and paint a big sign - you might want to make sure you got the spelling right. I drove by a joint near Corsicana called Wisper's Cabaret.

How does anyone know for certain that their taillights are working? I passed a Ford SUV with no working taillights. I don't think the driver had a clue they weren't working. The only reason I know mine work is because I see a reflection of the back of my car when I leave the office.

The Shock Wave (a double loop roller coaster at Six Flags) doesn't look nearly as big or scary now that I'm grown. I rode it quite a few times growing up and it just looked big. I drove right by it tonight and it didn't look nearly as inimidating.

I was informed tonight by the night clerk at the hotel that I looked like a Kennedy. The reddish-brown hair, ruddy complexion and blue eyes must be the giveaway. She also asked me if I was here for the home-schooling convention. That would be a "no."

Is there an American male singer with a better voice than Johnny Cash? I grow more convinced everyday that there isn't.

I don't think the pierced lip impressed the judge too much. Of course, what do I know? I'm only the lawyer. I'm sure you are a much better judge of what plays in the courtroom than me.

My smartphone is more powerful and cheaper than the first computer I bought. It boggles the mind just what we can do with a cell phone.

If the purpose of the mission was to kill Osama Bin Laden, just say so. It would be a lot less painful than the evershifting story of what may or may not have happened.

To fight or plea

While I was at the Harris County Criminal (In)justice Center this morning I ran into a colleague who used to have an office in the same building I'm in. He asked me if it was considered malpractice to plead out a client on a DWI case.

I told him no, I didn't think so, because sometimes the circumstances surrounding a case require you to negotiate a plea. For instance, suppose you have a client who picks up a DWI - but no one realizes there was a prior DWI conviction because it couldn't be confirmed at the time of the arrest. Now let's suppose it's a defensible case (not necessarily a winner, but a case that is winnable). Now what happens when the prosecutor offers your client a deal that doesn't take the prior conviction into account. What do you do?

If you believe that every DWI case should be fought to the bitter end, you run the risk that the prosecutor will uncover the prior conviction and muster his evidence to prove up the conviction at trial. Now, instead of time served and a fine, your client is looking at jail time or a long stretch on probation.

Were your client's interests served by refusing to entertain a plea offer? If you've increased your client's exposure without discussing the consequences with him - the answer is no. Entering into a plea might have been the best way to dispose of the case - but you refused even to consider it.

Throw in the DIVERT program (no matter how flawed) and there may be additional reasons to plead out that case rather than go to trial. If keeping that record clean is your client's most important concern then there are reasons to consider the program (just make sure your client is fully informed of both the benefits and risks of the program). Not allowing your client to make the decision whether to plead or go to trial is the worst mistake you can make.

Now, pleading out a DWI case on the first setting or before you've conducted any discovery is committing malpractice. The collateral consequences of a DWI conviction are too vast to plead out a client without investigating the case.

In our world, very little is black and white. We live in a world of grey. Always doing something or never doing something are equally harmful to our clients.

To the victor go the spoils

Brian Tannebaum writes today about the shifting sands of truth regarding the killing of Osama Bin Laden. Was the intent of the mission to capture Bin Laden or was it to kill him? Was Bin Laden armed or wasn't he? Did he resist or not?

The more the government says about the operation, the less clear it becomes what really happened. What ever happened to just telling the truth? If you don't know the answer to a question, just say "I don't know" or "I don't recall." People get tripped up all the time trying to keep their lies straight.

Of course it's not just our clients who get tripped up. We've all read offense reports in which it's abundantly clear that the officer is lying fabricating a scenario by which he gets to stop the driver or search the car. And everyone consents to any request by a police officer to search their car or home. Right.

Just remember that history tends to be written by the victors. The textbooks will never mention that Bin Laden was unarmed at the time he was shot and killed. That will only appear in an "alternative" history that will be discredited because the "losing side" has an ax to grind.

After all, why would an officer just lie and say that someone was resisting if they weren't? Why would an officer claim that a suspect attacked him if he didn't? The officer's account is swallowed hook, line and sinker by prosecutors and (most) judges and the defendant's account of the incident is ignored because he has a motive to lie.

Scott Greenfield wrote about the case of Richard Rosario - a man convicted of a murder in the Bronx back in 1996. The damning evidence that led to Mr. Rosario's conviction was the testimony of two witnesses who picked Mr. Rosario's photo out of a police book. In a state habeas proceeding, the court found that two alibi witnesses who could testify that Mr. Rosario was in Florida at the time of the murder were "questionable" and "not persuasive."

But the state's witnesses? They were strong. The state's case was unimpeachable.

What makes either set of witnesses any more reliable than the other? Two people testified they saw a man who looked like a dude in a book of photos while two other people testified that Mr. Rosario was with them in Florida when the cops say he was in the Bronx.

But we know who writes the history.

Buck Files to head the State Bar

Congratulations are in order for the new President-Elect of the State Bar of Texas Buck Files of Tyler. Mr. Files will be the first criminal defense attorney to lead the State Bar.

Mr. Files won the election by a mere 481 votes out of the 21,210 votes cast. The win is another victory for the criminal defense bar and solo practitioners across the state following the defeat of the proposed ethics rules amendments earlier this year.

It is a cliche, but in an election like this, every vote counts. Thank you to everyone that voted (and campaigned) for Mr. Files.

Yes, Virginia, a bolo is a tie

I ran into a colleague of mine on the 7th floor of the Harris County Criminal (In)justice Center yesterday while I was voting for the attorney representative on the Harris County Bail Bond Board. My colleague and I have a couple of things in common: we both graduated from South Texas College of Law and we both wear bolo ties.

He saw mine and told me not to go near County Court No. 4 because the judge, John Clinton (who has appeared before on these pages) did not care for his choice of neck wear. Apparently the judge felt it was an affront to the court to walk into the courtroom wearing a bolo tie not pulled up to the adam's apple.

The judge went so far as to claim that the bolo wasn't a tie.

Well, maybe it's time for some legislative history on this matter because on June 15, 2007, the Good Haired One, Governor Rick Perry, signed House Concurrent Resolution 12 making the bolo tie the official tie of Texas.

According to the text of the resolution, the bolo tie is:

A fashion accessory that can be personalized to reflect the wearer's taste and interests, the bolo tie is well matched to the individualism that is so much a part of the Texan identity; in selecting or designing a clasp, bolo tie wearers are able to express their personal flair; moreover, the selection of a bolo over a standard tie can suggest that the wearer refuses to be bound by convention and relishes the freedom to exhibit a distinctive sense of style even as they maintain a dignified, formal appearance.

The bolo tie symbolizes both the state's iconic western culture and the originality of its residents, and it is indeed appropriate that this handsome and unique apparel receive special legislative recognition...

I tend not to agree with much of what Gov. Perry does, but in this case, Gov. Goodhair got it right. So Judge Clinton just needs to get on board; after all, he and Perry bat for the same team.

Bowling for beer

Hmmm. Silly me, I always thought pints just came in one size on this side of the pond.

One lump or two?

Oh, the hypocrisy of those limited government folks never ceases to amaze. As Grits for Breakfast reports, Teabaggers in Smith County (that would be northeast Texas, for those of y'all not in the know), have come out in favor of (yet another) referendum to build a new jail.

Nevermind the fact that voters in Smith County (hardly a liberal stronghold) have said "thanks, but no thanks" on four previous occasions. Nevermind the debt the construction project would impose on county coffers.  Nevermind the fact that it costs Smith County less to house a few inmates in other counties than it would to pay for a new jail. Nevermind that the majority of folks being housed in jails across this state are being held for nonviolent crimes.

In other words, nevermind the fact that the Teabaggers proclaim themselves to be champions of limited government. The same folks that tell the world we need less government, not more, have no compunction about lobbying for restrictions to be placed on the constitutional rights of those accused of criminal activity. The same folks that tell the world we need less government, not more, have no compunction about creating new crimes or harsher penalties because of one bad incident that occurred. The same folks that tell the world we need less government, not more, have no compunction about allowing the police to intrude more and more into the lives of ordinary citizens -- whether it be through "back-dooring" our e-mail or cell phone communications or fondling people boarding planes.

You want to reduce the cost of incarcerating our fellow citizens? How about personal bonds for folks charged with minor nonviolent offenses who have no prior criminal record? How about allowing police officers to issue tickets for possession of trace amounts of marijuana instead of hauling someone off to jail? How about more pretrial diversion programs for folks without criminal records? How about reducing bonds so that defendants don't have to sit around in jail until their cases are disposed of?

The problem with those ideas, though, is that they're logical.

Looking for the next bogeyman

Yesterday's bogeyman is dead.

Today Scott Greenfield asks whether the death of Osama Bin Laden will change anything. Now that the mastermind of the 9/11 attacks is lying at the bottom of the sea, will the apparatus of the security state be dismantled?

Will the Patriot Act be repealed? Will the government cease efforts to do away with the Great Writ? Will the concentration camp prison at Guantanamo Bay be closed? Will the metal detectors at small town courthouses across the country be dismantled? Will los federales stop trying to force cellphone providers to give the state backdoor access to our communications? Will the airport gropers be forced to look for other employment? Will we finally stop flushing money down the toilet building more and more tools of death for the military? Will our young people be brought home from the Middle East?

I doubt it.

Already the government is warning us that the world might be a more dangerous place because of the death of Osama Bin Laden.

That's what the security state needs -- an enemy. Knock one down and put another in its place. After all, the government must justify the permanence of every "temporary" security measure.

The world is a dangerous place. It was a dangerous place before 9/11. It will be a dangerous place long after I'm dead and gone.

The goal of the security state is to do away with those pesky little protections afforded to us under the Bill of Rights. We can't allow the death of one bogeyman to get in the way of the eradication of our civil liberties. There will always be another threat just around the corner. And, because of that threat, the apparatus of the security state must remain in place. In fact, I'm certain that someone will stand up and call for more draconian security measures in the wake of Osama Bin Laden's death.

Where are those advocates for limited government when you need them?

Feel free to ignore the alarms

If you're putting up a notice telling everyone it's a fire drill -- just how effective do you think it's going to be?

No word on whether the folks standing by the stairs will practice suffocating from smoke inhalation since they won't be able to reach the ground floor by the stairwells.

On measuring cups, crack and jail overcrowding

The boys over at Freakonomics have posited an interesting question -- did the sale of Pyrex hurt the crack cocaine industry?

It sounds quite far-fetched, I'm certain, but it makes some sense if you look into the issue a bit more deeply. The theory goes something like this...

Pyrex is (or at least, was) a great material for handling extreme changes in temperature. You could fill a bowl with a cold substance, throw it in the microwave and boil it, all without the glass shattering. At least you could before Corning sold Pyrex in 1998. The new owners, World Kitchen, changed the manufacturing process around and now Pyrex isn't quite so good at handling extreme temperature changes.

Crack cocaine is made by melting powder cocaine in water at high temperatures then letting it cool. It wasn't a problem for the old Pyrex measuring cups -- but the new ones, not so good. Crack manufacturers had to find new vessels to cook up their brew - namely, test tubes stolen from labs.

Now we all know it's far easier to buy a Pyrex measuring cup than it is to steal test tubes. Hence, the cost of producing crack has gone up and the supply has gone down.

Pyrex is valued by cooks for its sturdiness in the kitchen, particularly its ability to withstand rapid, dramatic temperature changes that typically shatter normal glassware. It turns out that people making crack cocaine valued this quality too. The process of cooking powder cocaine into hardened crack is intense, and involves a container of water undergoing a rapid temperature change. For years, Pyrex measuring cups, manufactured by Corning, were a key component of the underground crack industry. 

But Corning sold Pyrex in 1998 to World Kitchen, which altered the makeup of the Pyrex material, making it less resistant to temperature changes and more prone to shattering. 

If you're a fan of Mythbusters you'll get a kick out of this video in which the boys at Popular Science show the different ways you can cause a Pyrex cup to explode.

The lesson is that you can never be certain of the consequences of any particular decision until somewhere down the road.

This principle plays out on a daily basis in the criminal courthouse. By not granting personal bonds for people charged with nonviolent Class B misdemeanors, the courts "force" defendants to plead guilty in order to get out of jail. These folks now have criminal records that can make it harder for them to find housing or jobs. As a result of overcrowding in the county jail we've had to spend money to build new jails and even more money to pay other counties to hold Harris County inmates awaiting trial.

Harris County could institute a "catch and release" program for minor possession cases. Instead of arresting the person and hauling them off to jail, the police could issue a citation with a promise to appear in court. Such a policy would reduce the number of people held in the county jail and would take away the pressure to plead guilty in order to get out of jail. That conviction for a possession of marijuana could prevent a student from receiving financial aid in college - putting a degree beyond their reach.

Our state legislators rarely (if ever) consider the long-term consequences of anything they do -- they are focused on the next election, to the detriment of everything else. There are days I thank my lucky stars that they are only in session for 140 every other year.

Burn those draft cards!

Prior to the decertification of the National Football League Players' Association, the players and owners bargained collectively on the rules by which the NFL operated.

Unlike most industries, the NFL was allowed to operate in such a way that violated the Sherman Anti-trust Act. The league created high barriers to the formation of any competing league so as to guarantee itself a monopoly over the professional football industry. Everyone turned a blind eye to what the league was doing because it was small potatoes -- until the cable industry matured.

Suddenly the NFL was a hot property and the rights fees have escalated to the point that the NFL brings in roughly $9 billion a year. That money is divided among the owners and players per their collectively bargained agreement.

But with the decertification of the NFLPA, and with the amount of cash that flows in NFL coffers, folks are starting to take a harder look at how the NFL operates. After the NFL instituted a lockout this spring, the players were successful in having a federal judge in Minnesota sign an injunction preventing the NFL from continuing the lockout. The players alleged that the NFL was in violation of anti-trust laws.

Now that the lockout has been lifted there is uncertainty regarding the rules under which the league will operate in 2011. Any rules the league tries to impose to limit the right of free agents to sign with the teams of their choice may be challenged as being in restraint of trade. But what about tonight's draft?

By instituting a draft, the league is preventing new players from exercising their right to choose where they work. The league is also preventing teams from exercising their right to hire the players they choose. The draft hurts incoming players chosen late in the round because they are unable to effectively bargain with their employer over the terms of their employment. The draft also hurts those players who aren't chosen by driving their wages down to the league minimum.

The draft gives the teams all of the leverage in their negotiations with the players. If a player doesn't like the offer made by the team he has two choices - he can sign or he can sit at home; but if he chooses to sit at home, he still can't choose where he plays because the team that drafted him retains their "rights" to his services.

The only question is whether anyone will have the nerve to stand up and challenge it.

Protecting their own

As I was looking through my Google Reader on Wednesday, I happened upon a post on Grits for Breakfast in which Scott Henson questioned why prosecutors enjoy absolute immunity for their misdeeds while peace officers  are only granted "qualified" immunity.

Mr. Henson linked to an article by Erwin Chemerinsky, the dean of the UC-Irvine Law School and a constitutional law scholar, in which Mr. Chemerinsky looked at two recent US Supreme Court cases in which the high court ruled against exonerated citizens seeking recompense for the time they spent locked up on wrongful convictions.

Unfortunately, the Supreme Court has not gotten the message. Twice in the past three years the Court has considered lawsuits by innocent individuals who were convicted and spent years in prison because of prosecutorial misconduct. In both instances, the Court held that the victims could not recover. Together, these cases send a disturbing message that the Court is shielding prosecutors from liability. The result is no compensation for wronged individuals and a lack of adequate deterrence of prosecutorial misconduct. 

There is a serious problem in this country. Our criminal (in)justice system, through the erosion of defendant's constitutional rights and admission of junk science, has locked away hundreds of people whose convictions were later overturned -- not through the appeals process but through the filing of writs. The vast majority of these convictions were overturned when DNA tests (not available, or performed, at the time of trial) revealed that the person convicted for the crime was not the person who committed the crime.

In many of these cases prosecutors withheld evidence that may have led to a different result. In many cases these constitutional violations were intentional. And, in most of those cases, the prosecution had multiple opportunities to correct the error but chose not to.

To answer Mr. Henson's question "why" prosecutors enjoy absolute immunity from lawsuits alleging misconduct, we have to look at who's making the rules. Now I can only speak about Harris County but the vast majority of criminal judges at 1201 Franklin came from the Harris County District Attorney's Office. I am quite certain this is not a phenomenon unique to southeast Texas.

Judges already have a hard enough time believing that police officers beat suspects without reason and lie in their reports and on the stand. These judges have a hard enough time believing that eyewitness testimony is inherently unreliable and that forensic evidence is often of dubious provenance. Many of these judges have a hard time believing that a defendant is innocent unless proven guilty beyond all reasonable doubt (if you have any questions, just look at the bond conditions imposed on some defendants). Why on earth would one of these judges believe that prosecutors behave badly?

Why would a judge believe that the prosecutor who walks into her courtroom everyday was capable of withholding exculpatory evidence? Why would a judge believe that her former colleagues intentionally violated the constitutional rights of criminal defendants? Why would a judge who campaigned as being "tough on crime" believe that "her" prosecutors breached their ethical duty to see that justice was done?

And why would anyone on the bench care about the person freed from prison years later for a crime he didn't commit? Why would they care about the years he lost? Who cares whether he can pick up the pieces of his shattered life and start over again? That's not the judge's problem. He had a trial. So what if the jury got it wrong due to prosecutorial misconduct? So what if the jury got it wrong because of junk science?

If he wasn't guilty of that one, he was probably guilty of something else, right?

Seeking link exchanges

I recently received the following e-mail (no link love, though)...

Paul,
I recently emailed you about exchanging links on your blogroll. I have the following three blogs that support my law practice. 

www.criminallawyerillinois.com
www.illinioisdui.us
www.federalcriminallawyer.us 

Can we exchange links?
Lewis Gainor

No, Mr. Gainor, we cannot exchange links at this time. You see, the blawgs I link to my blawgroll are blawgs that I read on a regular (okay, in some cases, semi-regular) basis. There was no quid pro quo in my linking to them. If the authors responsible for them found my blawg interesting then they were free to link to my blawg. I never emailed anyone asking them for a link exchange. I've also never taken down a link because someone didn't "return the favor."

The blawgosphere is a fairly liquid place. New blawgs come and go on a regular basis. Some folks start a blawg because they have something to say. Others start a blawg because some SEO person told them it was a great way to move their website to the front page of Google or Yahoo! or Bing.

The ones who did it for SEO are pretty easy to spot. Their posts are "keyword rich" and recite the law regarding the classifications of crimes and field sobriety tests. Those blawgs are rarely updated and soon fall into a state of disrepair when the author realizes he has nothing else to say.

On the other hand, the blawgs written by folks who have something to say are interesting and diverse. They are serious and funny. They make you laugh and they make you think. They tell stories. They make analogies. They don't have every possible keyword crammed awkwardly into their posts. They aren't forced.

Lewis, you are more than welcome to link to my blawg. If you want me to link to your blawg, on the other hand, you need to give me a reason why. Stop writing the SEO-style posts. Stop cramming the articles with keywords. Stop trying to sell someone something in every post. Tell a story. Put up a funny picture. Find your point of view and express it.

Don't blawg because you want more "link juice." Blawg because you enjoy sitting down and writing. I'll drop back by your blawg in a while. If I find it more interesting, then I may link to it.

Good luck. In the meantime, check out the following blawgs:

• Defending People
• Simple Justice
• Criminal Defense Blog
• Life at the Harris County Criminal Justice Center
• A Public Defender
• Probable Cause

A tale of two sermons

On Friday night the church my wife and girls attend put on a play about the crucifixion. My oldest daughter was in the play and she recruited my wife and youngest daughter to participate. The little drama was good and left everyone feeling a bit better I think.

Then the preacher sat down on the steps to the stage with the lights dimmed and started talking in a matter-of-fact voice. He was telling everyone what a downer Good Friday was. He never stood up while he spoke. He just kept hammering at what a bummer it was that it was Good Friday. Everyone left the building in a down mood.

Sunday, though, was a different story. He was walking around all jumpy (like he'd had five or six cups of coffee). His gestures were exaggerated. He sounded almost out of breath from excitement while talking. It was a wonderful day. Everything is born anew. Be happy. Today is the first day of the rest of your life. The room was happy and the people walked out into the sunlight in a much more festive mood.

Two different messages on two different days effecting two different moods - all by the same person.

He accomplished it through his voice, his gestures, his mannerisms and his clothes. On Friday night he spoke slowly and thoughtfully -- on Sunday it felt like he was winging it. On Friday every gesture spoke of weariness and depression -- on Sunday he gestured like a kid running toward the Christmas tree. On Friday he sat down while he spoke -- on Sunday he was all over the place. On Friday he wore a dark suit -- on Sunday he wore a white robe.

Both days, however, he held the attention of the audience in the palm of his hand.

Friday night's message was like the typical state's voir dire -- absolutely uninspiring. A prosecutor sets the tone when she says to the panel, "I know y'all are bummed out at having to be here today..." What kind of message does that send out to the jury? How enthused do you think the folks who sit on the jury are going to be?



I much prefer to thank the jurors for coming in and taking part in the most democratic of our democratic traditions.  I want a jury made up of folks who want to be there and who are eager to hear the evidence.

I'd much rather be delivering the Easter Sunday sermon than the Good Friday one. Wouldn't you?

Little black boxes

Scott Greenfield at Simple Justice wrote recently of a gentleman who proved that the cameras used to catch speeders in Prince Georges County (MD) aren't quite as accurate as portrayed by the manufacturer and the local constabulary.

Given a half-decent presentation by some "expert" getting a biweekly check by a manufacturer, police and municipalities are sold on the irrefutability of  machines to ascertain violations of law.  That same "expert" then trots into court, sells a judge on the conclusiveness of the toy purchased in bulk by law enforcement and, like magic, it convicts.  There's no arguing with magic boxes and pictures with stamps on them.  When the box says you did it, what judge can disagree? 

We have become blindly reliant on the accuracy and irrefutability of technology.  While some, perhaps even most, are indeed accurate when properly used, calibrated, cared for, when the optimal conditions exist and nothing interferes or impairs the sterile laboratory settings under which their viability is determined, they don't necessarily remain accurate when on the road. 

Mr. Greenfield then goes on to talk about the problem with judges (and jurors) relying on the mystical information provided by little black boxes. We don't require the police who operate the various black boxes (radar, laser and breath test machines) to have any idea how the blasted things work. We listen to these officers describe the length and rigor or their training -- which apparently teaches them nothing more than how to turn on the machines and input some information.

What about those sweet black boxes into which one blows, awaiting a digital readout that will let you know whether you will be sleeping in your own bed that night or find your face on some registry of people who will be permanently unemployable?  There have been a multitude of efforts to find out exactly what happens inside those boxes, and maybe some day somebody will figure it out.  In the meantime, does it occur to any judge who has ever admitted evidence from a mysterious black box that he will convict a person based on conclusory evidence by some outside equipment vendor, the accuracy of which may be completely assumed? 

Seriously, judge, if have no clue how something works, generically or under the specific circumstances presented, how can you blindly assume that magic boxes, cameras, whatever, provide a sufficient basis to sustain a conviction?

We are convicting people daily on the basis of information provided by some magical algorithm that no one is ever forced to disclose. We are asked to accept as fact that someone was traveling at a certain speed or had a certain alcohol concentration in their blood. Yet the courts don't require that the folks who use these black boxes prove up their knowledge of how they actually work.

Let's think about that for a second. The Intoxilyzer measures the changes in a wavelength of light to determine the alcohol concentration of the person blowing into it. The alcohol concentration is expressed in terms of volume. Just try getting an explanation from a cop or from the state's "expert" witness as to how we translate length into volume.

I'm still trying to figure it out. In the meantime, I've got a magical yardstick I'll sell you. It'll tell me how much you weigh just by measuring how tall you are.

Death of a revolutionary

The other day Norm Pattis wrote a blawg post asking who Jesus and Socrates were. I would answer that Jesus was a revolutionary who was killed because he represented a threat to the state.

If you read the Gospel of John you will find that the Roman governor, Pilate, had no desire to execute Jesus. That demand came from the Jewish high priests. But why?
The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.

“You are a king, then!” said Pilate.
Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”“What is truth?” retorted Pilate. With this he went out again to the Jews gathered there and said, “I find no basis for a charge against him. -- John 18:37-38

The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.

Once more Pilate came out and said to the Jews gathered there, “Look, I am bringing him out to you to let you know that I find no basis for a charge against him.” When Jesus came out wearing the crown of thorns and the purple robe, Pilate said to them, “Here is the man!”
As soon as the chief priests and their officials saw him, they shouted, “Crucify! Crucify!”
But Pilate answered, “You take him and crucify him. As for me, I find no basis for a charge against him.” -- John 19:4-6

And that's just what Jesus did. He stirred up the masses with his parables of the ways in which the people were being oppressed by the Romans. He inflamed passions with his parable of the ways in which the high priests collaborated with the Romans. He taught the masses the importance of being self-sufficient.

Blessed are the meek, for they shall inherit the earth. -- Matthew 5:5

Those are the words of a revolutionary. Years after the fact the Roman Catholic Church deified Jesus and began to propagate the myth that he preached of an afterlife. The truth is, Jesus preached of a new kingdom on Earth - a kingdom of equality, a kingdom of justice, a kingdom of peacemakers.

These ideas were a threat to the status quo and to those who benefited from the way things were. Jesus had to die - his mere presence was a threat to the high priests.

Was his body in that tomb three days later? I have no idea. The accounts in the gospels were written years after the events portrayed and may have been authored to obscure the reality of who and what Jesus was. Could Jesus' body have been a metaphor for his revolutionary theories? Could the resurrection be a metaphor for the reigniting of the revolutionary spirit of the people?

Karl Marx wrote that religion was the opiate of the masses. Might religion have co-opted one the world's greatest revolutionaries?

Earth Day 2011

Today is Earth Day.

This past Wednesday, on the other hand, marked the one year anniversary of BP/Deepwater Horizon blowout in the Gulf - one of the worst environmental disasters in history.

Did the Chicago Cubs throw the 1918 World Series?

The feud in the Windy City between Cubs and White Sox fans may be heating up once again as a 1920 deposition given by "Black Sox" pitcher Eddie Cicotte has surfaced in the Chicago Museum of History alleging that the Cubbies threw the 1918 World Series.

According to Mr. Cicotte, he heard the rumors while the Sox were heading east on a road trip in 1919.

"The ball players were talking about somebody trying to fix the National League ball players or something like that in the World's Series of 1918. Well anyway there was some talk about them offering $10,000 or something to throw the Cubs in the Boston Series. There was talk that somebody offered this player $10,000 or anyway the bunch of players were offered $10,000 to throw this series... Somebody made a crack about getting money, if we got into the series, to throw the series."

Mr. Cicotte went on to say:

"We never held any secret meeting but we would meet one or two at a time and we all agreed that for a piece of money we would throw the World Series. I was supposed to get $10,000."

The Cubs lost the 1918 World Series to the Boston Red Sox 4 games to 2. None of the games were decided by more than one run but there were some very interesting plays in each game that led to Red Sox victories. The following year the White Sox were heavily favored to beat the Cincinnati Reds in the World Series but came up short. It later surfaced that eight players for the Sox accepted money to throw the series. All eight were banned from baseball for life.

White Sox third baseman, Buck Weaver, was the only member of the Black Sox who did not accept any money to lay down. He, too, was suspended for life for not reporting his knowledge of the fix to team officials.

So maybe that supposed curse of the goat Cubs' fans blame for their team's post-season woes isn't the reason the team hasn't won the World Series in over 100 years.