Just send 'em down the road

Who'da thought there might be homeless people living in and around downtown Houston? I mean, that's just got to be a complete and total shock to anyone and everyone. That, and trash, noise and the other assorted sins of the inner city. What a horrid awakening for anyone from the suburbs or the wealthy enclaves within the city limits.

Well, the folks who paid a big ass chunk of change to move into lofts on the east end of downtown (not the, shall we say, nicest part of town) are now having to deal with the realities of urban life. I'm sure it was just an oversight of the real estate agent not to mention these things we all take for granted to the oblivious yuppies looking for the "next big thing."

Residents in East Downtown (across the freeway from the ballpark) must have been taken aback when they found out just how gritty their (supposed) yuppie wonderland was. They've banded together, however, to "take back" their neighborhood (from the people who were there long before they left the land of three-car garages). The residents have asked the city to ban homeless folks from sitting or sleeping on the sidewalks in a 220 acre area.

Councilman James Rodriguez is spearheading the effort to expand the city's "civility code" to the neighborhood in hopes of attracting new developers (and forcing the homeless to go to someone else's neighborhood -- most likely where no one has enough money to make themselves noticeable to local politicians). Mr. Rodriguez says local churches and charities who provide food for the homeless are to blame for the situation.

Under the "civility code," folks who set up camp in a neighborhood and don't leave when demanded requested by police could face fines of up to $200 - or, more likely, time in the city jail because they don't have the money to hire an attorney or pay the fine).

Laws such as these seek to criminalize the poor because they are, after all, poor. How about we look to address the real problems underlying homelessness in this country? We need to find a way to provide access to medical services, including mental health care, for the poor. We need to figure out how to provide these men and women with a source of income and a bed to sleep in. We need to address structural unemployment in this country.

The City of Houston and Harris County gladly pony up money to help billionaires build private playhouses for their sports franchises. The city will gladly declare eminent domain over property whose owners won't sell for the price developers are offering. As a nation we seem to have no problem burning billions of dollars a year to send young Americans to their deaths to satisfy the ego of whomever sits in the White House. We seem to have no problem criminalizing more and more types of behavior and putting more and more people under the supervision of the courts.

And, instead of trying to find a solution to a problem, we just want to pack it up and send it down the road a bit so someone else can be bothered.

Oh, for the love of Cthulu

It would appear that someone down at the DMV isn't up on their occult studies. The license plate frame is a very nice touch.

Bk

A BALK is an illegal act by the pitcher with a runner or runners on base, entitling all runners to advance one base.

MLB Rule 2.00


The pitcher, following his stretch, must (a) hold the ball in both hands in front of his body and (b) come to a complete stop.  This must be enforced.  Umpires should watch this closely.  Pitchers are constantly attempting to “beat the rule” in their efforts to hold runners on bases and in cases where the pitcher fails to make a complete “stop” called for in the rules, the umpire should immediately call a BALK. 

MLB Rule 8.01(b)


If there is a runner, or runners, it is a balk when— 
(a) The pitcher, while touching his plate, makes any motion naturally associated with his pitch and fails to make such delivery; 
(b) The pitcher, while touching his plate, feints a throw to first base and fails to complete the throw; 
(c) The pitcher, while touching his plate, fails to step directly toward a base before throwing to that base; 

(d) The pitcher, while touching his plate, throws, or feints a throw to an unoccupied base, except for the purpose of making a play; 
(e) The pitcher makes an illegal pitch; 
(f) The pitcher delivers the ball to the batter while he is not facing the batter; 
(g) The pitcher makes any motion naturally associated with his pitch while he is not touching the pitcher’s plate; 
(h) The pitcher unnecessarily delays the game; 

(i) The pitcher, without having the ball, stands on or astride the pitcher’s plate or while off the plate, he feints a pitch; 
(j) The pitcher, after coming to a legal pitching position, removes one hand from the ball other than in an actual pitch, or in throwing to a base; 
(k) The pitcher, while touching his plate, accidentally or intentionally drops the ball; 
(l) The pitcher, while giving an intentional base on balls, pitches when the catcher is not in the catcher’s box; 
(m) The pitcher delivers the pitch from Set Position without coming to a stop. 
PENALTY:  The ball is dead, and each runner shall advance one base without liability to be put out, unless the batter reaches first on a hit, an error, a base on balls, a hit batter, or otherwise, and all other runners advance at least one base, in which case the play proceeds without reference to the balk. 
MLB Rule 8.05

Oops!

The prosecution in the Roger Clemens trial got caught throwing an illegal pitch on Thursday and the umpire judge granted Mr. Clemens' request for a mistrial.

The prosecutor played a videotape of Mr. Clemens' 2008 testimony before Congress - the only problem being that someone forgot (?) to redact the portion of the video where Rep. Elijah Cummings referred to a conversation between Andy Pettitte and his wife after being instructed by Judge Reggie Walton not to mention  it.

After speaking to a friend of mine I'm a bit curious as to whether it was just (to paraphrase the NASCAR boys) "one of them trial thangs" or if it was a deliberate attempt to get a mistrial because the prosecutors thought the jury might be a little bit too friendly to the Rocket.

Either way this farce represents a huge waste of taxpayer dollars - made even worse by the budget and financial crisis the country finds itself in. So what if Mr. Clemens lied to Congress. Our representatives up in Washington were on a little fishing expedition in the first place. We're talking about a bunch of athletes accused of using performance enhancing drugs -- we're not talking "serious" issues affecting the welfare of the nation.

No one cares if the latest Hollywood starlet has silicon in her chest and botox in her lips. No one cares if her leading man is injecting steroids to look more ripped. No one cares who's smoking and snorting what. It's all entertainment.

And who is Congress to act pious because they don't think Roger Clemens told the truth in that hearing room? Each and every member of that institution will look you and me straight in the eye and lie like a cheap rug. What's worse: a ballplayer lying about taking steroids or a Congressman lying about what he's going to do with your tax dollars?

Did an 82-year-old man really need to be tasered?

Tasermania is the new fad sweeping the English countryside these days.

According to the BBC, on June 28, 2011, police were called out to a disturbance. An 82-year-old man (whom the English press refers to as an "OAP" - old age pensioner) was arrested for possession of an offensive weapon and for criminal mischief. Now I have no idea what pissed off an 82-year-old man enough for him to vandalize someone's car - but I'm guessing it was pretty bad.

But then the story gets more bizarre as an officer pulled out his taser and "discharged" it. The 82-year-old man was taken to the hospital (or, as they say across the pond, "to hospital"), where he stayed for several days, complaining of pain.

The Independent Police Complaints Commission (IPCC) is looking into whether the use of the taser was either appropriate or proportionate given the circumstances.

What would possess a police officer to unleash 50,000 volts of electricity into the body of an 82-year-old man? What "offensive weapon" could this man have been carrying to justify shooting him with a taser?

Scott Greenfield regularly points out that the first objective for any police officer is to make it home safely at the end of his shift. That objective sometimes causes officers to overreact to a situation and see it as more dangerous that it really is.

We can assume that the old man was not packing heat because he wasn't shot. I think it's also safe to assume that the old man wasn't threatening an officer with his "offensive weapon" because, once again, he wasn't shot. This would seem most likely to be a situation in which an officer tells someone to drop whatever's in his hands and drop to the ground; but the object of the officer's attention doesn't heed the command or doesn't move fast enough to satisfy the officer.

If an officer has to choose between using his gun or a billy club, chances are he will use his gun because it enables him to take command of the situation from a safer position. If a suspect has a knife or a pipe, moving in with the club exposes an officer to the risk of injury - but using a gun allows the officer to stay out of the line of fire. The taser gives the officer a third option - now he can stay at a distance and still bring a suspect to his knees without killing him.

Thus, an officer becomes more likely to rely on his taser as a first resort rather than as a last resort.

It's only coercive if I say it's coercive

co·erce

 [koh-urs]

–verb (used with object), -erced, -erc·ing.

1.

to compel by force, intimidation, or authority, especially without regard for individual desire or volition: They coercedhim into signing the document.

2.

to bring about through the use of force or other forms of compulsion; exact: to coerce obedience.

3.

to dominate or control, especially by exploiting fear, anxiety, etc.: The state is based on successfully coercing the individual.

Supposedly the idea behind implied consent is that when someone applies for a driver's license, he is giving his consent to provide a breath or blood sample upon demand should a law enforcement officer request one following an arrest for driving while intoxicated. But that same motorist has a choice when, and if, that moment actually arrives. A motorist is "rewarded" for blowing over a .08 by having his license suspended for a shorter time period than someone who decides he'd rather not blow into the little black box.

Consent must be given voluntarily by the motorist. The police are not allowed to coerce him into blowing. To prevent the appearance of coercion, officers are required to read a piece of paper with a warning from Section 724.015 of the Texas Transportation Code -- the so-called statutory warning. Should the officer fail to keep to the script he runs the risk of a judge throwing out a breath test result.

Of course what one person perceives as coercive may very well differ from what someone in law enforcement, for instance, might find coercive. The statutory warning informs the motorist that should he choose not to blow into the breath machine, that refusal might be used in a subsequent criminal prosecution. So much for innocent unless proven guilty, huh? And anyone who's ever tried a DWI has heard the prosecutor tell the jury that their client had the opportunity to prove his innocence but chose not to - because he knew he was guilty.

So much for lack of coercion.

Then we had the evolution of Screw the Constitution No Refusal Weekends in which prosecutors lined up judges who were more than willing to rubber stamp search warrants authorizing forced blood draws on misdemeanor cases. They even found judges who were willing to make a complete and total mockery of the Fourth Amendment by accepting "affidavits" by fax - so they wouldn't be inconvenienced by actually having to listen to an officer recite why a blood draw was so necessary in a case that began with a routine traffic stop.

But I digress...

The publicized threat of being strapped down and having a needle jabbed in one's arm just because Officer Bob smelled alcohol on your breath might be seen as having a coercive effect on motorists' decisions whether or not to blow in the black box. In fact, the Texas Municipal Courts Education Center told judges who attended a seminar that

"If a suspect consents to a blood test in the face of a threatened warrant, the voluntariness of the consent may be an issue."

And that's from an organization whose mission is to assist municipal court judges, court staff and prosecutors in screwing defendants "maintaining professional competence."

The Texas Legislature, however, doesn't view it the same way. In its neverending quest to put everyone in the state under court supervision, our brilliant lawmakers in Austin decided to amend the statutory warning provided to anyone arrested on suspicion of driving while intoxicated to include the threat of a forced blood draw as a means of coercing motorists to blow.

SB 1787, which goes into effect on September 1, 2011, adds the following language to the statutory warning:

If the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.

State Sen. Dan Patrick (R-Houston) authored a bill because he was worried that some judge might find the threat of a forced blood draw to be coercive. Apparently in Mr. Patrick's world, a coercive statement's not coercive if the government says it isn't. This comes from a man who claims to be a champion of limited government. Mr. Patrick's idea of limited government seems to be limited to how much the state can tax or spend but not how much the government can intrude when it comes to law enforcement.

It's a good day

So much of our job is thankless. We're firefighters -- rushing to put out the blaze and limit the damage. But every once in a while something happens that makes you smile and remember why you do what you do day after day.

I had one of those moments today. I had a client whose family couldn't afford to bond her out of the county jail. She wasn't a citizen -- but she was here legally. She had a decent job and a family who depended on her income.

This morning the judge lowered her bond and she qualified for release through pretrial services. She'll be sitting at the dinner table with her loved ones tonight.

After I told her she'd be going home this afternoon she said: "Thank you."

How long until they decide to outlaw trial by jury?

The backlash against the not guilty verdicts in the Casey Anthony case has reached Texas. State Sen. Chris Harris (R-Arlington) has let the world know that he intends to introduce a bill that would make it a felony to fail to report a missing child.

That's just what we need in the Lone Star State, another felony.

And, just so we can be reminded that bad facts made even worse laws - Sen. Harris said he will affix Caylee Anthony's name to the proposed legislation. Because we all know that that's what this knee jerk reaction to a jury verdict is all about.

Sen. Harris doesn't give a rat's ass about Caylee Anthony. He saw the opportunity to curry favor with the wing nuts in his district by slapping around the right wing's latest bogeyman -- Casey Anthony.

Don't blame Ms. Anthony for the jury's verdict, Mr. Harris. Take a closer look at the prosecutors. Did they overplay their hand by seeking the death penalty? Did they have one iota of actual physical evidence tying Ms. Anthony to the alleged crime?

While we're drafting legislation in response to a verdict in a Florida trial -- how about you draft legislation that would make it a felony for a prosecutor to withhold exculpatory evidence like a witness who recants his testimony the night before trial. We could call it the Anthony Graves Act.

We could draft legislation that would make it a felony for a prosecutor to hide forensic evidence in order to prevent the defense from running tests. We could call it the Clarence Brandley Act.

We could draft legislation that would make it a felony for prosecutors to put on scientific evidence that they know is nothing but pseudo-scientific junk. We could call it the Cameron Willingham Act.

But no. Wrongful convictions aren't on Sen. Harris' radar. He has no problem with folks being convicted as the result of prosecutorial misconduct and junk science. He has no problem with juries who convict people on less than proof beyond all reasonable doubt. He has no problem with judges who are more concerned with efficiency than justice.

Apparently Sen. Harris has a problem with juries who follow the law.

Sign of the times

"Fourth Amendment? What's that? We don't need no stinkin' probable cause up here in Conroe!"

If a search warrant for blood is "mandatory" up in Montgomery County, does probable cause even exist up there? If judges are willing to rubber stamp fill-in-the-blank and check-the-boxes search warrant applications, is there no such thing as an unreasonable search or seizure? If you're telling the driving public that you're going to take their blood if they refuse a breath test, isn't that coercion - and doesn't that make "consent" invalid?

Is any judge in Montgomery County willing to stand up to Brett Ligon and his minions and suppress breath or blood results that were obtained through coercive means? Is any judge in Montgomery County willing to stand up to Brett Ligon and his minions and scrutinize these fill-in-the-blank and check-the-boxes warrant applications?

DPS policy now law

A controversial DPS policy is now law thanks to an amendment to the education funding bill added by Rep. Jim Pitts (R-Waxahachie). Back in 2008 the DPS began requiring applicants for driver's licenses to prove they were a citizen or were here legally. The passage of the bill puts to bed legal challenges to DPS' authority to check immigration status.

Beginning on September 1, 2011, everyone applying for, or renewing, a driver's license will be required to show proof of citizenship or legal status. What's so bad about that, you ask.

The implementation of this law will lead to an increase in the number of people driving on Texas roads without valid driver's licenses and insurance. Is that really the best way to safeguard the welfare of the driving public?

The Texas Department of Public Safety is responsible for patrolling the state's highways and for protecting the governor and the capitol - not for being surrogate immigration agents. Whether someone is here legally or not is not the business of law enforcement officials. It is not against the law to be in Texas without the permission of the federal government. If we're going to crack down on folks who have risked their lives to come here and work, leave it up to los federales.

The Constitution makes no distinction between citizens and non-citizens when it comes to our rights under the Bill of Rights. The Equal Protection Clause makes no distinction between those who are here with the blessing of the government and those who aren't. Preventing people from obtaining driver's licenses and insurance because of their immigration status serves no purpose other than to provide Rep. Pitts with an issue he can wave in front of the wingnuts come campaign season.

See also:

"Another knee-jerk reaction," The Defense Rests (Oct. 9, 2008)
"DPS calls for drivers' license checkpoints," The Defense Rests (Nov. 12, 2008)
"Judge shoots down DPS drivers' license plan," The Defense Rests (April 10, 2009)

The eyes have it?

The American Optometric Association adopted a resolution at their 2011 House of Delegates endorsing the use of the Horizontal Gaze Nystagmus test by "properly trained and certified" police officers. The AOA "found" that the test is a scientifically proven reliable indicator of intoxication.

The AOA also said it supports the use of optometrists as consultants for law enforcement in the area of the HGN test.

Of course let's not forget the distinction between optometrists and ophthalmologists. An optometrist is must have a Doctor of Optometry degree. An optometrist serves as the primary provider for normal vision problems and for yearly eye exams. An ophthalmologist, on the other hand, is a medical doctor who specializes in the eyes. An ophthalmologist is able to diagnose complicated eye issues and is able to perform laser eye surgery.

You go to the optometrist to get fitted for glasses or contacts. You go to the ophthalmologist when you've got a problem with your eyes. Just who do you think is more qualified to opine on the validity of an HGN test?

But the optometrists believe that training a police officer with no knowledge of the physiology of the eye or of common eye ailments for a couple of hours is sufficient to make that officer an "expert" in the determination, by use of a pseudo-scientific eye test, of whether a motorist has lost the normal use of his or her mental or physical faculties. More than that, the optometrists apparently believe that a two-hour training session on HGN makes a police officer just as qualified as an optometrist to testify as an expert on HGN.

AOA Resolution 1901

You don't suppose that the AOA was just looking for a way to provide supplemental income for its members as whores for law enforcement, do you?

The death machine claims another life

The State of Texas murdered another person tonight.

Humberto Leal wasn't a nice person. He was convicted of a brutal crime. But murdering him doesn't change what happened. It doesn't fill the void in the lives of the family of the victim.

Mr. Leal was a Mexican national who came into this country when he was a child. Under the Vienna Convention, if a foreign national is arrested, he is supposed to have the right to consult his embassy. Mr. Leal was never afforded this right. Well, there was this one little hold up, I suppose -- Congress never passed enabling legislation giving the Vienna Convention the force of law.

I wonder, just as Jim Skelton did tonight on Execution Watch, just what relief was Mr. Leal entitled to as a result of his not being allowed to contact the Mexican embassy. Mr. Leal had lived in the United States most of his life -- he was more American than Mexican. Was his argument that had he been allowed to contact the Mexican embassy he would have had better counsel at trial? There was never a finding that his attorneys provided ineffective assistance.

The federal government, in asking the Supreme Court to stay the execution, claimed that killing Mr. Leal could lead to potential harm to Americans overseas. I feel fairly safe in saying that in no other country would an American citizen accused of murder have had the opportunities Mr. Leal had to fight his conviction. And nothing about the murder of Mr. Leal changes that.

I don't care whether or not Mr. Leal was allowed to contact the Mexican embassy after his arrest. I don't think it would have made one iota of difference in the way this matter played out. I do have a problem, however, with the State of Texas sanctioning premeditated murder by tying down a man to a gurney and pumping him full of drugs.

I have a problem with doctors and nurses and other medical professionals who cast their consciences (and oaths) aside for the almighty dollar and aid the state in its killing. I have a problem with the notion that state-sanctioned murder is somehow acceptable.

I would like to think we're better than that.

Click here to listen to the Execution Watch broadcast from July 7, 2011.

Damn the public, full steam ahead!

So much for the will of the voters. Mayor Annise Parker has announced that the red light cameras are being turned back on.

Of course the mayor is wringing her hands because the public made its opinion of the cameras known and she certainly doesn't want to upset the very people she'll be asking to re-elect her in November. She seems quite upset about having to turn the cameras back on and she was very happy to let us know that the city is asking the court for permission to appeal its ruling on the legality of the referendum.

And we all know the city had nothing at all to do with ATS' claim that the referendum was not authorized by law. We know the city attorney would never have lain in bed with ATS to figure out a way to get around the vote.

This is nothing but a farce. They city never wanted to turn the cameras off in the first place. The entire federal lawsuit with ATS was nothing but a sham from the beginning. The legality of the referendum had nothing to do with whether the city was in breach of its contract.

Mayor Parker and her buddy, David Feldman, orchestrated this charade in order to defy the voters and still say the matter was out of their hands.

Let's just hope that in November voters in Houston are more concerned about what a candidate will do in office than with how many boxes he or she can check off on a census form.

Houston Motion to Certify Permissive Interlocutory Appeal

Testing the presumption of innocence

Why is that whenever someone discusses the verdict in the Casey Anthony case they must preface their comments by stating that they think she was guilty? I was in the elevator at the Criminal (In)justice Center this morning and one of my fellow attorneys said, in reference to the verdict, that you should never allow the facts (or the law) to get in the way of a good case. He thought Ms. Anthony did it.

My colleague Murray Newman posted on his blawg that he disagreed with the jury. He said he thought the jury was "gutsy" in acquitting Ms. Anthony. In his other blawg (for Houston's leading source of misinformation), Mr. Newman noted that even though he hadn't sat through the trial, he felt Ms. Anthony was guilty. 

I didn’t watch a single minute of the Casey Anthony trial.

I didn’t watch any of the testimony live.  I didn’t watch a nightly recap.  I certainly didn’t listen to Nancy Grace prattling on as if she were God’s chosen mouthpiece to all things related to criminal justice.

My knowledge of the trial was nothing more than what I heard in passing.  I had only a thumbnail sketch of the accusations and the evidence.  Maybe I’m crazy, but I don’t like going over the details of a child’s death unless I absolutely must.

But based on what little I knew of the case, Casey Anthony sure sounded pretty guilty to me, though.  Where there is smoke there surely must be fire and circumstantial evidence is still evidence at the end of the day, right?

I didn't watch any of the trial either. I didn't watch any of the nightly prattle that passed as "analysis." Hell, I didn't even know who Casey Anthony was until Brian Tannebaum, Scott Greenfield and Mark Bennett wrote about attorneys who were either commenting on the case or paying a p.r. flack to get themselves on television as commentators.

I don't know how Caylee died. I don't know if Ms. Anthony had anything to do with it. I don't know if her father had anything to do with it. And neither does anyone else who didn't sit on that jury and listen to the evidence that was placed before them.

The public made up its mind based on the mindless blabbering of Nancy Grace and her minions. If you weren't on the jury then you got to hear all sorts of stuff that wasn't allowed in the courtroom. You heard "evidence" that wasn't relevant or was deemed too prejudicial.

Ms. Anthony was innocent the day she was arrested. She was innocent the day she was arraigned. She was innocent the day the jury was sworn in. And because the government's lawyer couldn't prove his case beyond all reasonable doubt -- she is still innocent.

That's what the presumption of innocence is all about.

It's not about whether she got away with something or whether someone thinks she did it. The state failed to prove she had anything to do with the death of her daughter.

I am very happy today that there were twelve men and women who understood the concept and the idea of the presumption of innocence. I am happy that there were twelve men and women who held the government's feet to the fire and forced them to prove up the elements of their case. I am happy that there were twelve men and women who didn't just "add up" the evidence and decide Ms. Anthony was guilty. I am happy that there were twelve men and women who understood just what it means to presume another person is innocent unless prove guilty beyond all reasonable doubt.

No one criticizes juries who convict innocent people. No one criticizes juries who find people guilty despite a paucity of evidence. No one criticizes juries who ignore the presumption of innocence or who hold a defendant's silence against him.

But heaven forbid a jury do its duty.

Execution Watch 7/7/11

Texas plans to execute a man tomorrow who's at the eye of an international political storm. Humberto Leal, Jr., wasn't given consular access at his arrest, as guaranteed in the Vienna Treaty on Consular Relations. Gov. Rick Perry is under intense pressure to put off the execution, at least until the treaty issue is resolved. Unless Humberto receives a stay, we'll broadcast live news and commentary of his execution on Execution Watch. Click here for details. 


TEXAS PLANS TO EXECUTE:

HUMBERTO LEAL, JR., 38. President Obama's pleas to stay the Mexican citizen's execution are having no impact on Governor Perry, who is also turning a deaf ear to the international community and the elite of the U.S. military and criminal justice system. They've warned that Leal's execution would endanger Americans abroad by violating a treaty guaranteeing consular access to foreign nationals who are arrested. Leal's execution is slated six years to the week since he was condemned in the slaying of a 16-year-old San Antonio girl. More background at executionwatch.org; Backpage on Humberto Leal, Jr.


RADIO PROGRAM SUMMARY


EXECUTION WATCH
July 7, 2011, 6-7 PM CT
Houston: KPFT 90.1 FM
Worldwide: www.executionwatch.org


Execution Watch may be followed on Facebook

Diverting from the law

According to the Houston Chronicle, the Harris County DA's DIVERT program is the greatest thing since sliced bread when it comes to dealing with DWI. The article points out that more than 3,000 people have signed up for the program and that 1,431 people have completed it. There have also been 413 people who have been unsuccessful.

Of course the DA's office thinks the program is working great -- that's over 3,000 DWI cases that they didn't have to worry about trying. That's over 3,000 DWI cases in which they have a signed confession from the defendant and a guilty plea before a judge. That's over 3,000 under court supervision because of an allegation that someone was intoxicated while driving. That's over 3,000 cases in which the prosecutor doesn't have to worry about the legality of a stop, of the administration of roadside coordination exercises or the results of a breath or blood test.

We have no way of knowing in how many of those cases there were questions about the stop, the arrest or the testing of the driver. We have no way of knowing how many folks threw up their hands and chose not to fight their case because of a promise their case would be dismissed.

There is one judge at the Criminal (In)justice Center who sees the problem with DIVERT and is unwilling to turn a blind eye.

Critics, including a Houston judge, say the program is illegal because it circumvents 1980s legislation that prohibits deferred adjudication for DWI defendants. Deferred adjudication is a form of probation that allows a defendant to maintain a clean record. 

"Of course it's illegal," said criminal court-at-law Judge Bill Harmon. "But nobody cares." 

Harmon has presided over criminal proceedings for 22 years as a state district judge and four years in the misdemeanor courts. 

"The No. 1 thing that the Code of Criminal Procedure says that you can't get deferred adjudication for is driving while intoxicated," he said. "And court-ordered supervision after a plea of guilty is deferred adjudication."

Judge Harmon is right. If DIVERT were a true pretrial diversion program there would be no guilty plea before the court. A true pretrial diversion plan is an agreement between the District Attorney and a defendant that the defendant will do certain things in exchange for his case being dismissed. If the defendant messes up, the deal is off and the case proceeds as normal - with the possibility that the defendant admitted guilt in his application for pretrial diversion.

In DIVERT, the defendant is taken before the judge and enters a plea of guilty to the charges. The court then resets the case for about a year in advance and the person goes on "probation." Should there be a problem, the person is brought back before the court and given the choice of 30 days in jail or withdrawing the plea and re-entering a plea for probation. That's the problem with entering that guilty plea.

As I've stated before, DIVERT is nothing but deferred adjudication by another name and an attempt by the judges and prosecutors in Harris County to get around the state's ban on deferred adjudication for driving while intoxicated.

Being wronged for doing right

Sometimes, in this bizarre world in which DWI is demonized more than any other criminal offense, you can do the right thing and still get burned. Just ask Brenda Moore.

Back in December 2008, a friend of Ms. Moore's brother asked for a ride. Ms. Moore told him that she couldn't drive because she had been drinking - but that he was welcome to drive while she rode shotgun. Ms. Moore did just what we are all told we should do if we're going out drinking -- get a designated driver.

All went swimmingly well until an Indianapolis police officer stopped Ms. Moore's car because a license plate lamp wasn't working. As it turned out, the brother's friend didn't have a valid driver's license and the officer would not allow him to continue driving the car (no mention of whether he was driving in an unsafe manner, however). The officer then asked Ms. Moore if she was capable of driving. Ms. Moore told the officer she wasn't -- and she was arrested for public intoxication.

Ms. Moore was convicted of public intoxication at the trial court but the conviction was reversed on appeal. The Indiana Supreme Court, in its infinite wisdom, decided that the trial court got it right and affirmed Ms. Moore's conviction.

"I don't think the court did anything wrong in its decision. I think it just shows that until we change the law, more innocent people are going to be made (into criminals)." - Indiana State Sen. Michael Young (R-Indianapolis)

The police and courts may have upheld the letter of the law, but they failed miserably when it comes to upholding the spirit of the law. Ms. Moore did the right thing. She decided that it wasn't a good idea to drive because she had been drinking so she asked someone else to drive. But what did she get in the end for doing the right thing?

This is what happens when you start conducting witch hunts. Pretty soon everyone looks like a witch.

Happy Fourth

Happy Birthday, America!

The turning of the tide

While we celebrate this Independence Day weekend, let us not forget what happened back in 1863.

On July 1, 1863 Confederate troops invaded Pennsylvania looking for shoes and a way to cut Washington, D.C. off from the rest of the Union. The Confederates got the better of the skirmishing that day as Union forces retreated from the town to the hills surrounding Gettysburg.

General Robert E. Lee ordered his men to attack the flanks of the Union army, knowing that if he could get behind Meade's main force on Cemetery Ridge he could cut the Army of the Potomac off from its supply and communication lines. The hero of the day was Joshua Chamberlain who led a regiment of soldiers from Maine. They were the end of the Union line on Little Round Top. They repelled assault after assault after assault the entire afternoon and never broke.

The following day, July 3, 1863, Lee made his plans to attack what he thought was the soft spot of the Union army - the middle. He assumed that Meade would have reinforced the flanks expecting another assault like the previous day. He was wrong.

In the early afternoon hours an artillery barrage shook the countryside as Union and Confederate cannons rained shells for over two hours. Finally, a little after three o'clock, Gen. George Pickett led the charge up Cemetery Ridge. Confederate soldiers had to march 1700 yards across a meadow to get to the ridge. Once they were in range of Union artillery, they were under fire until the battle ended.

The target of Pickett's assault was a group of trees in the middle of the ridge. Despite the horrific carnage, Confederate forces actually reached the Union line before being turned away in bloody hand-to-hand combat.  The Confederates knew the battle was over and retreated back to the woods at the bottom of the ridge.

On Independence Day the Union forces waited for an attack that never came. Lee had lost almost a third of his army and knew he had lost his best chance to win the war. That same day the city of Vicksburg, Mississippi fell after a siege that lasted almost two months. With the fall of Vicksburg, the Union controlled the Mississippi River.

Although the war would continue for almost two more years, the events of that first week of July 1863 marked the turning of the tide.

Texas court prevents disclosure of governor's travel vouchers

Rick Perry is the governor of Texas. He is the chief executive (a weak one thanks to the drafters of the Texas Constitution) of the state.

But, Gov. Perry likes to take out-of-state trips. When he travels out of the state he is accompanied by officers of the Texas Department of Public Safety. Some of these trips have something to do with governing the State of Texas while others are just junkets. More and more of Gov. Goodhair's trips are tied to his campaign for the Republican nomination for President.

But, whether a trip is necessary for the carrying out of his duties as chief executive or whether it's just an excuse to take a vacation, the taxpayers of Texas foot the bill. We foot the bill for travel. We foot the bill for security. And, during a time of austerity - when we are whacking billions of dollars from education - doesn't the public deserve to know where their hard earned dollars are going?

Two newspaper conglomerates thought we did and filed Open Records requests for travel vouchers for the governor's security detail.

Now I understand that some security is necessary -- but, for the most part, the security provided for the governor of Texas is just an exercise in ego-massaging. As important as Gov. Perry may think he is - most folks outside the state don't give a rat's ass who he is. But, in order to prove that he is a Very Important Person, the governor, and his wife, are always surrounded by a security detail. Think about that while your children sit in classrooms with 30 or more students for each teacher.

The Attorney General told the newspapers to take a hike because the information they requested was too sensitive and, if it fell into the wrong hands, harm could befall the Fair-haired one. The newspapers then took the matter to a judge who decided that the AG was wrong and that the information was subject to disclosure. An appeals court upheld that ruling.

Not satisfied with having to explain the expenses, the state begged the Texas Supreme Court to protect them from the public. The AG announced that releasing the details of past security details would have a detrimental effect on future freeloading travel by the governor and his family.

On Friday, the Texas Supreme Court ruled that the information requested was exempt from disclosure on the theory that disclosing travel vouchers for security details on past junkets trips would expose the governor to ridicule harm.

Let's be honest about this. The governor's reluctance to release the information had nothing to do with his safety (or that of his family). Gov. Perry didn't want the information released because he didn't want the taxpayers of Texas to know just how much of our money he spent making himself feel important.

Gov. Perry's all for limited government and reduced government spending -- as long as it doesn't affect him. Gov. Perry wants to keep his travel expenses secret at the same time he's telling the taxpayers that we can't afford to continue to fund education.

You see, that's Gov. Perry's idea of limited government -- we'll limit the services the government provides to the citizens of Texas while I travel around the world on the taxpayers' dime.

Where did he come from?

And at what point, if any, did our hero realize that something was (horribly) wrong? From the Houston Chronicle:

A driver who hit a pedestrian along Interstate 45 in southeast Houston early this morning didn’t stop even though the victim smashed through his windshield and landed in the front passenger seat, officials said. 

The driver, identified as 45-year-old James John Onak, was charged with  felony accident involving injury in the 177th State District Court, according to a Houston Police Department news release.  

The collision occurred in the 12200 block of the southbound Gulf Freeway near Fuqua about 12:30 a.m. Tuesday, according to the Houston Police Department.
Police said the 32-year-old victim, whose name has not been released, died at the scene.
No other injuries were reported. 

Police said a man was driving his Ford Explorer on the freeway when it broke down. He pulled to the shoulder and got out and began trying to cross the freeway. 

The man was hit by a black Mazda, driven by Onak, police said. Police said the collision forced the victim’s body through the windshield, and he landed in the front passenger seat inside the car. 

Onak did not stop after the collision, police said. Police said he allegedly got off the freeway and drove a few blocks before a Precinct 8 Harris County Constable pulled him over at 11600 Kirkvalley near Beamer, and the deputy noticed the car’s front was damaged. Then the deputy saw the victim in the car, police added. 

Police said Onak told the deputy he had hit something on the freeway and that he didn’t know the victim was in the passenger seat beside him. 

Onak was believed to be under the influence and a mandatory blood draw was taken. 

I'm thinking the sound of a body crashing through the windshield and landing in the passenger seat would be enough to alert anyone that there was a problem.

Sadly enough, this isn't the first pedestrian through a windshield story I've come across.

I have no idea whether Mr. Onak was intoxicated or not that evening. I'm fairly certain that had he remained at the scene the endgame of this said incident would be a bit more favorable to him. As a result of his not remaining at the scene, Mr. Ornak is facing a felony charge of an accident involving death.

Depending on the circumstances surrounding the accident, Mr. Ornak might actually stand a better chance to defend himself against a charge of intoxication manslaughter as the state must prove that the accident was caused by his being intoxicated. Having a pedestrian attempting to cross the freeway in the middle of the night is not a circumstance that any driver can reasonably anticipate facing while driving.

How much warning did Mr. Onak have that someone was trying to run across the freeway? What kind of clothing was the pedestrian wearing at the time? Under those conditions, would an ordinary driver with an alcohol concentration of less than .08 (or who had the full use of their mental and physical faculties) have been able to avoid the accident?

Unfortunately for Mr. Onak, by driving on he has handed the prosecution a gun and a golden bullet with his name on it. The state doesn't have to prove that the accident was avoidable. All they have to prove is that he was involved in an accident in which a man was killed and he didn't remain or return to the scene.

Information - Onak

We hold these truths to be self-evident...

Here's a special shout-out to the folks who showed up at the Harris County Criminal (In)justice Center this morning for the reading of the Declaration of Independence. We had over 100 HCCLA members, attorneys and others in attendance for the reading.

Here are a few crowd shots...