A salute to fallen warriors

The Harris County Criminal Lawyers Association will honor its fallen warriors this morning at 11:00 a.m. in the Trial Ready Room on the 7th floor of the Harris County Criminal (In)justice Center.

The Honorable Michael T. McSpadden, the presiding judge of the 209th Judicial District Court will speak and past HCCLA President Robb Fickman will read the names being added to the plaque.

Here are the names of those who will be honored for fighting to defend the Constitution and the rights of the accused:

Frank Alvarez, Jr.

Frank Briscoe

Charles C. Cates

John R. Coe

John L. Denninger

Thomas Barker "Tody" Dupont

Rosemary Garza

William Hatten

Marguerite Hudig

Phil Jenkins

Stuart Kinard

Benjamin Levy

Miron Love

Robert Most

Joe Roach, Jr.

Jose Rojo

Felix Salazar

Don Shipley

Robert J. Sussman

Bob Tarrant

David A. Wills

On statistics and the death penalty

Doug Berman over at Sentencing Law and Policy presents us a new statistic to measure the efficiency of state death machines - "Executions per Death Sentence" or EPDS as the sabermetricians would say.

The Death Penalty Information Center calculated the number of death sentences handed down by state and the number of inmates each state murdered since the death penalty was reinstituted in 1976. Contrary to what you might think, Texas and Ohio do not head the list.

The old commonwealth, Virginia, heads up the list with an EPDS of .725, meaning that for every 100 death sentences handed down, 72.5 executions are carried out. Texas does pop up at number two on the list with an EPDS of .498, however. The national rate, by the way, is .150.

At the bottom of the list of states that have murdered at least one inmate since 1976 are Pennsylvania (.008), California (.015) and Idaho (.025).

If we look at the murder rates by state in 2009 we find that Virginia had a murder rate of 4.4 homicides per 100,000 people while Texas had a murder rate of 5.4 homicides per 100,000 people. Pennsylvania's murder rate was 5.2 homicides per 100,000, California's was 5.3 and Idaho had a rate of 1.4.

Since 1976, New York, New Jersey, New Hampshire and Kansas are alone in not murdering inmates. New York's murder rate was 4.0. New Jersey's was 3.7. Kansas rate was 4.2 and New Hampshire brought up the rear with a murder rate of .08.

So, based on the data at hand, there would appear to be little or no correlation between the number of executions carried out and the homicide rate in any given state. But, of course, having a reputation as a killer works wonders for the candidates on the right running for the White House.

Just ask George W. Bush or Governor Goodhair.

Praise God and pass the ammunition

The right wing propaganda machine has been puffing overtime as we approach the 10th anniversary of the attacks on 9/11 telling us that Islam isn't a religion but an ideological cover for warmongering. We hear the constant chatter that it is a religion of hate and that it preaches destruction of anyone who doesn't worship in the same manner.

And then there's Senator John Cornyn (R-Texas) who takes hypocrisy to a new level with his call for the Air Force to bring back the "Christian just war instruction." But just where does this idea come from? Could it be from the days when the Romans were looking for ways in which to whip the populace into a frenzy for a coming war? Could it have been a rationalization for the Crusades in which the armies of the Church invaded the Middle East and slaughtered untold numbers of people because they worshipped in a different manner?

Public Bible-thumpers like Senator Cornyn might want to take a second look at the Ten Commandments. I believe one of them is "Thou shalt not kill." Now, Senator, correct me if I'm wrong, but that commandment isn't modified in any way, shape or form, is it?

Sen. Cornyn, like most like-minded cowards in Washington (on both sides of the aisle), is only too willing to seek justification for sending our nation's young men to their deaths to achieve political goals. Cloaking his delusions of destruction in the words of the Bible only serves to show the moral and intellectual bankruptcy of the hucksters in the pulpits.

A view of the wildfires from outer space

This is a view of the wildfires burning in Texas from the space station.

If you read Robert Caro's biography of Lyndon Johnson, you'll find out that over the course of history, wildfires sparked by lightning strikes made the Central Texas soil fertile enough to farm. As more and more people moved into the Hill Country, nature's cycle of destruction and new life was interrupted and the soils lost a good deal of their fertility. The increase in population also made the natural occurrence of wildfires more dangerous and destructive.

Texas Fight!

I will be road-tripping up to Austin today with my oldest daughter for the UT season opener against Rice. This will be my daughter's first trip to Austin for a Texas football game. I can't wait to show her around the campus so she can get a feel for what football's supposed to be.

After the long hours and frustration of work, this is what life is all about. I will be such a proud dad as we walk hand-in-hand through the gate and up to our seats tonight. It's a night I hope she'll never forget.

Into the belly of the beast

The other day I had the opportunity to go on a tour of the DPS Houston Crime Lab up on the northwest side of town. I would like to thank Mr. Robert Prince, Jr. for taking me around, not just the facilities in the new building, but also through the old lab next door.

We started off in the old work area. The lab moved earlier this year but there is still some equipment and furniture left across the parking lot (in the blue building you can see from 290). With the dim light and the old equipment lying around, the room looked like the perfect setting for a horror movie or a chase scene in some thriller -- you know, the scene where the girl finds herself running from the bad guy in the abandoned building.

We took a look at the old gas chromatograph which Mr. Prince opened up so I could see the columns inside. He pointed out the injector port, the Y-splitter and the flame ionization detector. I've read about the machines and I've seen pictures in both lectures and in books, but this was the first time I'd ever seen one up close.

As an aside, I'm always amazed when I see a machine that performs a complex task and think about how someone dreamed it up. There is an elegance to the machine. If you understand how it works, when you look at the components you can see a genius at work.

We looked at the old refrigerator where blood samples were stored. We went to the intake room. We saw the room where samples were stored after they were tested. Then it was on to the new building.

As it turns out, through coaching soccer I know a couple of guys who work at the architecture firm that designed the new building. It is a stunning building both inside and out.

Since my ticket to the tour was a court order allowing me to see the machine that my client's blood sample was tested in and the room in which the machine was housed, I didn't get to see the storage areas in the new building.

Mr. Prince showed me how the biological hood worked -- it's almost like something out of Get Smart. I saw the autosampler and he showed me how he seals the vials that are placed in the autosampler for testing. Again, you can read about the process all you want and look at pictures until your heart's content, but it's no substitute for actually looking at the equipment.

On budgets, hurricanes and God

Nothing like taking a hurricane and trying to turn it to your advantage. Of course Michele Bachmann wasn't content to just use the storm as a metaphor. Nope. Ms. Bachmann, who wants to be our next president, claimed that God had visited Hurricane Irene upon the eastern seaboard as retribution for a profligate Congress.

"I don't know how much God has to do to get the attention of the politicians. We've had an earthquake; we've had a hurricane. He said, 'Are you going to start listening to me here?' Listen to the American people because the American people are roaring right now. They know government is on a morbid obesity diet and we've got to rein in the spending." -- Michele Bachmann

Really, Ms. Bachmann? God would send a storm that has claimed some 41 lives and left millions without electricity because she was upset about Congress' fiscal policy? Silly me, I thought the era of the vengeful god was long past. I guess I was wrong.

To be fair, Ms. Bachmann now claims her comments to be a joke. Let's see, anytime someone is quoted saying something stupid on Twitter, Facebook, the radio or on television it's always a misunderstanding, or it was taken out of context or it was meant to be a joke.

Sorry, Ms. Bachmann, I don't think any of the folks affected by Hurricane Irene are laughing. And even if it was a joke, it certainly wasn't very funny.

Besides, if God were so pissed at Congress that she felt some natural disaster was in order -- why not just have a tornado strike the Capitol while Congress is in session? The folks in the path of Hurricane Irene certainly had nothing to do with the fact that Ms. Bachmann and her colleagues can't control a budget. That's right, you're included in this, too, Michele.

Assuming there is a god, just how much time would she really spend contemplating contemporary American politics? Furthermore, why would she even care?

The scary thing is that there are people out there who are more than willing to pull the lever for Ms. Bachmann. It's even scarier to realize that these same folks may be on your next jury panel.

Man v. nature: Galveston edition

Forget hurricanes, floods and other natural disasters that have stricken the island over the years. Ants have invaded the second floor of the Galveston County Courthouse. First floor I might understand -- but moving at will upstairs?!

Just another reminder that it's Gaia's world and we're just guests.

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:

"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."

In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.

The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

Interlock bill would make a mockery of the 10th Amendment

According to my latest issue of Interlock Focus, published by Consumer Safety Technology, Inc. (the folks who make the Intoxa-Lock), los federales are looking to make (yet) another end run around the 10th Amendment.

Senators Tom Udall (D-NM) and Frank Lautenberg (D-NJ) are sponsoring the "Drunk Driver Repeat Offender Prevention Ace of 2011." Unfortunately for the two senators, it doesn't look like they could come up with a fancy little acronym to make it sound more palatable. Better luck next time, guys.

The bill would require states to pass a mandatory interlock requirement on drivers accused of DWI with a prior conviction. The states would have until 2014 before los federales would start taking away highway funds. Sound familiar?

It should. This is the same formula Congress used to force states to raise their legal drinking ages to 21 and to lower the per se alcohol concentration to .08. The bill would dock any state who didn't go along 2% of its road construction funding. That rate would increase to 4% in year two up to a maximum of 8%.

Now here's a challenge for Sens. Udall and Lautenberg -- please point out to me where in the Constitution driving while intoxicated is listed as a federal crime. And you tea-drinking, limited government loving Republicans, do explain to me how this bill advances the agenda of limiting government intrusion in our lives.

Somehow I don't think I'll be getting any responses.

It's all about that filthy lucre

If you ever had any questions about how much of a moneymaker DWI is, this article should put them to bed. A lawsuit has been filed in federal court in North Carolina over the bidding process for supplying ignition interlock devices to the state. 

In its suit, Monitech Inc. says DMV Commissioner Mike Robertson broke state bidding rules by withholding the renewal of its state contract.

Since 1989 the company has been the state's sole provider of ignition interlocks, which test the breath of convicted drunken drivers for alcohol before they can start their vehicles. The devices are often mandated for people convicted of a DWI to keep their driving privileges.

First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.  

Mobley has previously alleged he faced retaliation from DMV officials after he refused in 2004 to sell his business to Law Enforcement Associates, a firm whose investors included then-Senate Majority Leader Tony Rand. The Fayetteville Democrat was co-chairman of the Governor's Highway Safety Program, which oversaw DWI prevention programs.

A close political ally of Rand's, then-DMV commissioner George Tatum, also owned LEA stock with his wife. Tatum was the state official with the ultimate authority to renew Monitech's contract with the state.

More than a dozen elected officials and their family members have owned LEA stock, including former Gov. Mike Easley, current Gov. Bev Perdue and her husband. Records also show that state agencies purchased at least $192,683 in surveillance equipment from the small company, much of it bought without seeking competitive bids.

Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.

DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.

Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.

The judge has ceased to be neutral and detached. The judge has become part of "the team."

Damn the Bill of Rights, keep those greenbacks coming.

Add earthquakes to the terrorism watch list

The response to the earthquake near Richmond, Virginia was swift and severe.

The search is underway for those who are behind these evil acts. I've directed the full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.

In case of emergency...

Following the untimely death of Marguerite Hudig a couple of weeks ago, my colleagues and fellow HCCLA members, Mark Bennett and Murray Newman decided to create a special "In Case of Emergency" listing for all attorneys who practice in Harris County.

If you practice in Harris County, whether or not you're a member of HCCLA, you can enter your emergency contact information so that, if something were to happen, someone would know how to contact you to check up on your welfare.

The information will not be shared with anyone and can only be accessed by a member of the HCCLA Board of Directors.

Here is the link for more information:

Excellent work, Mark and Murray.

A little in-trial humor

Text message exchange between my wife and I on Monday afternoon after we busted a panel in a DWI trial down in Galveston.

Me: "Heading home. Busted the panel." 

Wife: "Where r u? Panel on your car?

Book Review: Popular Crime

Those of y'all who have more than a passing interest in baseball know who Bill James is. Mr. James practically created the algebra we use to analyze hitters and pitchers.

But Bill James has a hobby outside baseball - he's addicted to true crime stories. So addicted, in fact, that he decided to write a book about our fascination with them. The result is Popular Crime. The book takes us on a whirlwind tour of every "crime of the century" over the last 150 or so years.

His theory is you can really learn something about the history of a people by studying the crime stories they wrote. Crime stories are popular when you have beautiful people, tension and a vicious murder. Put in a "damsel in distress" or a child victim and the popularity of the story will go through the roof.

At their heart, true crime stories are an expose of a society's culture, customs and mores. Adultery, jealousy and greed provide the narrative for a sordid little murder.Want to know who the bogeyman is? Just take a look who the villain is in the books. We've gone from black men to Germans to communists to Latin American immigrants.

Not being a lawyer, Mr. James has little use for the rules of evidence and the concept of due process. In fairness, his interest is determining who did it -- not whether the prosecutor can prove who did it beyond all reasonable doubt. In his utopian court system, the only requirement of evidence would be relevance to the matter at hand. To determine relevance, Mr. James created a seven-step process.

1. State the fact itself in a way that is unambiguously true.
2. State that which tends to be proven by the fact, as if this was known to be true.
3. Put the statement of fact proven by (2) in a "standard evidence" form.
4. Establish the value of the statement of evidence with reference to a standard set of values for such evidence.
5. Make an estimate of the extent to which the statement is unproven.
6. Make an estimate of the extent to which the statement is irrelevant.
7. Discount the value of the statement by the extent to which the statement is unproven or irrelevant.

The hardest thing for Mr. James to wrap his head around is the notion that a jury should not hear evidence that is unduly prejudicial to the defendant. The concepts of hearsay and confrontation are also both out of his grasp.

An interesting point that Mr. James makes is that after the expansion under the Warren Court of protections for the accused, far more defendants are convicted than before. He offers up an explanation that rings true. According to Mr. James, it's harder to beat the rap due to the professionalism of the police and pretrial discovery.

Juries are much more likely today to believe a police officer on the stand than they were in the 20's and 30's. Officers are perceived as more educated and disciplined today. As Gordon Gekko told Bud Fox, "the perception is reality."

It's the other idea that I'm interested in. Back in the early part of the century there was no pretrial discovery. Every trial was trial by ambush. The defendant didn't know what the prosecutor had up his sleeve and the prosecutor had no idea what tricks the defense attorney had in the works. That made it more attractive for defendants to roll the dice and go to trial.

Nowadays we see the offense reports. We see videos of traffic stops or interrogations. We see photographs. We read witness statements. There is very little the prosecutor has that the defense doesn't know about (but, of course, Brady is one case that is honored more in the breach than in the observance). Over at the civil courthouse there is little or no mystery at trial anymore. Thanks to liberal discovery rules, everyone knows what everyone else knows and what everyone's going to say. There's a reason most civil cases settle long before trial.

Is something similar playing out in the criminal courthouse? Does knowing the strengths of the prosecution's case make defendants more likely to enter into pleas rather than taking a chance at trial? As both sides operate with more information we're seeing prosecutors drop more and more of their weak cases and defendants pleading when confronted with a strong case against them. The cases going to trial tend either to be the coin flips or the cases in which a defendant is hoping to "beat the rec."

Popular Crime is an interesting book that will make you think -- it's just that sometimes that's after you've thrown your book (or your Kindle) halfway across the room.

A more efficient way to ration water use

To combat the lack of rainfall in Houston, Mayor Annise Parker has decided that it's the right time to ration water use. As of last week half the city can water their yards on Sunday and Thursday and the other half can water on Wednesday and Saturday.

But is that the best way to handle the situation? Rationing forces people to do things at times when they wouldn't ordinarily do them. It is an inefficient use of resources and will cost more money to try to enforce. After all, someone has to drive around and cite people.

It also treats all yards the same. Some yards are big, some are small. Some have elaborate landscaping and some have none. Some have automatic irrigation systems and some have hoses and sprinklers. Some have lots of grass and some have decks and pools. Some yards are shaded better than others.

A more efficient mode of rationing the use of water would be to raise the marginal cost of each additional gallon used. Determine what the average water usage for a house in Houston is during a typical (that is, when it actually rains) month and raise the price of each additional unit of water above that figure.

That way those who need additional water can get it and those who don't need it aren't affected. A homeowner could look at the cost of watering his yard and determine whether or not the benefit of watering is worth the extra cost.

Such a scheme wouldn't require sending folks around in city-owned cars to write citations to citizens trying to keep their yards from turning brown. Such a scheme would allow for the more efficient use of water during drought conditions.

Of course, since it makes sense, it'll never happen.

This old courthouse - Jackson County edition

This was the Jackson County Courthouse that was built in the Beaux-Arts style back in 1906. This elegant building burned down in the early 1950's and was replaced by this...

The current Courthouse looks like just about every other high school built in the 1950's across the Lone Star State. Terry Jeanson wasn't quite so kind when he compared it to an abandoned nursing home.

The clock on the north side by the main entrance is a nice touch.

Then there's the gazebo on the east side.

And what's not to love about a building with a tree growing inside?

The courthouse isn't much to look at - but the courthouse staff are friendly and at least it doesn't have a metal detector.

Virginia uses epilepsy drug to kill inmate

Lundbeck, a Danish pharmaceutical manufacturer, makes an epilepsy drug that has become the go-to drug for states looking to kill inmates. Pentobarbital is used to treat severe cases of epilepsy. Lately it has become the sedative of choice in the lethal cocktail used to kill.

Lundbeck has placed strict controls on the distribution of pentobarbital to prevent states from using it as part of their lethal injection protocols. Despite Lundbeck's objections to the misuse of its drug, Virginia officials (using pentobarbital acquired before the stricter controls were placed on it) gladly pumped it into the bloodstream of Jerry Jackson on Thursday night.

"We're in the business to improve people's lives, so the use of pentobarbital to end people's lives contradicts everything that we're in business to do," Matt Flesch, a US spokesman for Lundbeck, told the BBC

While proponents of state-sanctioned murder claim that pentobarbital works just as well as sodium thiopental which was discontinued by its manufacturer, there have been no studies to determine whether or not pentobarbital induces unconsciousness. Theoretically, the first drug causes the inmate to lose consciousness while the second drug paralyzes him. The third drug then stops the inmate's heart.

But if the first drug doesn't induce unconsciousness, the inmate remains alert throughout the entire procedure, enduring great pain as his muscles are paralyzed and his heart is stopped. Since the second drug causes paralysis, there is no way of knowing whether the inmate feels any pain as he cannot move his body nor cry out.

It's bad enough that doctors and nurses volunteer to violate the oaths they took to do no harm in the name of state-sanctioned murder -- but to turn around and use a drug that is manufactured to improve the lives of people suffering from epilepsy makes it so much worse.

If Lundbeck is successful in preventing state prisons from obtaining supplies of pentobarbital, the death machine in this country may (finally) be shut down for good. And how wonderfully ironic would it be that is was the free market that dictated the end of the death penalty?

I want it now!

Fresh on the heels of the redefining of addiction comes this study of how cocaine addicts value money and drugs.

Researchers conducted an experiment with 47 cocaine addicts to test their preferences when it comes to money or drugs. The expectation was that the addicts would choose cocaine, even a lesser amount, over money. That's not quite what happened.

Forty-seven cocaine addicts (who were all seeking treatment) were asked to guess the number of grams of cocaine worth $1,000. They were each then given a series of choices: cocaine now versus more cocaine later; money now versus more money later; cocaine now versus money later; or money now versus cocaine later. The initial amount offered for the immediate choice has half of the full value, and the delayed amount was always the full value. Preference was almost exclusively given to the money now option, according to the study’s lead researcher, Warren K. Bickel, a psychology professor at Virginia Tech, and director of the Advanced Recovery Research Center there.

It turns out that addicts prefer cash in hand over a stash of drugs - even if that cash is less than half the value of the cocaine offered in the future.

The addicts wanted their prize - and they wanted it now. It didn't matter to them whether they were paying a steep price for the privilege of having the cash or coke in their hands now. It would seem that this finding dovetails nicely with the new definition of addiction offered by the American Society for Addiction Medicine.

When we think rationally, we look at both the present value and future value of any given choice. If the future value is greater than the present value plus opportunity cost, we're more than happy to bide our time. If the equation works out the other way, carpe diem, baby.

With the addict, however, there is no consideration of the future. It's now! now! now! The addict has lost the ability to reason and to calculate which option offers the biggest reward. He is living in the present without the slightest conception of the future.

Does that give us a clue on how to fight addiction? With our jails and prisons being filled with more and more addicts, maybe it's about time we reconsider how we deal with addiction.

H/T Freakonomics

Another day...

... another fucked up mess outside the Harris County Criminal (In)justice Center. 

This was the scene yesterday at 9:03 am  outside the criminal courthouse. The line for the entrance on San Jacinto was just as long. And, once inside, it was time to deal with the long lines trying to get in the elevators.

Hey, McFly, we've got a problem.

Excuses, excuses

When an officer has a hunch someone might be just a bit tipsy behind the wheel and he can't find a legal basis for the stop he tends to fall back on his "community caretaking" function.

Oh, but not so fast.

Back in 2009, two Wiley (Texas) police officers on bike patrol observed a car park on a dead end street behind a fast food restaurant. They watched as the passenger side door opened up. The officers claimed they could hear the passenger and driver talking - but they couldn't make out what they were saying.

The officers decided they had seen enough. It was time to go in for the kill. As they approached, the passenger, Ms. Alford, and the driver switched places. When the officers arrived they saw that the engine was running and the car was in gear. Ms. Alford began to pull away when one of the officers asked her if she would mind answering a couple of questions.

You can guess the rest. The officer smelled a strong odor of an alcoholic beverage and Ms. Alford admitted to drinking "four big beers." Needless to say, the officers testified that Ms. Alford failed their coordination exercises. When asked the basis of the stop, the officers said they believed Ms. Alford was in need of help.

The trial court denied Ms. Alford's motion to suppress on the grounds there was no legal basis for the stop. Oh, that nebulous community caretaking function.

On appeal, in Alford v. State, No. 05-10-00922-CR (Tex.App.--Dallas 2011), the Dallas appeals court found that there was, indeed, no legal basis for the stop. The court pointed out that in order to determine whether the officer's belief that a person needed help, it would weigh four factors:

1. the nature and level of the person's distress;
2. the location of the person;
3. whether the person was alone or had access to help; and
4. to what extent the person was a danger to himself or herself.

In Alford, the court found that none of the factors indicated Ms. Alford needed any help from the officers. Ms. Alford did not appear to be in any distress. The car was parked behind a restaurant that was open. Ms. Alford was in the car with her sister. There was no indication that Ms. Alford was a danger to anyone at the time the officers decided to approach the car.

As a result, the court reversed Ms. Alford's conviction and sent the case back to Collin County to be disposed in a manner consistent with the court's rulings.

What happened to Ms. Alford was not an isolated incident. More and more motorists find themselves being detained without probable cause - and whenever the emperor finds himself naked before the mirror his fallback position is that he thought the motorist was in some sort of danger.

This time, it didn't work.

More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:

Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 

Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment

My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

Flipping-flopping the night away

Houston Mayor Annise Parker flipping and flopping about what to do with the red light cameras. 

First she cut them off. Then, faced with breach of contract, she turned them back on. Now, with an election approaching she's asking City Council to turn them off.

Classic politics, that is. If the city shuts them down and ends up writing a check to ATS, Mayor Parker can blame City Council. If the city leaves the cameras up and running, she can tell the voters that she wanted to turn them off but City Council wouldn't listen.

Come on, Mayor Parker, go down to the Medical Center and get a spine replacement. Try being a leader for once.

Smoke stop in Wharton

In my comings and goings along the lower Texas coast I realized there was at least one prominent barbecue joint I had missed up until now. I have since rectified that error by stopping in Wharton at Hinze's.

Although there are signs from miles away advertising Hinze's, unless you're paying attention it's very easy to blow right on past the low slung building just outside Wharton, Texas. If you do, shame on you.

As is my custom I had a two meat plate -- brisket and sausage. I had pinto beans, mac and cheese and mashed potatoes on the side. The mashed potatoes were made with onions and bacon and were heavenly. The mac and cheese was a bowlful of velveeta-y goodness. The only thing missing was the banana pudding.

The brisket was firm and moist and had a very clean smoky flavor. I knew right away it had been smoked over oak. The sausage was cut on the diagonal and while it was good and smoky, the texture left a little something to be desired.

There was nothing special about the atmosphere - linoleum floors, old wooden tables, styrofoam plates and stuffed heads on the wall - but the food was worth the stop.

A new way to look at addiction

One of the first tenets of the criminal (in)justice system we are taught in law school is that for there to be a crime there must be both an act and intent. We aren't supposed to punish people who have a bad thought without a corresponding bad act, nor are we to punish those who might commit a bad act without the intent to do so.

Malus actus + Mens rea = Crime

Most crimes listed in the penal codes in these United States require that the actor act with the intent to commit the bad act. He may act intentionally, knowingly or recklessly. In some cases the level of intent determines the severity of the crime, while in others, as long as their is intent, there's a crime.

Driving while intoxicated, however, has always had a special place in the penal code, for there is no criminal intent required. DWI is, for all intents and purposes, a strict liability crime. In other words, if you're driving and you're intoxicated, you've committed the crime, regardless of whether you intended to drive drunk or not.

Now comes word that addiction is a brain disorder and not a case in which someone behaves badly. The American Society for Addiction Medicine (which, in and of itself, may not be such a grand idea) has redefined  the term addiction.

Addiction is a primary, chronic disease of brain reward, motivation, memory and related circuitry. Addiction affects neurotransmission and interactions within reward structures of the brain, including the nucleus accumbens, anterior cingulate cortex, basal forebrain and amygdala, such that motivational hierarchies are altered and addictive behaviors, which may or may not include alcohol and other drug use, supplant healthy, self-care related behaviors. Addiction also affects neurotransmission and interactions between cortical and hippocampal circuits and brain reward structures, such that the memory of previous exposures to rewards (such as food, sex, alcohol and other drugs) leads to a biological and behavioral response to external cues, in turn triggering craving and/or engagement in addictive behaviors.

Addiction is more than a behavioral disorder. Features of addiction include aspects of a person’s behaviors, cognitions, emotions, and interactions with others, including a person’s ability to relate to members of their family, to members of their community, to their own psychological state, and to things that transcend their daily experience.

 And no, since I'm not a neurologist, I don't know what all of that means. What the ASAM seems to be saying is that addictive behavior is the result of chemical reactions in the brain. If this is indeed the case, should we re-evaluate the manner in which we handle drug and alcohol crimes? Punishing an addict does nothing to "cure" the problem. If a person has a brain disorder before entering prison or court-ordered supervision, that person will still have a brain disorder when they leave prison or are discharged from probation. We wouldn't be punishing folks for their bad acts, we'd be punishing them for something beyond their control.

"The behavioral problem is a result of brain dysfunction," agrees Dr. Nora Volkow, director of the National Institute on Drug Abuse.

Alcoholism is one of this country's worst addictions. It destroys bodies, lives and families. Yet try explaining to a gung ho young prosecutor that your client is an addict, not a criminal. See how far that gets you.

Now if the point of the criminal (in)justice system is to punish those who break the law and provide a disincentive for others to commit criminal acts, how does it serve a purpose to punish a person who has an addiction? If the person is acting due to a brain disorder, does the application of the criminal law benefit either that person or society? Is it just to punish a person who has a disease or a disorder?

Even if you're not biologically vulnerable to begin with, perhaps you try alcohol or drugs to cope with a stressful or painful environment, Volkow says. Whatever the reason, the brain's reward system can change as a chemical named dopamine conditions it to rituals and routines that are linked to getting something you've found pleasurable, whether it's a pack of cigarettes or a few drinks or even overeating. When someone's truly addicted, that warped system keeps them going back even after the brain gets so used to the high that it's no longer pleasurable.

As I've said on numerous occasions, our criminal (in)justice system is not designed to heal the sick. It's designed to punish and rehabilitate. As long as we treat medical conditions as legal problems, we are never going to give folks the help they really need. The system isn't working. We're forcing too many people into the criminal (in)justice system who don't need to be there. Branding an addict as a criminal for life does nothing to help him or her get over their addiction.

But it sure does help you get elected judge.