Confidence in the cure

Yesterday the Congress voted down the proposed 700 billion dollar "bailout" of Wall Street. There are so many questions about the proposed legislation. It is important to realize that this problem did not occur overnight. So many factors have contributed to this sorry state we find ourselves in today. Congress pressured banks to lend more money to home buyers that would not otherwise qualify for the loans. Banks were willing to lend the money because they bet that home values would continue to increase. Executives were paid unreasonable sums that no manager or CEO could be worth. Some CEO's could make more money in compensation by lunch than the worker who actually did the work made all year long. Even when CEO's did a bad job and were fired, they got millions in severance packages. In short GREED. Also add a hands off oversight by the government and you have a formula for trouble.

So what is the proposed cure? First there was the King Henry Paulson's plan. The plan totalled three pages in length. It proposed 700 billion dollars be made available to the Sec. of the Treasury to spend at his absolute discretion. I mean absolute discretion. The three pages were brief on details except that the decisions of the Sec. could not be reviewed or challenged even in a court of law! Oh, and he needs this authority yesterday or the sky will fall.

Congress amended the plan to include oversight. (sounds more constitutional) Also limits on executive compensation for companies that take the bailout. Taxpayer protection was added in the form of equity shares in the company that takes the bailout. So strings were attached to the bailout that one would expect. After all of the negotiations were cobbled together, the American people started to think about the fact that the government was about to increase the deficit and national debt in an amount larger than ever considered in history. Calls poured into congressional offices running 3 to 1 or higher against the bailout.

The Federal Budget for fiscal 2009 is proposed to be 2.9 trillion dollars with hundreds of billions of that figure exceeding revenues before we add the additional trillion dollars of bailouts for Fannie Mae and Freddie Mac, AIG, Wall Street Investment Banks and the proposed 700 billion for the credit markets. So before we spend that much money that we do not have consider how much confidence can we have in this cure.

Congress was asked to vote on the issue without the usual reading of what they were voting on and told the world will end if we don't do it now. That should cause one to pause. Any politician telling us to trust them we don't need to know what we are voting on should set off alarms. If the bailout passes will that be the cure? No one knows. How sure are we in the price tag of 700 billion dollars? According to Forbes Magazine quoting a Treasury official, "It's not based on any particular data point," a Treasury spokeswoman told Forbes.com Tuesday. "We just wanted to choose a really large number." (Read the whole story here) Unbelievable! Honestly is this the best we can do? As a friend of mine is fond of saying, if I did my job the way our leaders are doing their jobs, I would lose my law license.

Books and Blogs

I recently was asked to write about DWI in Texas for publication in a nationally distributed book for attorneys. After working on the project for some time, I discovered that my writing style had changed some since I last wrote a brief or article. It occurred to me that the change is the result of blogging.

Writing for a blog is different from more formal writing. You don't usually need cites or footnotes in blogging and you can't hyperlink in formal writing. Also blogging is usually done in more concise and sometimes pithy statements than formal writing. Formal writing requires much more organization of the thought process and development of the subject than blogging.

Perhaps the popularity of blogging is due to the fact that people tend to get to the point much faster. Make your point and move on. Blogging also reflects more the way we talk and communicate in everyday situations. I am not saying one is better than the other. Each has a place. Formal writing commands more respect because one generally assumes the author spent more time fact checking and organizing what he/she wanted to communicate. Formal writing has more of a permanent quality to it than blogging. However, reading blogs does not have the intimidation factor of sitting down to read a formal writing.

Ultimately both are about organizing thought and communicating ideas. As a trial lawyer, my job is to communicate ideas, facts and law with juries. Anything that helps me do that whether it be writing for a formal publication or blogging makes me a better criminal defense attorney.

Will a new President change anything?

With the Democratic Convention going on this week and the Republican Convention next week, the question occurs to me if a new President will change anything about criminal justice in Texas? My first thought is that it will likely not change a thing. Texas is, with the exception of Austin, the reddest of red states. In Tarrant County where I practice, Republicans hold almost every elected office from Justice of the Peace to Congress. One could say this area is conservative. So how will life change if Barack Obama were to be elected President and have a working majority in the Congress? Well, we will get a new U.S. attorney and any vacant Federal judge positions that come available would be filled with more "liberal" judges than a President Bush might appoint. It does not change much of anything at the state level.

The most likely area where a President Obama would have an impact would be the appointment of Justices to the U.S. Supreme Court. He could likely appoint as many as three Justices. However it is likely that the Justices he appoints would be replacements for the so-called "liberal" Justices already on the court. I do not foresee, absent a severe outbreak of influenza on the court, the balance of power changing much even if the Democrats take the White House.
As a criminal defense lawyer, I do not expect to see the likes of a Warren court rolling back government power or establishing new case law protecting the rights of a citizen accused of a crime. About the only bone thrown to us in years has been a resuscitation of the confrontation clause from the life support it was on prior to the Crawford case. I guess we could also throw in the exemption of juveniles, the mentally ill, and people who did not kill someone during the crime from the death penalty as victories.

So will a new President change anything about criminal justice in Texas or anywhere else? Probably not. Any change will be a "trickle down" effect. The political arena that most effects my job is at the state level. Every time the state legislature meets they continue to increase penalties, fines and mandate ever higher minimum amounts of time in prison so they can appear tough on crime. Meanwhile we continue to have one of the highest incarceration rates in the world. Are Americans really that much more dangerous than other nations? And Texas is one of the leaders in incarceration within the United States. Are Texans more dangerous than Californians, New Yorkers or Floridians? A new President is not going to change any of this, but it is a start.

But it wasn't mine...

"But it wasn't mine ..." is a very common response to being arrested for possession of a controlled substance. I hear this a lot. That is usually when I direct the client's attention to the name of the offense, "Possession of Controlled Substance" not "Owning or Ownership of Controlled Substance". We usually talk about how the pen I gave them to sign something does not belong to them but they are sure in possession of it at the moment. This hurdle is nothing in comparison to trying to explain how someone who is not in exclusive possession or control of a place where drugs are found can also be in "possession" of a controlled substance.

In Texas "possession" is defined by statute H&SC Section 481.002 (38) as: "Possession" means actual care, custody, control or management. Also possession is a voluntary act. So the State has to prove beyond a reasonable doubt that (1) the person exercised care, custody, control and management over the drugs and (2) that the person knew the substance in their possession was contraband. The problem arises frequently of how can the person be linked to the drugs. What facts in this situation tends to establish their knowledge. It is always a case by case determination.

The courts of Texas have found many different fact situations to establish the "affirmative link" between a person and the drugs. Ultimately they are all inferences not hard proof. Examples of such affirmative links are:

• Being the driver or owner of car where drugs were found.
• Having a large amount of cash.
• Being present at the time of the search.
• Attempting to escape or flee.
• Drugs found in close proximity to the arrested person.
• (My personal favorite) Accused made furtive gestures
• Conflicting statements by occupants of car.

Do some of these seem like straws to grasped rather than evidence? Yep, me too. So once I have cleared the hurdle of owner vs. possessor, then I get to try and explain how the above mentioned "affirmative links" somehow establish proof of possession when there is more than one person in the area where the drugs were found. In either case "But it wasn't mine..." is not a defense to possession of controlled substance in Texas. Unless of course you have the right jury.

Last to know, again

Once again I face a problem that occurs too often in criminal defense. Today I was running around trying to get an appointed client's bond reduced so he could get out of jail and return to work. After meeting with the client in jail, we discussed getting the bond reduced and the facts of his case. During our conversation, no mention was made of having any out-of-county prior felony convictions. We did discuss that he had no felonies looking at his criminal history for this county. So today as I am discussing the issue being set for a hearing, I am informed that he has just been indicted and is a habitual offender! That means at least two prior felony convictions at different times. This comes as news to me! Once again I am the last to know. Why do I say that? The judge knew, the prosecutor knew and most importantly the CLIENT KNEW.

In these situations I always wonder what the client expected to accomplish by not telling his attorney (the one person in the whole judicial system that is working on his side) the truth. Did he think we just would not find those out-of-county convictions? You know they write that kinda stuff down and everything! Especially in Texas. So here I am telling the judge that I think he has no priors when he hands me an indictment (still warm from the printer) showing the two prior felony convictions. Priceless. Everybody knew except me. As I walk away, egg still dripping from my face, I think of what else I have not been told. I also wonder if he goes to the doctor and tells him he feels fine but doesn't mention the sharp stabbing pain in his stomach and the bleeding he occasionally experiences. I bet not.