Presumed innocent?

Recently a Tarrant County Criminal District Judge was arrested on a charge of DWI in a nearby county. As you can imagine, this has created quite a stir. The Fort Worth Star Telegram covers every move in the case. Today they ran a story about the attorney for the judge moving to suppress blood tests and all statements made after the stop. For those of us who practice criminal defense in this area, this is normal practice to try and suppress illegally obtained evidence. None of this would cause me to write about this situation. After all, I practice in front of this judge and have absolutely nothing but praise for her legal abilities. What causes me to write are the comments after the article on the website.

I know those who comment on stories are not usually legal scholars. What is pathetic is the "rush to judgment" tone of the comments. Here are some examples of the frightening lack of understanding of our legal system:

Lock her up just like everyone else,why is it all people in government and law enforcement think they are above the law? Any one in these 2 choosen [sic] feilds [sic] should get double what ever the sentence is because of the obvious,they take an oath before the almighty,it absolutely sickens me everytime a situation like this arises.Why is she still a judge?Obviously her judgement isn't all that great

Too bad their is little justice in out justice system. This is just one more example. You get as much justice as you can pay for.

This is just a case of someone who knows the law inside and out using it so she can get out of trouble for something she knows she is guilty of

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What happened to presumed innocent until proven guilty beyond a reasonable doubt? None of these commenters know anything about the evidence. All they know is the allegation and the judge's status in Tarrant County. They have no knowledge of the blood test results or the way they were obtained. They do not know any of the conversation at the scene or anything else about the case. I suspect that this is a poor attempt to express their belief that no one is above the law or equal justice sentiment. However, even Judge Roy Bean gave people a trial before their hanging. One can only hope that if these commenters or their loved ones ever find themselves accused of a crime that their jury will be made up of people with the same mindset that they expressed. This is why we defense lawyers have to teach potential jurors civics and basic grade school understanding of the Constitution before each trial.

Fishing for Herring and the ever shrinking 4th Amendment

The U.S. Supreme continued its assault on the Fourth Amendment today with the release of HERRING v. UNITED STATES The court ruled that, just because the police wrongfully arrested someone, and they all agree the arrest was wrongful in this case, the exclusionary rule need not apply to the evidence seized after the wrongful arrest! As I recall, the exclusionary rule was created by the Supreme Court to deter police from wrongful conduct just so they could not get around that troublesome Fourth Amendment. "We have stated that this judicially created rule is “de-signed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra, 414 U. S. 338, 348 (1974). Well... in the case decided today the police arrested a man based on a warrant entered in a neighboring county database that was recalled by the court but never removed from the system. So there was no warrant for his arrest. So why can't this all be cured by the Good-Faith exception created in United States v. Leon, 468 U. S. 897 (1984)? Because the mistake here was the result of police negligence not the court. The sheriff department had not updated their records to reflect that there was not a warrant.

The Supreme Court majority apparently believed that this situation called for a new extension of the good faith exception to include that negligent errors by the police generally do not trigger the exclusionary rule. The Court made much of the "innocent" conduct of the police, however, does this new exception deter police from wrongful conduct to get at evidence or encourage? Rather than encourage professionalism and competence in law enforcement, the ruling today says do your job with negligence if need be because we the Supreme Court have your back. Better for the government to prevail in a single drug case than to protect citizens with a 4th Amendment that punishes the police for their own negligence. The whole thing smells fishy to me.

Where is a mongoose when you need one?

Recently the Fort Worth Police Department began a program that is known as COBRA. It stands for Covert Organized Bait Recovery and Apprehension. Apparently there are not enough real auto thefts in Tarrant County, so the Fort Worth Police Department is helping add to the number. According to the Court of Appeals of Texas, Fort Worth in Adams v. State 2008 WL 4052997, "The Fort Worth Police Department's Covert Organized Bait Recovery and Apprehension (COBRA) program deploys “bait” vehicles in areas of the City with a high rate of auto thefts. According to the testimony of Fort Worth Detective Ward Robinson, who was a part of the auto theft unit for six years, a bait car is any vehicle equipped by the City to catch persons who have a tendency to commit car thefts. The COBRA vehicles are equipped with a computer monitoring system that remotely controls a GPS system, door locks, and an engine kill switch that turns the vehicle off. In addition, the vehicle has monitoring equipment that covertly alerts police whenever the car has been opened, entered, or moved in any way. After the computer system is activated by a person who opens and enters the vehicle, on-board recording devices are activated to visually and audibly record what takes place in the vehicle." The court found in a matter of first impression that the program did not violate law enforcement's duty to prevent and suppress crime under article 2.13 of the Texas Code of Criminal Procedure, nor does it violate public policy and it does not constitute entrapment.

Auto theft cases do not have a high rate of successful arrests because they tend to be crimes of opportunity and it is hard to catch someone in the act of auto theft. There are a number of reasons. The person who steals a car usually does it on the spur of the moment so it is hard to anticipate. The crime usually occurs in dark places or late at night. It only takes seconds for an experienced theif to get into and steal a car. There is usually a delay in the theft occuring and detection of the theft by the owner which gives someone time to get away and dispose of the car. So what is the answer to this problem? Increase your sucessful arrest numbers by setting up a controlled theft that you can video and catch the theif in the car. The problem I see is the slippery slope. Where do we now draw the line? According to the Court of Appeals somewhere beyond COBRA. Can the State set up a bar serve you drinks, give you the keys to the car afterwards and then arrest you as you get behind the wheel? I am just asking, where is a mongoose when you need one?