Not Guilty

A nod is as good as a wink to a blind horse.

2010-04-08T14:55:00.004-05:00

Recently the Court of Appeals in San Antonio had to determine whether a head nod in response to a detective's question was admissible in the trial. The case of Lopez v. State involved a woman charged with murdering her husband. Lopez contends that "the trial court erred by refusing to suppress evidence that she nodded her head affirmatively after Detective Davila stated, "you shot him, right?" Lopez claims the head nod occurred while she was in custody and did not comply with the recording requirements of article 38.22, section 3, of the Code of Criminal Procedure."

Texas has a statute in the Code of Criminal Procedure that states:

Art. 38.22. WHEN STATEMENTS MAY BE USED.
Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;
(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
(b) Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant's conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.
(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.
(d) If the accused is a deaf person, the accused's statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.
(e) The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, except that:
(1) only voices that are material are identified; and
(2) the accused was given the warning in Subsection (a) of Section 2 above or its fully effective equivalent.

So the head nod would only be admissible if the accused was not in custody. The court said that despite Lopez being in a sheriff's office being interrogated by detectives and having been read her Miranda rights before the questions began, she was not in custody. Usually Miranda is only read to a suspect when they are about to be questioned formally and they are in custody because otherwise Miranda is not necessary. So here is a situation where the state needs the defendant not to be in custody before the evidence is admissible. Here was the courts reasoning:

If Lopez was not in custody, then evidence of her affirmative head nod was admissible. The trial court did not make an explicit finding that Lopez was not in custody at the time of the affirmative head nod; however, the record supports such an implicit finding. Both Sergeant Molina and Detective Davila testified the affirmative head nof was in response to the question asked by Detective Davila. Although the question took place after Lopez was read her Miranda rights, both deputies testified Lopez was still free to leave because her status did not change until after she nodded her head, admitting she shot her husband. The court found the deputies’ testimony credible, and Lopez admitted she voluntarily went to the sheriff’s office. We defer to the trial court on the credibility and demeanor of the witnesses, and hold the evidence supports the trial court’s implicit determination that Lopez was not in custody when she nodded her head. Even though Lopez testified she did not feel free to leave once the Miranda rights were administered, the trial court apparently did not credit this testimony in the face of the deputies’ testimony concerning the circumstances surrounding the statement. The trial court did not abuse its discretion in admitting testimony of the affirmative head nod.

So one would do well to remember that in Texas when it comes to a criminal conviction, a nod is as good as a wink to a blind horse or a detective.
S

An arrest by any other name ...

2010-03-23T15:32:00.006-05:00

What do you call it when a police officer stops your car with emergency lights flashing, draws his weapon, orders you out of the car, makes you lie down on the ground, face down, legs spread apart, puts handcuffs on you and places you in the back of a patrol car? Anyone? If you said "arrested" you would be wrong in Texas! That is a mere investigatory detention. Yep. How could you possibly believe that you were actually under arrest when all that happens to you? So says the Court of Appeals for the Seventh District of Texas at Amarillo in a recent decision Martinez v. State. This does beg the question, when does the above described fact situation become an arrest? Well, according to the court "it depends". One thing is certain. You the person in handcuffs do not get a vote in the matter. The court said in the opinion, "The standard for distinguishing between an arrest and investigatory detention is not always clear because the distinction between these seizures rests on a fact-specific inquiry rather than clearly delineated criteria." The court further clarified the standards, "In evaluating whether police conduct during an investigatory detention is reasonable, common sense and ordinary human experience govern over rigid criteria." So who determines since it is "not always clear", "fact-specific", "common sense", using "ordinary human experience"? The police officer.

So why does it matter whether it is an "arrest" or an "investigatory detention"? If you are under arrest, the police officer had to have either seen a crime committed by you or have probable cause to make an arrest. Once arrested a lot of rights kick in at that point. If you are stopped for an investigatory detention, the police officer only has to have a reasonable suspicion that you did something wrong and you don't have as many rights at that point. So since your constitutional rights are not always clear to the courts, the best bet is to treat a stop by the police as an arrest. Because an arrest by any other name, would feel the same to you.

Guilt by association.

2010-03-09T16:00:00.003-06:00

The people at Keep America Safe a Washington advocacy group have produced a web commercial claiming that lawyers who represented detainees at Gitmo, who were later hired by the Justice Department, are the "Al Qaeda 7". This is so offensively stupid that it is hard to know where to begin.

First, our Constitution guarantees people who are alleged by the government to have committed a crime the assistance of a lawyer. It is called the Sixth Amendment you might look it up! This is not some liberal program made up so that criminals can run free. This goes back to the adoption of the Bill of Rights. I assume the folks at Keep America Safe still support parts of the Bill of Rights.

Second, because a lawyer represents a person does not mean the lawyer adopts that person's views! John Adams represented British soldiers who shot American patriots at the Boston Massacre. It did not make him a loyalist, it made him a lawyer. (And a damn good one since he won the case in Boston!) I have represented people who did terrible things and I have prosecuted people who did terrible things without adopting the views of either side. My job as a lawyer is not to cheer lead for a client but to protect them and make sure the government attorney does his/her job under the law.

To label attorneys who represent an unpopular person as somehow suspicious is to attack the very heart of the American criminal justice system. Attorneys are bound by ethical rules and an oath to the Constitution. Calling American lawyers the "Al Qaeda 7" who represented detainees is the same as calling a lawyer representing someone charged with rape a "rapist". It is easy to call people names to inflame prejudice. However if the "brown shirts" (see how easy that was) at Keep America Safe are ever charged by the government with a crime, I am sure they will not want a criminal defense attorney because we would not want the guilt by association. Actually, we would represent them but surely would not adopt their views.

Milk and Miranda

2010-03-03T14:49:00.002-06:00

So what does a gallon of milk and Miranda rights have in common? According to the US Supreme Court, a shelf life. That's right, invoking your Miranda right to speak to your attorney when questioned by the police is only good for 14 days. This past week the US Supreme Court in Maryland v. Shatzer ruled that if someone invokes their Miranda rights to speak to an attorney while in custody and is later released, the police must wait 14 days to try and speak with the defendant again. In this case the defendant Mr. Shatzer was originally questioned by the police while in custody and invoked his Miranda right not to speak with the police and asked for his lawyer. Later Mr. Shatzer was released from custody for more than two weeks. Another detective later attempted to speak with Shatzer who spoke to the detective and made inculpatory statements. The question presented to the Supreme Court was after a defendant invokes his Miranda rights how long does that last? Is it to eternity or 1 second.? In an opinion by Justice Scalia, who hates the Miranda decision, the court concluded it lasts for 14 days. Why 14 days? Why not? In Scalia's opinion Miranda is a made up right so why not make up arbitrary dates for the made up right.

Since Miranda was decided in 1966, it has become a staple of the criminal justice system and cop shows on TV. Most everyone who has ever watched a full episode of Law and Order (any unit) can recite their Miranda rights. From 1966 to 2010 we somehow functioned without having a shelf life for your constitutional right not to speak to a police officer and request an attorney. Now we need a time limit? When the majority was pressed by other Justices on the arbitrary time of 14 days, the majority argued for the need for a bright line for law enforcement. They used the legal reasoning and logic of "it seems to us that period is 14 days." So what "seems" to the Justices of the Supreme Court is all the reason we need or will get.

This begs the question of what other constitutional rights do we have that are subject to a "seems to" test? First Amendment? Fourteenth Amendment? I hope the Fifth Amendment and Sixth Amendment are the only two that have a shelf life like milk.

Yellow dogs and umpires

2010-03-01T11:23:00.003-06:00

I live in one of the most conservative areas of one of the most conservative states in the country. I also live in one of the 39 states in America that elects at least some of their judges. Tomorrow is the primary for the Republicans and Democrats. There are many judicial elections on the ballot for statewide judges and local judges. However, unless you vote in the Republican primary tomorrow in Tarrant County, Texas you will have no part in selecting judges for civil, family and criminal courts. This reminds me of my younger days growing up in Alabama where unless you were a Democrat you need not even apply for elected office. George Wallace ran the state and the saying was people would "vote for a yellow dog" if it was on the Democratic ticket. That has all changed now and Alabama is one of the most Republican states top to bottom. People who used to be Democrats switched parties when the public opinion changed and are now ardent Republicans. Really? Did their political philosophy truly change or are they just being, at worst opportunist or at best realistic. The point is why should a supposed fair and impartial judge be required to run as a partisan?

In criminal court races we are treated to campaigns that proclaim that the candidate is "conservative", "tough", "a prosecutor" or where candidates have their picture made for campaign material in front of police officers in uniform. What message is this designed to give? Imagine a family court judge who campaigned that he was "father oriented" had the support of father's rights organizations and had his picture made in front of only fathers. Would a woman think she was getting a fair and impartial judge? It ultimately leads to less faith in our judicial system. No one wants an umpire who supports one team over the other. Judges are the legal system's umpires. How about just calling them as you see them.

Former Supreme Court Justice Sandra Day O'Connor has begun an effort to change judicial elections and remove the partisan political party affiliation in judicial selection. The theory of electing judges is to make them accountable to the people. Why not adopt a system where the governor selects a judicial selection commission that chooses the judge from a list of qualified candidates and then the people vote "yes" or "no" to the question of should this judge be retained for another term? This is the system used in Arizona and Colorado to name two states. It is also interesting that no other country in the world elects their judges. That does not mean that we are wrong but when no one joins your cause perhaps there is a reason.

So go vote tomorrow even if you must do so in a "yellow dog" one party race.

You can't just mail it in.

2010-02-03T15:12:00.008-06:00

Last week the US Supreme Court issued a very important, although brief, opinion. It was the case of Briscoe v. Virginia, __U.S. __ (No. 07-11191, 1/25/10). Last year the Supreme Court ruled in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009) that the all too common practice of just submitting lab reports into evidence with no testimony from the analyst was a violation of the Confrontation Clause of the U.S. Constitution. For the non-attorney readers the confrontation clause is part of the 6th Amendment to the United States Constitution that provides "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." In all criminal prosecutions the accused gets to look his accusers in the eye and have his attorney cross examine them while under oath. Last year the Supreme Court ruled in Melendez-Diaz that a lab report is testimonial and therefore the analyst should be subject to cross examination about their work and conclusions. The reason Briscoe is important is because after Melendez-Diaz was issued last, year the usual suspects of Chicken Littles began their "the sky is falling" routine and called for the Supreme Court to revisit the issue. Well they have. Same result.

The message to the government from the Supreme Court is that you can't just mail it in! You actually have to go to the trouble of having a living witness available for cross examination because it just does not work out trying to cross examine a piece of paper. Turns out the confrontation clause of the 6th is alive and well after all.

New Year, New Look.

2010-01-07T15:07:00.002-06:00

Aside from adjusting to writing 2010 or 10 on forms, letters and checks, the new decade brings a new look to Not Guilty. I like the new look because it is easy to read and clean. Many bloggers try to out do each other by adding more and more eye candy on their blogs. As with many things we are likely to learn in this time of economic hardship, less is more. People read blogs or web sites for their content not their look. With that in mind my goal is to not let the look get in the way of the content.

I hope this decade will bring us less of a lot of things. War, sickness, job losses, foreclosures, banks that are too big to fail and of course radical fundamentalist Lutheranism! Just kidding on the last one. Most of all I hope we all have a safe and happy new year. Next post --- back to Texas criminal law.

Why blog?

2009-12-28T10:55:00.003-06:00

Many lawyers ask me and other attorneys who blog much more regularly, why blog? What is the point? My answer is not compelling but it has changed. When I first started my motives were mixed. I wanted to gripe and write about things in the law that interest me or issues that I have developed strong opinions. I must say that I also thought that the ability to generate business might exist as well. The first thing I found out was that there are two types of law blogs. There are professorial type blogs on the law and there are the practical type law blogs. The former written by academics and the later by practitioners.

The next thing I noticed was that lawyers who are experienced at blogging were very helpful in making suggestions or criticisms that make the blog better. In my case, I was quickly advised that blogging for business or advertisment purposes is a waste of time and more than a little boring to other lawyers and the general public that read blogs. Other advice was simple writing suggestions. Keep your posts short, to the point and interesting. If all you do is gripe and rant about everything, you will not acquire a loyal readership.

Finally my answer to the question of "why blog?" is because it provides me with an opportunity to express my thoughts on my chosen profession and area of law. I will almost certainly have different opinions than many of my readers but that makes things interesting for all of us.

Defending the Undefendable

2009-11-13T14:33:00.004-06:00

Every criminal defense attorney gets the question that Wolf Blitzer of CNN asked John Galligan the defense attorney for Major Nidal Hasan. How can you represent that guy? The short answer is because we took an oath to support the Constitution of the United States. Under the Sixth Amendment to the Constitution, everyone who is charged by the government with a crime is guaranteed the assistance of an attorney. Specifically it says, "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." The first thing you should notice is that the Constitution says "in all criminal prosecutions..." We don't make exceptions for the really guilty or the terrible or even the one who is hate filled. Major Nidal Hasan is accused by the state of 13 counts of murder. Under the Sixth Amendment as a U.S. citizen he gets all of the rights guaranteed to any citizen. The public should not mistake a criminal defense attorney's representation of a particular criminal defendant with an endorsement of any actions he may have taken. The lawyer does not by representing the client thereby agree with the client's motives or actions.

When you stop and consider how difficult it would be to represent someone accused of such an awful crime, the easiest thing to do would be to decline to represent such a defendant. You have to deal with arguments like that made by Blitzer. "I'm sure he will get a much fairer hearing than those 13 Americans who were brutally gunned down the other day. I'm sure he will get all of the rights that are applied by the military code of justice." Yes he will. Denying him the rights guaranteed to U.S. citizens under the Constitution would not change anything to favor the 13 Americans tragically killed. However, it would change things for all of the rest of us. The majority of the 13 killed were active duty military who also took an oath to defend the Constitution. They died defending the very document that gives Major Hasan the rights he now "enjoys". This is where the rubber meets the road on whether we believe what we say about defending the Constitution. How many other brave Americans have died to give you, me, Major Hasan and all Americans the rights guaranteed by the Constitution? So Wolf it would be a disservice to all of our veterans to give Major Hasan anything less than his full Constitutional rights.

A lot of dead people

2009-09-01T14:08:00.004-05:00

It may seem like everyone in the practical legal blogisphere is talking about this, eg. Simple Justice , Grits for Breakfast, The Matlock Blog , but here is my view. It was bound to happen that one day Texas would execute a man for a crime he did not commit. To be honest that has almost certainly happened many times in the past. However, now it can be established that Texas has executed a man who not only did not commit the crime, but a man for a crime that did not occur!

Cameron Todd Willingham was executed in 2004 for the death of his two twin one year old girls and his two year old daughter. They all died in a house fire on December 23, 1991. Willingham received burns trying to return to the house for his children. (The prosecutor said they were "superficial") A police Chaplin said that Willingham had to be handcuffed and restrained to prevent him returning into the house for his children. The reason this execution has returned to the public's attention is because of a recent report that became known through recent articles in the New York Times and New Yorker Magazine. The article in the New York Times refers to a recent report and quotes one of the authors,

a noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence. The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

So most people would look at this incident and recoil from the injustice. The reason I have changed my view on the death penalty is because of the inability to remedy injustice in these cases. Once a man is put to death by the state, there is no chance to "do over" if science or other evidence comes to light. The only justification for the death penalty is retribution for the victim's family. To keep the victim's family from "taking the law into their own hands." But what message does that send? Since murder is so horrible, we will kill the murderer for you. Of course if the victim's family did kill the murderer we might only call that manslaughter. What do you call it when the state murders someone under the color of law? And are we the taxpayers now complicit in this murder? The end result is the same. There are a lot of dead people in this case and none were guilty of a crime.

The Unrepentant Judge

2009-08-24T13:01:00.003-05:00

This past week the State of Texas experienced a rare event. The Chief Justice of the Texas Court of Criminal Appeals was on trial before the Texas Commission on Judicial Conduct. Judge Sharon Keller is the highest ranking judge ever to be tried by the Commission on Judicial Conduct. Judge Keller was charged with five different violations relating to her conduct of closing the clerk's office of the court exactly at 5:00 pm on the day of the execution of Michael Wayne Richard. The attorneys representing the defendant had called the court to notify that they needed to file a last-minute stay of execution due to action by the United States Supreme Court that very day and would not make the 5:00 pm closing. The attorneys asked the judge to allow them to file the pleadings after 5:00 pm and Judge Keller said, "no."

The hearing has provided an interesting glimpse into the judge's reasoning. Judge Keller testified about the Texas Defender Service, "they did have all day." (It should be noted that the pleadings were ready to be filed by 5:45 pm to 5:56 pm according to witnesses at the hearing. Also the Texas Defender Service had computer problems that hampered their ability to meet the closing deadline.) Judge Keller testified about last-minute execution day pleadings in general, that they “tend to be voluminous and meritless.” Then in response to questions about her actions of that day she said, that she was “doing exactly what [she] was supposed to do.” When given the ability to seem less harsh, the judge rejected that chance. She was asked at the hearing if whether, knowing what she knew then, and based on what the attorneys for the defendant said and what they asked, would she do anything different. Judge Keller responded that she would "not do anything different." When questioned about whether she had anything to say to her critics. The judge testified: “I believe they were misled by information that was deliberately provided to them largely by TDS (Texas Defender Service),” and “we wouldn’t be here today if it hadn’t happened.” The judge remains unrepentant for any of her actions. Now the judge who presided at the trial must make findings and present those to the state’s judicial conduct commission, which will have the choice to dismiss the charges, issue a censure or recommend removal from the bench.

On the same day that Judge Keller refused to keep the clerk's office open for 45 to 56 minutes longer, the United States Supreme Court granted review of a Kentucky case that challenged whether the lethal injection procedure in Kentucky violated the 8th Amendment’s prohibition against cruel and unusual punishment. Starting that day, the U. S. Supreme Court stayed all executions using lethal injection during the time they were deciding the case. From that day until the Supreme Court’s final decision on the matter seven months later, only one man on death row was executed in the United States of America. That man was Texas inmate, Michael Wayne Richard who was executed at 8:23 pm.

Thank you so much Mr. President.

2009-07-29T17:03:00.002-05:00

President Obama recently inserted himself directly into a disorderly conduct misdemeanor arrest in Massachusettes. I can't remember a President dealing with a misdemeanor before unless you include President Carter and his brother Billy. You may wonder how this would affect a criminal defense lawyer in Fort Worth, Texas. Well...it is the way the President offered to mediate this problem. He gets involved, case dismissed, joint statement of perhaps we lost our cool and then beers on the President at the White House. Now instead of the magical "12.44" being the holy grail of criminal defendants in Texas, it is the "Obama option" that everyone wants.

Now I have to explain to clients why they should not expect the "Obama option" in their case. First you are not a Harvard professor, nationally prominent scholar, friend of the President and we can stop there. However, now before my client wants me to seek the eluisive magical "12.44" I must first offer the "Obama option" of case dismissed, joint statement of perhaps we lost our cool and then beers on the President at the White House. Thus far I have not seen a lot of success with the Obama Option in Tarrant County, Texas. So thank you so much Mr. President now we have a new starting negotiation position.

How many crimes do we need?

2009-07-21T16:25:00.002-05:00

I was at a statewide conference of criminal defense attorneys recently when I heard a statistic that caused me to look up from my coffee and continental breakfast. The speaker said that in Texas we have over 2,300 ways to commit a felony on the books. These crimes are not all contained in the Texas Penal Code where one would look for crimes. Instead they are strewn in every corner of the Texas statutes. They are in the Business Code, Transportation Code, Government Code, Agriculture Code, Family Code, Health & Safety Code just to name a few. So you would think with 2,300 ways that Texans can commit felonies, the legislature would think that we probably have enough crimes on the books. We do not seem to have excess room at state prisons and severe under crowding problems. Well you would be wrong. Our legislature just recently completed it's once every two year session and guess what? We have new felonies to add to the books.

Don't get me wrong, I appreciate the government working hard to create business for us criminal defense lawyers. However, we are not hurting for clients if they did not add anymore crimes to the books. Among the new ways you can commit a felony in Texas are: Sneaking a cell phone into a correctional facility; Online Harassment; Theft of tubing, rods or water gate stems; Assault by Strangulation; Theft of a Military Grave Marker; Theft of cattle, horses, exotic livestock or fowl; Credit/Debit Card Abuse if the victim is elderly. I am not saying that I am in favor of any of these things being legal, however, some of these already exist as crimes in Texas but were not felonies. All I am asking is how many crimes do we need?

Governor Perry's idea of a hazard to public safety.

2009-07-07T13:48:00.003-05:00

Sorry for the delay between posts. You can insert all the usual reasons i.e. busy, vacations, lazy or held hostage etc. Anyway, I am back and I have a question for you. What does Gov. Rick Perry consider a "hazard to public safety"? Answer: Wrongfully arrested citizens having the records of their wrongful arrest removed from their record. Yep, that is not a misprint or exaggeration.

The Texas Legislature passed, without a single vote in opposition, a bill that would have allowed Texas citizens who were arrested and their case dismissed without conviction or any kind of probation, to have the record of their arrest expunged immediately. Keep in mind, a prosecutor would have looked at the case and said that it should be dismissed. No prosecution, no hearing, no getting off on "some technicality" we lawyers call the Constitution. This could be arrested wrong person, prosecuting witness lied and recanted their story etc. So both sides agree that the case should be dismissed. So with that said, how is it that being forced to carry around on your record, usually for two years at least, with all the explanations that will have to be made every time you apply for a job or credit, making the public of Texas more safe. Safe from what?

The Governor must know something all of the rest of us don't so I will let him try to explain. Here is what he said,

TO ALL TO WHOM THESE PRESENTS SHALL COME:
Pursuant to Article IV, Section 14, of the Texas Constitution, I, Rick Perry, Governor of Texas, do hereby disapprove of and veto House Bill No. 3481 of the 81st Texas Legislature, Regular Session, due to the following objections:
House Bill No.. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses. Current law provides that an individual is entitled to copies of their expunged records after the statute of limitations has expired. A prosecutor may contest the expunction by proving reasonable cause that the person will be charged, leading the prosecutor to reveal details of the investigation prior to its completion. Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely. Allowing a person to know the identities of witnesses or the nature of their evidence unnecessarily endangers both law enforcement and citizen witnesses prior to an indictment for murder, organized crime, sexual assaults and other serious offenses. House Bill No. 3481 precipitates an untenable injustice to victims and a hazard to public safety.
IN TESTIMONY WHEREOF, I have signed my name officially and caused the Seal of the State to be affixed hereto at Austin, this the 19th day of June, 2009.
RICK PERRY
Governor of Texas

Perhaps the Governor is not aware that Tampering with a State witness is already a felony and Organized Crime is likewise a crime that covers the Governor's concern. So if you are wrongfully arrested and all sides agree to dismiss the case, remember you are too great a threat to the citizens of Texas to have that mistake removed from your record. For all of us you must carry that around with you until the statute of limitations expires on your wrongful arrest. As you deal with the problems that arise, take heart that you are making us all safer according to your Governor. I understand he is running again.

The "but I didn't have anything to drink" DWI

2009-05-21T14:42:00.003-05:00

Many people in Texas are surprised to learn that you can be arrested for DWI when you have had no alcohol to drink. Yep, turns out the "I" in DWI, which stands for intoxicated, is not limited to alcohol. Most DWI cases do occur based on consumption of alcoholic beverages, but not all. In Texas the statute defines "intoxicated" as:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

So if you lose the normal use of your mental or physical faculties from your prescription medicine, allergy medicine or even too much of Mom's apple pie, and you operate a motor vehicle in a public place, you could be arrested for DWI.

The usual way the State tries to prove it's case in a non-alcohol case is either by a blood test or an admission by the arrested person. If you tell the police what you took earlier, don't be surprised when you have your own words used to prosecute you for DWI. As always remember you DO HAVE THE RIGHT TO REMAIN SILENT! You can also count on the prosecutor at least once in the negotiations or trial to refer you to the warnings on the prescription not to operate machinery or drive a motor vehicle. The defense of "but I didn't have anything to drink" does not always prevent a DWI conviction.

Changing of the guard.

2009-04-24T14:19:00.002-05:00

Tarrant County District Attorney Tim Curry passed away early this morning after a fight with lung cancer. He was first elected Tarrant County District Attorney in 1972. That made him the longest serving District Attorney in Texas according to the Star Telegram article this morning. Mr. Curry was not active in trying cases since about 1977 and the Cullen Davis murder trial. As a result, I never had the pleasure of meeting the District Attorney. He was in charge of a very large staff and for all practical purposes the largest law firm in Tarrant County. I do know that the lawyers that worked for Mr. Curry thought highly of him and I think highly of many of them. My condolences to the family and the Tarrant County District Attorney's Office.

After 36 years of one man being in charge of the Tarrant County DA Office, there is clearly going to be a changing of the guard. Apparently Criminal Division Chief Alan Levy was appointed by Curry as his first assistant to conduct the affairs of the office until a successor qualifies. The political posturing will begin to receive an appointment by the governor to serve until the next election. Democrats need not apply. The day to day operation of the office will continue much the same. However, we in the Tarrant County Criminal Defense Bar will likely face new "office policies" to have to explain to our clients. The changing of the guard at the DA's office will be interesting to watch from outside.

Finally, Good News Out of Washington!

2009-04-22T16:01:00.002-05:00

Yesterday the U.S. Supreme Court issued the opinion in Arizona v. Gant. For the first time in a long time the supremes put a limit on the government power to skip around the 4th Amendment requirement of a search warrant. Once upon a time, the 4th Amendment meant that the general rule was that to search a person or their property the government needed a search warrant. Only certain narrow exceptions were allowed. Over the years the exceptions grew to the point that the general requirement for a search warrant was a joke to law enforcement. Examples of exceptions included, hot pursuit, plain view, plain touch, probable cause + exigent circumstances, consent, apparent consent, third party consent, good faith, incident to arrest, open fields, abandoned property, independent source, community caretaking, protective searches, inventory searches, and my personal favorite...inevitable discovery!

In a 5-4 opinion with strange bedfellows in the majority and minority, the court limited the search of vehicles incident to arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. The facts were that Gant was arrested for the horrible offense of driving on a suspended license. He was handcuffed and locked in the rear of the patrol car before officers started searching his car. They found cocaine in a jacket pocket in the car. Clearly Gant had no ability to access the car while handcuffed and locked in the patrol car. Also the police could have towed the car and searched it under an inventory policy or other valid exceptions. However, thinking "we don't need no stinking warrant" they searched the car for their safety or evidentiary purposes. Turns out the 4th Amendment was only sleeping and not dead.

Justice Stevens wrote the opinion in which Souter, Ginsburg (now your thinking the usual liberal Justices ... wait for it) Scalia, and Thomas made up the majority. Justice Alito filed a dissenting opinion in which Roberts and Kennedy joined with Breyer joining in a part of the dissent. Scalia's concurring opinion, as always, is good for some zingers. For people who believe in limitations on government authority like the 4th Amendment, it was finally good news out of Washington.

I know what I saw.

2009-03-09T15:26:00.004-05:00

Last night on 60 Minutes there was a great report on the reliability of eyewitness testimony. The report featured a woman who was raped by a man of a different race. She said that she actually studied his face during the rape trying to remember details. She was presented with a photo lineup and after 5 minutes picked one of the men and said "that is the man that raped me." Later in court, the woman positively identified the man as the person who raped her. The jury took about 40 minutes to convict.

The Defendant went through the appeal process to no avail. Later he is serving time with a man who confessed to the rape to another inmate. The Defendant went back to court for a new trial. The Defendant was again convicted on the eyewitness testimony of the victim who was certain. The defense even called the inmate who confessed to the rape and the eyewitness could not identify him. After serving ten years in prison, the Defendant was exonerated by DNA that confirmed he did not rape the woman and the person who did was not able to be identified by the eyewitness even with him sitting in the same courtroom with her.

This should be a story that changes the eyewitness identification procedure. It did in North Carolina where this happened. However, in Texas people are routinely identified by photo spreads. The answer seems to me to be at least limiting instructions on eyewitness testimony and as DNA becomes more affordable require it in cases where there is any sample to compare. The Innocence Project has been responsible for hundreds of DNA exonerations nationwide. This is something that defense attorneys, prosecutors, judges and law enforcement should agree to present a united front. None of us are advanced by convicting the WRONG PERSON.

Deu 17:6 On the evidence of two witnesses or of three witnesses the one who is to die shall be put to death; a person shall not be put to death on the evidence of one witness.

Presumed innocent?

2009-01-22T11:43:00.002-06:00

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

.

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

2009-01-14T14:11:00.006-06:00

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?

2009-01-05T15:56:00.002-06:00

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?

Odds and ends

2008-12-30T15:46:00.009-06:00

It occurs to me that writing a blog can be difficult if your desire is to inform and entertain. If it is just a public venting of every thought that occurs to you, I am not the person to write that way. I write when something interests me and is law related. When I do not write you can assume that either I am too busy to stop and write or have nothing I consider worth saying. Both are true as it relates to why I have not posted since November 10th.

Texas has made the news recently for two reasons. One good and one bad. First the good. Our state has a reputation (well deserved) as the death penalty state. Texas usually executes more people than most all of the other states combined in a given year. However, MSNBC reports that, executions in the state of Texas, reached a historic low in 2008, with only nine individuals sentenced to die by juries this year. An annual review of death penalty cases released in early December by the Texas Coalition to Abolish the Death Penalty also noted that: six Texas inmates' executions were stopped at the last minute by reprieves, and seven death-row inmates had their sentences commuted to life in prison Even so, 18 executions were held in Texas in 2008 (down from 26 in 2007) after May, delayed until then by the nationwide moratorium on executions as the U.S. Supreme Court was considering the constitutionality of lethal injection as an execution method. Texas uses lethal injection for executions. The last scheduled 2008 execution in Texas took place on Nov. 20. At least ten Texas inmates are schedule to be executed next year; across the state, more than 350 people are on death row (118 of whom were sentenced to death in Harris County)

Now the bad. According to a story from the Associated Press published in the Fort Worth Star Telegram, Texas is the deadliest state for police officers on duty. Texas leads the nation in 2008 with 14 police officers killed in the line of duty. Fortunately nationwide the 2008 officer fatalities were down from 2007 when there was a spike in law enforcement deaths according to the National Law Enforcement Officers Memorial Fund and another group, Concerns of Police Survivors.

Let us all hope that 2009 will see less death for law enforcement and all citizens.

Is there magic in the blue tie?

2008-11-10T15:41:00.011-06:00

What is up with all of the blue ties? Everywhere you look politicians are wearing the blue tie. The Democratic and Republican conventions were covered up in blue ties. At one point I counted four straight speakers on one night of the Republican convention that were wearing blue ties of almost the same shade. Knowing how deep and well thought out most political decisions are, I suspect that somewhere someone did a study on what color ties convey confidence, strength, calm etc. I bet blue won.

You might be asking what this has to do with criminal defense. Well if it works for politicians perhaps it will work for criminal defense attorneys and their clients. To all the criminal defense attorneys who read this blog, try wearing the blue tie and put your client in a blue tie if possible. Let me know what the results are from trial. Never let the prosecutor be the only one wearing a blue tie. Of course nothing works everytime.

Is this the way we should select our judiciary?

2008-10-31T14:43:00.004-05:00

It is almost election day here in Texas. Early voting is already underway. I voted early to avoid the long lines and chaos of election day. As I was doing my civic duty, it occurred to me how many of the races were judicial races. I happen to know or have at least heard others speak of the judges in the various races. Therefore when I cast my ballot it has some basis other than the name of the candidate or the political party. However, the vast majority of voters must be voting for judges that they know nothing about other than their name and political party.

This brings up the point I am pondering. What is the benefit of electing judges or even having a political party affiliation for judges? Does the judge in a divorce or criminal case need a position on the war in Iraq? Do you care what the judge might think about the bailout of Wall Street when he/she is presiding in your DWI trial? If that does not matter, then why have partisan judicial elections at all.

Most people who defend electing our judges do so out of a democratic sense of making the judge responsible to the people. Yet rarely do incumbent judges draw opposition so then the argument breaks down. Only when someone runs against an incumbent do you get to make the judge responsible to the people.

I do not think we need partisan elections for the judiciary. If we do continue to elect judges we should have the equivalent of a referendum on each judge regardless of whether they draw opposition. Should Judge ________ continue as judge for another term? If the answer is "no" then there should be a new judge special election/appointment to stand for election.

Many of the judges I voted for had no opposition. Some are so well respected that no one wants to challenge them. Others may not draw opposition for other reasons. If you asked the average Texan why they voted for a particular judge over another, they would most likely answer that they just voted for the Republican or Democrat. Is this the way we should select our judiciary?

Too fat to execute defense did not work.

2008-10-14T16:48:00.003-05:00

Yesterday the State of Ohio executed Richard Cooey for the double murder of two University of Akron students in 1986. Cooey was 5 foot 7 inches tall and 267 pounds at his death. Apparently the claims he made to stop the execution were based on his being so overweight that the executioners would have a hard time finding a vein to administer the deadly drugs. Cooey gained 75 pounds while on death row likely due to the type of food served in prison and his inactivity of being locked down 23 hours a day. This presents a rather strange argument that the state made him too fat to execute. This could lead to some rather strange policies had it been successful. The Death Diet could be forced on death row defendants to insure they are not too overweight to execute. This would be similar to giving defendants who are mentally incompetent drugs to make them competent just long enough to execute them.

The claim that Cooey made was not just pulled out of "thin" air. The last two executions in Ohio of men the size of Cooey in 2006 and 2007 resulted in 2 hour searches for a vein to insert the IV. However, it would appear that there was no such problems with Cooey's execution. Another appeal by Cooey was to have the state use only one chemical instead of the three drug mixture. The U.S. Supreme Court rejected both appeals so now there is precedent that being overweight will not save you from execution even if the state is the reason you became so overweight.

Confidence in the cure

2008-09-30T13:58:00.005-05:00

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

2008-09-17T14:47:00.004-05:00

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?

2008-08-26T16:27:00.002-05:00

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...

2008-08-19T14:55:00.002-05:00

"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

2008-08-07T14:53:00.002-05:00

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.

The Constitution and the price of dildos

2008-07-28T11:38:00.003-05:00

So what does the 14th Amendment of the US Constitution have to do with the price of dildos? It depends on which court you ask. In Texas we have a statute criminalizing an offense known as "Obscenity" Texas Penal Code Section 43.23 . The statute has been declared constitutional by the Texas Court of Criminal Appeals (see Yorko v. State, 690 S.W.2d 260, 263-66 (Tex.Crim.App.1985) and unconstitutional by the United States Court of Appeals for the Fifth Circuit (see Reliable Consultants, 517 F.3d at 744) Even more interesting the two decisions that drew opposite conclusions were based on the interpretation of whether the statute violates the 14th Amendment, specifically the individual's substantive due process right. This conflict between the dueling courts was recently highlighted in the case of Villareal v. State --- S.W.3d ----, 2008 WL 2744502 (Tex.App.-Corpus Christi)

In the Villareal case a person was arrested for selling a vibrator to an undercover officer. "The vibrator was called “Lick it Lover” and resembled the male sexual organ." according to the court's opinion. (Who says law is dull?) The person was arrested and convicted of violating the Obscenity statute. The court analyzes the constitutionality of the statute and comes to the conclusion that it is "constrained" to follow the reasoning of the Texas Court of Criminal Appeals rather than the US Fifth Circuit.

It would appear that every court that has examined this statute has found it lacking except the Texas Court of Criminal Appeals. One example cited by the Villareal court is the decision in Regalado v. State, 872 S.W.2d 7, 11 (Tex.App.-Houston [14th Dist.] 1994 "wherein the Fourteenth Court of Appeals affirmed a defendant's conviction for selling an obscene device in violation of section 43.23, Chief Justice J. Curtiss Brown succinctly expressed his displeasure with the statute in a concurring opinion, stating: “Here we go raising the price of dildos again. Since this appears to be the law in Texas I must concur.” (emphasis added) The Villareal court concluded, "We share Chief Justice Brown's sentiments; moreover, we agree with the legal reasoning set out by the Reliable majority.And though we embrace the Fifth Circuit's decision, we are unfortunately constrained from following it."

The reasoning for following the Texas Court of Criminal Appeals seems to be based on the concept that the state's highest court is the best judge of a state statute, which is not new. However, the exact same statute has been declared unconstitutional for violating the substantive due process rights of a citizen under the 14th Amendment of the U.S. Constitution by the Fifth Circuit. Isn't a federal court the best judge of what violates the federal Constitution? Not in Texas and perhaps the 7th Circuit.

So what does the Constitution have to do with the price of dildos? The answer from all of the courts that have examined the issue is a definite, it depends.

Something to think about.

2008-07-14T13:53:00.002-05:00

"I hope this has given him something to think about." Those were the comments of the Lake Worth Police Chief about the dismissal of charges against a local 18 year old man who was arrested and accused of delivering drug laced cookies to local law enforcement officers. The video from CBS 11 shows the chief reacting to the Medical Examiner's Office report that there were no drugs of any kind in the cookies. So since the chief has asked this young man to think about his wrongful arrest, let us examine the lessons one could learn from this incident.

One lesson would be just how easy it is to be wrongfully accused of a crime, be arrested and convicted in the public eye before all the facts are known. The young man spent 54 hours in jail and his name and picture were flashed around the world via the Associated Press picking up the story. Something to think about would be where does he go to get his name and reputation back.

Something else we could think about would be how the police did an initial test on the cookies and it came back positive for LSD. What kind of confidence can we have in presumptive tests when the margin of error is positive for LSD or no drugs at all!

We can think about the arrogance of a government that accuses someone of a crime and is absolutely wrong but rather than give a mea culpa hopes the wronged person learned something. It is understandable that police can make mistakes. What is not understandable is the unwillingness to acknowledge the mistake. This ultimately hurts the credibility of law enforcement generally.

The chief by his comments on this circus have given us all something to think about.

DNA Friend or Foe

2008-07-11T16:01:00.002-05:00

When I first started practicing law as a young prosecutor the new thing was DNA evidence. I remember learning how difficult it was to extract the DNA and how the process was very complicated. Prosecutors thought that DNA was the newest weapon of law enforcement and would all but decide cases on its own. After all when the jury is told by the state expert that unless the population of the world at least doubled overnight the likelihood of two people having the same DNA is all but impossible, it tends to reach and overwhelm the beyond a reasonable doubt burden. DNA was thought to prove an issue and often guilt almost beyond all doubt.

However, today we know that DNA is not the law enforcement weapon once thought. In fact it is a double edged sword. Today DNA is used to exonerate people just as it is used to convict. We have in recent years heard an almost constant series of wrongfully convicted people being exonerated by DNA. The Innocence Project of Texas and it's sister organizations throughout the country use DNA evidence as a hammer against the government to clear people wrongfully convicted. Just this week the family of Jonbenet Ramsey received a letter from the Boulder, Colorado District Attorney and were finally cleared of suspicion in relation to their daughter's tragic murder in 1996. This occurred only because the technology has improved to the point that the clothing of the young girl could by tested for "touch DNA". Apparently this is a new technology that allows the extraction of DNA from skin cells left by the murderer on the child's clothing.

It now seems clear that DNA evidence will be a part of the American criminal justice system for any comparison related issue. It should be noted, that unlike CSI and the other TV shows, DNA is not a panacea or answer in every case. Often there is no evidence to compare DNA against so it is not a factor. However, regardless of whether DNA is a friend or foe, it is here to stay.

Zero sum game

2008-07-01T21:24:00.002-05:00

Child sexual offenses are one of two things. They are one of the worst crimes that someone can do OR it is the worst thing of which one can be falsely accused. It is a zero sum game. It is not an exaggeration to say that it is easier to be on trial for murder than a sexual offense involving a child. In a murder situation the defense can present self defense evidence or the good ol "He needed killing" defense. There is no justification for the sexual offender whose victim is a child. Society is much more harsh on a sex offender than a murderer. There is no nationwide database requiring murderers to register for life. There are not restrictions on where they can work or live. No proposals from state legislators for murderer license plates or signs in their front yard.

What most people do not understand is how easily you can be sitting in the defendant's chair at trial accused of this horrible offense. Consider a divorce situation where there is going to be a custody fight. The atomic bomb of leverage is the accusation that the other parent abused the child sexually. Suddenly you are not worried about custody as much as spending around 20 plus years in prison. This is not as uncommon as you might think. It has also occurred that an angry teen, who has recently been grounded or otherwise disciplined, makes a false allegation to "show them" or desperate for attention discovers just how much attention adults give when the allegation is made. Hopefully the investigation reveals the true motive of the allegation but it does not prevent the damage to life and reputation.

Another example, is a simple misunderstanding involving bathing your own children. Children go through phases where they think it funny to talk about all things bathroom related. The child mentions at school that Daddy "touched" her private area while bathing. Teacher is required to report the statement. School nurse confirms the statement and reports to Child Protective Services. CPS talks to child and parents who deny any wrongdoing. However, Daddy must leave the home while the investigation is being conducted over the next 60 days or so. No contact with his children. CPS reports the incident to the police who now open an investigation. Now the police want to interview Daddy. If Daddy does not cooperate he is told he could lose his children. The police don't believe that Daddy did nothing wrong. They file their charges and Daddy's life is now out of control.

Now you get arrested and booked for this horrible offense. Your name and the charge are public record. Friends, family and co-workers are shocked. The boss tells you that you need to find another job. Now you are out of your house and job. Everyone treats you as if you actually did this offense and we have not been anywhere near a court of law yet. Also as a condition of your bond or release from jail to await trial, you can not only not see your children but you can not be anywhere that children gather. Parks, malls, schools and who knows where else. Remember you have not been convicted and have done nothing criminal.

Assume you go to trial. It will take days to complete the trial. In large part because it takes so long to find even 12 people that will at least say they can be fair and follow the law. If you are convicted, good luck on appeal or in prison. Probation is hard to come by if even available. Truly the allegation is almost enough to ruin your life, reputation and family. Even if you are found not guilty, the scarlet letter stigma remains around you in the minds of others. It is absolutely a zero sum game.

Jury Selection

2008-06-24T20:56:00.002-05:00

The thing I like most about jury trials is the built in drama. Everything is up for grabs. The defendant does not even usually know who has been summoned for jury duty or more importantly who showed up that was summoned until right before trial. In some felony cases I have had as much as a weekend to look over the list of names and occupations. Usually it is literally minutes before they walk in to begin jury selection on misdemeanors.

Jury selection, or "voir dire" as we lawyers refer to it, is the most important part of a criminal case. I had an older criminal lawyer tell me one time that he always thought of the trial as half over once the jury was selected. I agree. Most criminal defense lawyers spend a great deal of time preparing their case. Thinking through the trial and how certain items of evidence may be entered or kept out. Researching the law so they are ready to give answer to any question asked by the judge. Thinking of a theme for the case and working on closing arguments. The truth is that you may do all that and still lose the case if you have the wrong jury.

I just finished my 114th jury trial of my 19 year career. I had the pleasure of going to trial with a friend and colleague Shawn Matlock who many of my regular readers are familiar with from his blog, The Matlock Blog. It was a DWI blood search warrant case. Lots of interesting issues and some good facts for the defense. However, the case in retrospect was lost in jury selection. This is not to diminish the very good job the prosecution did and I have congratulated the prosecutors on their performance. However in talking to the jury after the verdict, it was very evident that we had a very opinionated person on the jury who would not express it during the jury selection process. This person of course was the foreperson of the jury.

Time limitations are very popular with trial judges on jury selection. The problem with that is that it often takes a series of questions, not to mention a little psychology and group dynamics to get potential jurors talking. That all takes time. Ultimately, unless jurors talk about themselves and their opinions, your strikes are based on stereotypes about occupations, addresses and socio-economic groups and that is a crap shoot at best.

I have won cases that on the facts I never should have won and lost cases I never should have lost. The difference is the jury. You can try the same case exactly the same way in front of two different juries and get opposite results. Now that is drama! The last area of trial work that is a real art form is jury selection. When limitations are placed on that process we are one step closer to the federal system or just first twelve that can not be removed for cause.

Please stop talking!

2008-06-05T15:50:00.003-05:00

Once again I am confronted by my old nemesis in the criminal defense game. Namely, my client's mouth. Any one who has practiced criminal law long knows that the most damning evidence always comes from the mouth of the defendant. Today in court I was, in my humble opinion, pulling a rabbit out of a hat for my client, only to walk back into the court room and find that my free man client of 10 minutes ago is now in custody client. Why? Because the judge called him up to inquire about some fees he had been ordered to pay and quick as a flash he had talked himself into custody. Note to defendants. Judges rarely enjoy arguing with you about anything!

The reason we were having to work out a plea was because -- wait for it --- you guessed it -- my client's statements to the cops at the scene. Absolutely taking the tools out of my hands. There is a reason criminal defense lawyers always say "don't say anything". Because most of the time the other evidence the government has is weak. A defendant's statement though adds the cherry on top for the state. Remember right before you confessed to everything how the cop read you this little card. Remember the first thing he said, "You have the right to remain silent, anything you say can and will be used against you." Turns out THEY MEAN IT.

Sorry to my readers if this sounds like a rant. But I would hate to rant so much and it not at least sound like one. This is free advice to anyone who might be a target or potential defendant. Please stop talking! That means to cops, friends (also known as witnesses for the state) people sitting next to you at the bar, people sharing a jail cell with you, anyone who is not your spouse or priest. Help me help you and please stop talking!

The edge of reasonableness

2008-05-13T15:10:00.005-05:00

Once again I have the duty to call attention to a recent opinion of the Court of Appeals - Fort Worth. This time the mental gymnastics are truly impressive to affirm a DWI conviction. The case is Belcher v. State out of Denton County. One of the issues in the case was whether a 27 minute delay waiting for arrival of another officer who could more quickly conduct the DWI investigation was reasonable. That's right you read it correctly. It was not that the officer who stopped the defendant could not perform a DWI investigation. He testified that, “a typical DWI can run four, four and a half hours, ... where [the other officer] can do it in half the time.” So this was about saving the officer who stopped the defendant some time.

The facts are comical as the officer stalls for time until the other officer can arrive. The Fourth Amendment analysis requires "The reasonableness of the duration of an investigative detention depends on whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. "

From this point on, 14:56 until 15:23 on the DVD-i.e., the next twenty-seven minutes-Officer Willenbrock asked no questions related in scope to the initial purpose of the stop and asked no questions related to a DWI investigation. During the suppression hearing, Officer Willenbrock conceded that he had not diligently pursued a DWI investigation:

Q. Officer, would you say you diligently pursued your DWI investigation?

A. Diligently pursued?

Q. Yes.

A. I didn't run the investigation. So I didn't diligently pursue the DWI investigation.

The DVD of the stop shows that at 14:58 during this twenty-seven minute time period Belcher asked, “Is there a problem?” and Officer Willenbrock indicated that there was no problem; he was just waiting on his partner. At 14:59, nineteen minutes into the stop, the DVD shows that Officer Willenbrock allowed Belcher to put on a ski parka that he obtained from the backseat of Belcher's vehicle. At 14:59 on the DVD, Officer Willenbrock told Belcher to “hang tight, I am waiting for my partner to get here.” Belcher asked whether he could turn off his vehicle's headlights so that his vehicle's battery would not die, and Officer Willenbrock permitted him to do so. Belcher then asked whether it was okay for him to smoke a cigarette, and Officer Willenbrock permitted Belcher to smoke. At 15:01 on the DVD, Belcher exclaimed, “I am freezing.” At 15:01 on the DVD, Officer Willenbrock told Belcher, “Just hang out and smoke a cigarette; I'll go talk to my partner, it should be just a minute.” Belcher then pulled the hood of his parka up over his head. From 15:01 through 15:05, the DVD shows Belcher standing alone near his vehicle. Officer Willenbrock was in his patrol vehicle.

Belcher testified at the suppression hearing that the temperature that evening was in the 30s; Officer Martin testified that it was “cold.”

At 15:05 on the DVD, Officer Willenbrock returned to stand near Belcher and asked, “Are you pretty good at snow boarding?” Belcher and Officer Willenbrock discussed snowboarding for the next three minutes, and then at 15:08 on the DVD, Officer Willenbrock said, “I'm going to see if she is almost here.” Belcher asked if he could put out his cigarette in his vehicle's ashtray, and Officer Willenbrock permitted him to do so.

From 15:09 through 15:13 on the DVD, Belcher stood by himself near his vehicle while Officer Willenbrock returned to his patrol car. A few dings are audible, indicating further text messaging between Officer Willenbrock and Officer Martin. At 15:11 on the DVD, Belcher asked for permission to answer his cell phone, which he heard ringing in his vehicle. Officer Willenbrock permitted Belcher to answer his phone, and the DVD shows Belcher engaged in an inaudible conversation on his cell phone.

At 15:13 on the DVD, Officer Willenbrock returned to stand near Belcher and said, “I appreciate your patience, she's going to be here in just a minute.” From 15:13 until 15:21, the next eight minutes, Officer Willenbrock asked Belcher questions about snow boarding in Colorado and about hunting. Finally, at 15:21 on the DVD, Officer Willenbrock said, “Let me go call her.”

The audio on the DVD is muted from 15:21 until Officer Martin's arrival, at approximately 15:23, thirty-nine minutes after the 14:44 stop of Belcher. The tape was moved from Officer Willenbrock's vehicle to Officer Martin's vehicle, and it shows Officer Martin approaching Belcher and saying, “I bet you're tired of waiting for me.”

So apparently "Are you pretty good at snow boarding?" is some new NHTSA Field Sobriety Test. Also note that the police officer is in his car with a heater while the defendant gets to stand in the cold during the wait. However, the thing that doomed the defendant in the minds of the Court of Appeals was the cell phone call and the smoking a cigarette! They "reasoned" that,

We agree with Belcher that the apparent twenty-seven minute delay he experienced waiting for the arrival of Officer Martin approaches the edge of reasonableness under the Fourth Amendment. But applying the fact-specific Fourth Amendment standard for reasonableness, we note that the record shows Officer Willenbrock expected Officer Martin to arrive within approximately five minutes of his initial call. He later learned that Officer Martin had been delayed at the stop of another suspect but was “still intending on coming to my location.” Officer Willenbrock contacted Officer Martin at least four times-at least twice during this twenty-seven minute period-in an attempt to ascertain Officer Martin's whereabouts and her estimated time of arrival on the scene. The record reflects that Officer Willenbrock continually expected Officer Martin to arrive at any minute. Additionally, Officer Willenbrock permitted Belcher to smoke and to answer his cell phone during the detention, thus reducing to some extent the level of intrusion generated by the detention. (emphasis added).

What can we now conclude from this jurisprudence? If you or your client find yourself on the edge of reasonableness, don't smoke a cigarette or take a cell phone call because that pulls you back from the edge of reasonableness in the minds of the Court of Appeals.

Free at last.

2008-05-05T14:08:00.004-05:00

Sunday night the CBS program 60 Minutes did a story on yet another exoneration in Dallas. This time James Woodard was exonerated by DNA evidence after having served 27 years in prison for a crime he did not commit. Woodard served the most time of anyone yet exonerated by the Texas Innocence Project. Aside from the pure tragedy of an innocent man losing 27 years of his life, there were several issues that the 60 minutes story addressed that I found interesting.

Apparently, Woodard could have served much less time if only he had told a parole board he did the crime. Woodard said that he came up for parole 12 times and was denied each time because he would not admit that he did it. As Scott Pelley said, "you chose truth over freedom?" That struck me as a choice not many would make.

Another issue was that because Dallas apparently saves physical evidence from old cases, DNA comparison is possible on many of the convictions in Dallas. That explains why 17 people have been exonerated in Dallas alone. Additionally, the Dallas District Attorney, Craig Watkins, has opened his office to the Innocence Project to comb through over 250 convictions and assisted them by using subpoena powers to get necessary records. This is extremely unusual for a District Attorney to grant such access and be so proactive. He said in the story that he has a duty to seek justice and that is why he spends over $400,000.00 of his budget on this issue.

These wrongful convictions occurred after the defendant was provided due process, legal counsel, jury trials and appeals. To me this shows that you are only guaranteed due process not justice. Justice is a byproduct of due process but not always. At least these men lived long enough for the legal system to end an injustice. What about the wrongful convictions that got the death penalty?

Did I email that to you?

2008-04-23T11:15:00.003-05:00

The rarest of events has occurred here in Texas. No, it is not a meeting of the anti-gun rights and pro illegal immigration club or the election of a member of the Green Party to statewide office. A criminal statute has been declared unconstitutional on its face by the Court of Appeals of Texas, Fort Worth. The statute is a part of the harassment statute, namely Section 42.07(a)(7) of the Texas Penal Code. The court declared, in the case of Karenev v. State, the statute is unconstitutional because it is on its face unconstitutionally vague. I will allow you the reader to read the opinion for yourself concerning the facts.

Basically a criminal case was brought in Denton County under the specific part of the harassment statute that concerned "repeated electronic communications" that arose out of a divorce situation. The defendant was convicted and appealed on the issues of factual sufficiency of the evidence, the jury charge and the constitutionality of the statute. In a rare instance, the court addressed an issue that was raised for the first time on appeal and was not raised at trial. This only happened because the defendant was not arguing that the statute was unconstitutional as it applied to him but that the statute is facially invalid.

The court had problems with multiple parts of the statute. They said the words, "likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another" were vague and that it would be particularly hard to give a meaning to "annoy" or "alarm" because they are "susceptible to uncertainties of meaning." The statute's requirement of "repeated electronic communications" is not defined. How many emails equals "repeated" three? four? Also over how long? Could "three annoying emails over a five-year period" make a person guilty under this statute? The result is that the rarest of events occurred which is a criminal appellate decision ended with the words "we reverse the trial court's judgment and render judgment of acquittal."

Good facts or good law

2008-04-14T12:16:00.003-05:00

Every time I am preparing for a trial I deal with the question of do I have good facts or good law. Rarely do you have both because those cases are usually dismissed or never go to trial. Sometimes you have neither good facts or good law and those cases usually plead. In most of the trial cases you will have either good facts or good law. In my experience as a criminal defense attorney in Texas, there is precious little good law for the defendant.

If you have the law on your side, you can often keep out a piece of evidence but that does not insure an acquittal. Having the law can hamper the state but does not usually stop or cripple the state's case. Absent a statute of limitations type situation, the law rarely can "set you free."

However, if you have good facts, you have a real chance at acquittal in front of a jury. The problem with good facts is that the state does not have a reason to dismiss the case as with a legal problem. The facts depend on whether a jury believes them so there are no guarantees. Still I would prefer, and I most often have, good facts instead of good law. Good facts seem to be compelling to juries but not necessarily prosecutors. So if you have good facts the only way you maximize their value is through trial. Juries love a good story but it has to be believable and not full of excuses. If you can present a different but equally plausible story from the state. Presto "Not Guilty" because there is a reasonable doubt as to which is right.

For the attorneys who glance at this blog occasionally, which would you rather have good facts or good law?

But he did it!

2008-04-04T14:28:00.003-05:00

This week I have had to explain the law of parties in Texas to some clients. If you watch TV cop/lawyer shows or practice outside of Texas, you may be familiar with the concept of accomplice liability. In Texas we refer to it as "the law of parties" What we are really talking about is when can someone be criminally responsible for the acts of another.

The law says that a person can be charged with commission of an offense if they were a party. The classic example is that of a lookout or getaway driver. If two people go to rob a bank and one goes inside with a weapon and commits a robbery and the other never goes inside but waits outside as the getaway driver, both can be charged with robbery. The theory is that, but for the actions of the getaway driver aiding and assisting the gunman, the crime might not have occurred so the law will punish both equally.

So when is someone criminally responsible for the acts of another? The Texas pattern jury charge says something like, "A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." However, "mere presence alone will not constitute one a party to an offense." The charge is rather broad. We no longer have terms like "accessory before or after the fact" The assistance can be merely to help the wrongdoer avoid capture like the getaway driver. The law encompasses events before, during and after the crime is committed.

Many defendants do not realize that they can be guilty of a crime committed by another but which they aided or assisted. They are always surprised that the defense of "But he did it!" doesn't work.

What price justice?

2008-03-28T15:39:00.008-05:00

Recently George Will wrote a piece for the Washington Post called Bargin Basement Judiciary. In the article he said, "Fifty years ago, about 65 percent of the federal judiciary came from the private sector -- from the practicing bar -- and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it." I do not know where Mr. Will got his numbers from but if this is true it is more troubling than the lack of pay increases for the judiciary.

If you think about the qualities we value most in a judge, what are they? Objectivity, balanced temperment, wisdom, and if you are the accused, dare I even say, mercy. We are all products of our past and our environment. Most importantly judges are human beings with all the same weaknesses as the rest of us. An individual's past can't help but influence the thought process.

Therefore, is it healthy for the criminal justice system to have judges who have only experienced one side of the system? Can a judge who was a career prosecutor bring to a case the same abilities as someone who has been both a prosecutor and a defense attorney? Individually I am sure there are such people but it would seem to me that their lack of experience in one area would be a deficiency.

Can we expect a robust and independent judiciary to serve as a bulwark against the government if the judge has always been a servant and employee of the government. It is to be expected that there will always be people moving in and out of government service, your humble writer was an ADA at one time, however is it healthy to our justice system to fill the judiciary with people who have never known anything but working for the government? Judges occasionally have to stand up to strong executives who seek to exercise more power than the law allows. We need strong judges who will protect and serve the people not the government. That is worth any price.

The Nine

2008-03-20T23:17:00.006-05:00

I have not made a book recommendation since I started this blog. The reason is that I don't usually read law related books for pleasure. I read law and law related things everyday of the work week. Why would I want to spend my personal time reading the same things? So, no I don't read John Grisham novels or Scott Turow or any of the true life crime books. If you worked as a plumber all day, would you want to come home and spend your free time reading books on plumbing?

Since this blog is about criminal law, I finally do have a book recommendation to make. At Christmas I received the book, The Nine Inside the Secret World of the Supreme Court by Jeffrey Toobin . The book attempts to inform the reader of the personalities and political struggles that make up the United States Supreme Court. To me the most interesting aspect of the book is the personalities of the justices and how they affect the decision process and then the law. Some of the justices come across as self important, arrogant, amusing, out-of-touch and down right weird.

One of the most disturbing things about the book is just how much politics, public opinion and events shape the decisions. The whole reason for lifetime appointments was to insulate the final arbiters from just such influences. Toobin is sometimes rather prone to exaggeration. To hear him describe it, Bush v. Gore was the Dred Scott of our time. You get the feeling his guy didn't win rather than the legal precedent set was appalling.

I recommend the book for the peek into the world of how our legal system works at the highest level. I remain hopeful that judges will decide cases on the specific facts without prejudging and give some since of stability to the law by following precedent where possible. It makes my job easier when I try and give clients advice on what a court will likely do in their case.

The Challenge

2008-03-10T22:22:00.002-05:00

With the recent fall from grace of New York Governor Eliot Spitzer and "Crusader of the year" as crowned by Time magazine, we have presented in full glory the challenge of criminal defense. Here is a ex prosecutor who talked of "putting a stake" through the heart of a defendant when he was Attorney General for New York. Now it is his heart at stake. Many might enjoy the irony (even though it happened too late in time to be included in Alanis Morissette's song about irony - which ironically has no examples of irony in it.) I digress.

Criminal defense attorneys must represent people who are not always likable to put it mildly. We all get the questions, how can you represent that person? The answer is always the same. Because he needs and is entitled to legal representation. I believe that completely or I would do something else. The rights we have in the Constitution are not just for the nice people, but "all men". Scott Greenfield recently commented on the response of criminal defense lawyers to Spitzer's troubles, "do we not defend the hated too?" Yes we do. I do not have to like someone to do the best job I can to defend them.

The challenge of criminal defense is not to confuse the protection of somebody's rights with endorsing them or their actions. In the same way we convince juries that finding the government has not met it's burden of proof is not rewarding the defendant or saying you approve of his actions. I am not a crusader but I would defend one.

Election Day in Texas

2008-03-04T11:28:00.002-06:00

I voted this morning in the Texas primary. For the first time in my adult life I voted for self-interest rather than perceived national interest. I know that does not sound very noble and maybe it is not. However, I have been voting Republican most of my life thinking I was helping my country. What has it accomplished? Well, limits on jury verdicts to protect doctors regardless of the harm or lifetime costs to the victim. Not to mention accelerated statutes of limitation in medical cases. I can see why a doctor would support the Republicans. It is in their interests. The same is true for insurance companies.

Well what about the area of law that I practice -- criminal law? What have Republicans worked for in this area? Greater governmental powers against individuals at the federal and state level. Search warrants for general exploratory searches. The very thing the 4th Amendment to the Constitution was designed to prohibit. Apparently we will be safer if we just trust the government without that pesky requirement of probable cause presented to a judge or magistrate. That was the same argument made by the Crown to the American colonies when soldiers would search homes and persons without warrant or probable cause. To hear the President, the world will end if huge telecoms don't get immunity from wronged citizens filing suit. Not only does he not want to get warrants from federal courts to search electronic data, he does not even want to get the permission of a secret court set up just for that purpose. Too much trouble I guess. The government's need of this information is necessary for security. To which I reply with one of my favorite quotes, "Necessity is the plea of every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." William Pitt

Well at least at the state level Republicans have supported individual freedom. Right? Well yes unless you have been accused by the government of something. Then good luck. If you do not have a jury standing between you and the government there is little hope for you. If the government does something wrong or illegal during the trial, you can always appeal to a higher court. Right? Well -- unless you did not preserve the issue for trial by waiving any error for lack of a specific enough objection. Form over substance. Or you did object and the error was preserved just right but the appeals court determines that the error was harmless. But at least you still have access to the courts. Unless you are a capital defendant and your brief comes in ten minutes late. Sorry you die. (For Texas readers you know what I am talking about)

So I ask myself, do we really need more Republicans writing the rules and is it best for me and my clients? I don't think insurance company execs. have to explain why they vote their interest. So why should I have to explain voting my interest? Because it is a change from what I have always done. I am voting my best interests for a change.

You can thank the government

2008-02-29T11:11:00.002-06:00

If my loyal ones of readers were wondering why there has not been a post in recent days, you can thank the government. The joy of being in business for yourself is that you are the boss and you set your schedule. Normally that is true, however, around this time of the year a young man's mind turns not the fairer sex but TAXES. I have been going through all the 2007 information about our business to have everything accurately reflected in our books.

When I am actually practicing law the last thing I think of is the bookkeeping aspect of things. So this is the payback. Now I have to take the better part of a week to make sure everything was recorded properly. It is not that the transactions were not accurate, it is that the category something was put under was not accurate as an expense, etc. Nothing serious just a time consuming task.

I hope to be engaged in the practice of law again on Monday. Today though I wear the green eye shade of a bean counter thanks to the government.

Common sense and criminal defense

2008-02-20T10:43:00.002-06:00

Today in court I observed how not to negotiate with a prosecutor. The attorney came into a room full of lawyers and started talking to the prosecutor. The more he talked the more the rest of us watched. He never really asked for a offer from the prosecutor but rather started cross examining the ADA on the District Attorney's office policy and recent newspaper articles that ran in the local paper. Anyone who has ever worked as an ADA knows your authority is limited to guidelines and policies set by your elected boss. I mean really, what did he expect to accompllish by this display. His client was charged with a DWI and didn't do any of the tests requested. That just screams JURY TRIAL! Did he think that the ADA is just going to go against the District Attoney's direct instructions about such cases and say, "Oh my God you are right, I don't have a case. Here is your dismissal and our sincere apology for some articles run in the local paper about DWI cases not even mentioning your client."

The point of all of this is that common sense in criminal defense is essential. You don't have to be friends with prosecutors but you should not go out of your way to piss them off either. Do you really think the threat of yet another DWI trial is going to intimidate an ADA with any experience? In the pretrial negotiations I have found that playing the cards close to the vest is usually the best course of action. If we have to have a trial then so be it, but until my client tells the court their decision to have a trial, I preserve the option of having negotiated the best plea offer possible. Coming in like a bull in a china shop rarely serves the client's interest. Most criminal defense lawyers know this already, but seeing it occur in a room full of expereinced criminal defense lawyers and the lawyer not being a newbie but a senior attorney was note worthy. Why is it called common sense if it is not that common?

The mafia in Texas ain't what it used to be

2008-02-12T11:40:00.000-06:00

When you hear the term "organized crime" what do you think of? Perhaps people with names like "Lucky", "Fat Tony", "Jimmy the squealer" etc. come to mind. You probably think of the Godfather or Goodfellas movies or even the RICO statute. Well in Texas organized crime is not so colorful. In Texas organized crime is covered in the Texas Penal Code Title 11, Chapter 71. Many people might find themselves being charged with engaging in organized crime who never met a mobster. Consider how expansive the statute is:

§ 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY. (a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:
(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution; (4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A; or
(13) any offense under Section 37.10.

This appears to me to be yet another example of word inflation. We will call it engaging in organized criminal activity for gambling or forging a prescription. The mafia in Texas ain't what it used to be.

What is so great about Tarrant County?

2008-02-06T15:47:00.000-06:00

I love practicing criminal defense in Tarrant County. I have the experience of practicing in another state and other counties in Texas. You might not think that a county with all Republican judges and district attorney would be a good place to practice criminal defense. That would be a mistake.

It does not mean that our judges and district attorney let robbers and rapists dance in the streets. I don't think any criminal defense attorney with a family and home in the county wants that either. However, in Tarrant County the judges are approachable and honest. I may not always be in agreement with them, but I am not always agreeable when someone does not bow at the alter of my brilliant legal arguments. When the judges become confused and rule against me, I know that there is no petty personal politics in their decision. They have the right to risk reversal by the Court of Criminal Appeals. (I almost typed that without laughing.)

Recently I represented a young man who lost his way and picked up a second degree felony in a nearby county. Dealing with the DA there made me appreciate the DA's office we have in Tarrant County. In Tarrant County we have an open file policy in the District Attorney's Office. For the non lawyers, that means the defense gets to see what the prosecution has and plans to use against the defendant. Not every DA's office does this. Knowing what the state says happened helps me do my job better. I can tell if the evidence is strong or weak, inform my client about the problems they may have proving the case or even avoid an ambush at trial. In the other county, I was allowed to read but could not copy the DA's file and reports. Not the same thing.

Finally, the other great thing about practicing criminal defense in Tarrant is the criminal defense bar. (This is not the name of a tavern) I have found them to be friendly, knowledgable professionals for the most part. We meet regularly and share useful information with each other. When I go to statewide CLE events on criminal law, I always see a large contingent of Tarrant County judges, defense lawyers and even prosecutors, depending on the event. Many times they are the speaker at the event.

I feel lucky to live and practice here. Despite this post, I am not a candidate for any elected office in Tarrant County.

The Most Effective Weapon

2008-01-30T15:29:00.000-06:00

Every time I read opinions from the criminal appellate courts of this state, I become more convinced of the importance of the jury trial. Basically if you do not win the case at the jury level you are more or less screwed. The words, "we can always appeal" comes only from uninformed clients. Very few criminal defense attorneys would think they stand the best chance in front of a Texas appellate court. This is not to say that the appellate courts are not following the law, but it is roughly the same as threading a needle as to win a criminal case on appeal.

So if trial is the most important thing in criminal defense, the question arises, "What is the criminal defense attorney's most effective weapon in a criminal trial?" Let me hear from you criminal defense lawyers and non lawyers too for that matter.

Your humble writer believes the most effective weapon is the burden of proof beyond a reasonable doubt. I try and beat the government to death with it at trial.

Smile your on camara

2008-01-22T15:55:00.000-06:00

Texas law requires that DWI cases be videotaped. Most people have seen these videos on television and are accustomed to seeing them. They usually start with a video of the car being stopped from the back via the dashboard of the police car. Sometimes there will be bad driving that the police officer wants to record. Other times the video starts with the car pulling over and no driving is depicted.

The police officer leaves the camera recording and activates his microphone so that his and the driver's voice are recorded. Anything said by either will be played back for a jury later. Remember how I and other criminal defense attorneys have warned you about chit chat on the side of the road. Anything you say, and the way you say it, is recorded for later use. Since you are not under arrest, the officer is not required to read you your Miranda rights yet.

Next the officer asks you to step out of the vehicle "to check your eyes" or "see if you are safe to drive home". (Translated: You are going to jail this evening.) Some of the more advanced video equipment will even zoom in on your eyes for the eye test (HGN). It will also record your performance on the Walk and Turn Test and the One-Leg Stand Test. Loss of balance and inability to follow directions will be very noticeable on camera. Most people think it ends there. WRONG.

Most people don't know this but when you are put into the police car and the cop walks back to your car to close and secure it, the names you call him and the cussing you do is recorded for all the little old ladies on the jury to be offended. Sometimes they will even turn the camera around to record you in the back seat of the police car. All of the crying and frustration is recorded for all to enjoy at the trial.

Finally, at the police station you are recorded as well sometimes through the breath test or refusal. The room you stand in usually has a big black line that runs across the floor and up the wall. You are asked to stand there in front of the camera so that any swaying can be recorded and noticed because there is a big black line on the wall that is not moving.

Videos are very good evidence for the state and sometimes for the defendant. They capture signs of intoxication and the lack of them. Just remember that if you are stopped for DWI, smile, your on camera!

I Want Candy

2008-01-16T16:55:00.000-06:00

The title of this post might cause some of us who are old enough to remember the 80's band Bow Wow Wow's 1982 pop hit of the same name. For you young people please see the clip.
The reason I post this is because of the very frustrating day I had in trying to represent an appointed client. The client was charged with Agg. Assault with a Deadly Weapon. It involved a domestic fight where scissors became involved and the "victim" got cut on the ear. I was appointed this morning and quickly read the police report. I spoke to the prosecutor who made a 3 year deferred adjudication probation offer.

As required, I communicated the offer to the client. The client told me an account, if true, that would be a self defense claim. I told the client this and that I could not plead her to something she was not guilty of under the law. Also the prosecutor wanted to check with the "victim" to see if she had a problem with a misdemeanor lesser included. The prosecutor tried twice to contact the "victim" but was unable to contact her. I told the client she should wait and give us time to check things out. She told me she did not want to wait and would take the 3 year deferred offer. I told her this was against my advice and I communicated that to the judge that her decision was contrary to my advice. The judge said ultimately it is the client's decision.

The point of all of this is that the client wanted the "candy" of being released from jail today rather than a misdemeanor or not guilty later (even days later). I know she will regret this decision later. Why do you even need a lawyer if you will not take their advice? I know that we live in a society that wants instant gratification, but that was a high price for being released today. I hope she lives the probation because the price goes way up if she is revoked on a second degree felony. In effect she cut me out of the loop and took the candy that the prosecutor offered today. Not the best day in court. The court gives people defense lawyers for a reason. You might want to listen to them!

The Scarlet Letter Continued

2008-01-14T16:44:00.000-06:00

I was recently doing some research on sex offender registration in Texas. I came across another statute that brands sex offenders. The statute is found in the Code of Criminal Procedure Art. 42.016. This statute requires certain sex offenders to carry special driver's licenses that show the person is subject to sex offender registration.

The statute is as follows:

Art. 42.016. SPECIAL DRIVER'S LICENSE OR IDENTIFICATION REQUIREMENTS FOR CERTAIN SEX OFFENDERS. If a person is convicted of, receives a grant of deferred adjudication for, or is adjudicated as having engaged in delinquent conduct based on a violation of an offense for which a conviction or adjudication requires registration as a sex offender under Chapter 62, the court shall:
(1) issue an order requiring the Texas Department of Public Safety to include in any driver's license record or personal identification certificate record maintained by the department for the person an indication that the person is subject to the registration requirements of Chapter 62;

(2) require the person to apply to the Texas Department of Public Safety in person for an original or renewal driver's license or personal identification certificate not later than the 30th day after the date the person is released or the date the department sends written notice to the person of the requirements of Article 62.060, as applicable, and to annually renew the license or certificate;

(3) notify the person of the consequence of the conviction or order of deferred adjudication as it relates to the order issued under this article; and

(4) send to the Texas Department of Public Safety a copy of the record of conviction, a copy of the order granting deferred adjudication, or a copy of the juvenile adjudication, as applicable, and a copy of the order issued under this article.

This statute along with many others are, depending on your vantage point, either warning the public of a valid threat or branding people with a modern day scarlet letter. When the requirements are so punitive that no one can abide by them, have we as a society really protected ourselves or forced people who would have complied with the requirements to go underground? If that happens, we will have actually accomplished the opposite goal of making it harder to monitor and the public will be less informed. There has to be a balance of interests. If we make it to where a person can not legally live or work, what options are left. Desperate people do desperate things.

If you are accused of a sex offense, it is impossible to take it too seriously. Your entire future is on the line. Every time the legislature meets, fortunately in TX every other year, they pass more laws like this one. Get a real criminal defense lawyer working for you as soon as possible.

Your first clue.

2008-01-09T14:20:00.000-06:00

When a person is pulled over by the police, what happens? First you likely say something vulgar under your breath. Next your pulse jumps up a bit even if you did nothing wrong. It is an inherently nervous situation. The officer usually first asks for some identification and begins to chit chat with you. "Did you realize ..." etc. This is where the trouble starts. Anything you say to the officer prior to the arrest is considered an admission and is admissible in court. So simple questions like "where are you coming from?" and "Have you had anything to drink tonight?" if answered will be heard by the jury should an arrest occur.

Texas law requires you to truthfully identify yourself to police officers but not to incriminate yourself with small talk on the side of the road. Most people submit to whatever a police officer asks. The officer is clearly in the position of power. (After all he has a gun and badge) There is one general rule of thumb to keep in mind. If a police officer, who has all the power, asks for your permission to do something, THIS IS YOUR FIRST CLUE! This means that he is about to try and do something that the law will not allow without your consent or cooperation. Search your car, house, person, make a formal statement, get a sample of your blood, hair, breath or DNA. When you consent the constitutional requirement for a search warrant is avoided. The Constitution is the only protection you as a citizen accused has, don't throw it away.

If you do not catch the first clue, by the time it does occur to you, it is often too late. Don't miss the first clue.

New York Times vs. Texas

2007-12-28T10:15:00.000-06:00

Here it is bowl season again. Everyone is pulling for their favorite team. I still hold out hope my beloved Crimson Tide can salvage a otherwise sorry season. Yesterday Texas, the university, played in the Holiday Bowl however, Texas, the state, is in a clash of titans with the New York Times following yesterday's editorial. http://www.nytimes.com/2007/12/27/opinion/27thu1.html?_r=1&oref=slogin

For the tens of you that read this blog, you know that I recently wrote on my change of heart regarding the death penalty. Post titled (I've Changed My Mind). Please take note that I changed my mind before the New York Times told Texans what they should think about this issue.

The New York Times does not speak Texan. If they were trying to influence the people of Texas, they went about it exactly bassackwards. First, anyone who has the least knowledge of Texans knows that they are independent above all else. Does anyone in New York remember the whole Alamo thing? So you can't shame them by comparison with the rest of the country. To a Texan everybody else is wrong. The fact that Texas accounted for 60% of all executions in the country means to a Texan we administer justice quickly. Something to be proud of. Second, despite everyone in New York thinking that we all want to be like them, Texans don't take advice from New York newspapers. Nothing pleases a Texan, or Southerner for that matter, more than unsolicited advice on how to live and think from a Yankee. (See all of American History)

Seriously, Texas is not without pity. The trend in Texas is for prosecutors to seek the death penalty in less cases and juries are imposing the death penalty less as well. Texas is a proof text for the argument that the death penalty does not deter murders. Despite executing more people than any other state, we have one of the highest murder rates in the country.

My problem with the death penalty is not that some people don't deserve the most severe punishment. My problem is with the margin of error in a capital case. There can be none. Otherwise, we are saying that every once in a while an absolutely innocent man must take one for the team and the guilty person gets a pass. I arrived at this decision without the aid of a single editor from New York.

New York Times vs. Texas. This one is not even close. Go with Texas and you can even give points.

A half day in the life of a criminal defense attorney

2007-12-19T15:39:00.000-06:00

Today between the hours of 8:30 am and 11:30 am I was a busy guy. I began the day in felony court at 8:30 am with a felony DWI client. After meeting with the client and his family, talking to the prosecutor and the court coordinator, I was able to go handle the remaining five clients waiting for me in two misdemeanor courts. Fortunately most of the remaining cases were in one court so I was not physically running between floors of the Tarrant County Justice Center.

The remaining cases were DWI misdemeanors, thefts and even some crap case about an inspection sticker. I had one client in custody who was released because he had already served the time in jail I negotiated. He was happy to be going home for Christmas. Two of the other cases were settled for agreements resulting in no conviction for the clients but disposed of the case. The other two cases were DWI's one on his first appearance and the other on the trial docket.

All appearances were complete by 11:30 am. More importantly, all clients were managed in such a way that they all got to speak with me in a one on one environment, did not feel rushed, had their questions answered and were pleased with the status of things when it was over. Believe me this is not always the case, but today it happened.

The reason this can happen is taking the time to educate the client on what to expect when they are in court. They know when we are in court, I may have more than just their case to deal with but that I have done my homework before we walk into court. I have no interest in wasting their or my time when we are in court. I like it this way and the clients seem to appreciate it as well. The biggest reason clients get upset is lack of knowledge of what is going on or what to expect. I strive for both our sakes not to let that happen. It makes for a half a day in the life of a criminal defense attorney like today possible.

Making a list and checking it twice

2007-12-11T14:38:00.000-06:00

If you thought the title of this post referred to Santa Claus you would be wrong. I am referring to the State of Texas and their sex offender registration. The state of Texas began it's registration program in 1991. The state has amended the law significantly in 1993, 1995 and 1997. Each time increasing the type of offenses and requirements for sex offender registration.

The public policy rationale for the list is that sex offenders are a unique threat to public safety, have a low rehabilitation rate and a high recidivism rate. Further, studies show that sexual misconduct usually begins early in life. The state wants to make it easier to monitor people by law enforcement and inform the public of a threat that may otherwise be unseen. Any member of the public can go and check the location of known sex offenders at a web site set up by the state. https://records.txdps.state.tx.us/DPS_WEB/Sor/index.aspx

So isn't this the modern Scarlet Letter? In a way yes. The public is informed when you move into an area. You are not allowed to live in many communities or within a certain distance of any place that children might frequent. In Texas, depending on the offense committed, you will either be required to register for 10 years or your lifetime.

Can all of this be Constitutional? According to the Texas courts and the U.S. Supreme Court it does not violate the U.S. Constitution or the State of Texas Constitution. Criminal defense lawyers have attacked the statute on appeal from a variety of different angles all without success.

The key issue in representing people charged with sex offenses is whether the offense you are convicted of or plead to is what is called a "reportable conviction or adjudication" under the statute. It can be the difference between not being required to report at all, report for 10 years or the balance of your lifetime. The stakes could not be higher for someone charged with a sex offense.

Finally, the state is extremely serious about the duty to register. Failing to report is a separate felony offense under Article 62.102 of the Texas Code of Criminal Procedure. It is not practical for me to try and go into all the details of this statute. However if you find yourself accused of a sexual offense, consider yourself as having been dropped in the middle of a minefield. You need the help of an experience guide to hopefully get you through safe. One thing is sure. The state is making a list and checking it twice and you don't want to find your name on this list.

The last shall be first

2007-12-06T13:46:00.000-06:00

To quote Mark Twain, "The rumors of my death have been greatly exaggerated". I noticed that it has been quite some time since my last post. I have been travelling for the holidays and working on a felony jury trial.

When I begin to prepare for a jury trial I become single minded in my preparation. I want to be prepared for any eventuality. Nothing impresses a client or judge more than being ready for trial and organized. The clients have paid for it and the judge appreciates that I am not waisting his/her time.

Every good criminal defense lawyer has their own way of preparing. I was once discussing this topic with a District Judge here in Tarrant County. I told him that I start at the end with the jury instructions. He said, "you must have been a prosecutor". When I was a prosecutor, (before I had my road to Damascus experience and switched to defense) I did it that way because it provides a road map to where I need to get with the evidence. As a defense lawyer I still prepare the same way. The law that the jury receives tells me the issues of the case and what I need to point out that the State did not prove.

I believe that the case is usually won or lost in voir dire (jury selection). What the judge is going to read to the jury at the end, I want them to start hearing from me in the beginning. I will incorporate the the same or similar phrases throughout the trial. Sprinkled liberally through my opening statement, questions of witnesses and closing argument. Then when the judge does read the law to the jury, because it has so many of the phrases I used throughout the trial, it has the effect of sounding like the judge is arguing my case for me.

Most criminal defense trial lawyers already know the importance of jury selection and beginning to argue your case as early as possible. In preparing for a jury trial let your motto be "the last shall be first" and let the person who speaks last in the trial (the judge) help argue your case.

I've changed my mind.

2007-11-13T10:43:00.000-06:00

I no longer support the death penalty. There I've said it. If you don't know me, then you might be saying, "he is a criminal defense lawyer, no big surprise there." If you know me, then you know how far I have come to reach this conclusion. I started my career in law as a prosecutor and big supporter of the death penalty. Raised in the South and now living in Texas no one ever really challenged my support of the death penalty because most people where I have lived supported it. Am I now soft on crime where once I was strong? No. I am a father of two children and typical suburban tax paying family. I don't want criminals to harm my family or property any more than any one else.

This journey began with why I supported the death penalty. I supported it because there is a instinctual need in humans who have been wronged to do something about it. An eye for an eye if you will. My thoughts were, if you murder someone and end all of their hopes and dreams for the future, you forfeit your life. You were stronger and you preyed on the weak; so the government, who is stronger than you, will now prey on you. The death penalty served the very important purpose of giving a victim's family a path for retribution without taking the law into their own hands. This I still believe is the strongest argument in favor of the death penalty.

The other argument that it deters similar conduct is entirely a fiction. Most crimes occur in a moment of spontaneous stupid thinking. I really don't believe that someone would put down the knife or drop the gun when they reflect on the possibility that they may get the death penalty. They are not thinking clearly to begin with. Also there is no empirical evidence to suggest it has much affect on those who commit such crimes.

So why the change? Because of a thing called "actual innocence." If you read my post on the difference between "not guilty" and "innocent", then you know that innocent is you arrested the wrong guy. While this happens more than we would like, in non-capital cases there is a remedy. You let the person out of jail and often the state even seeks to make a financial settlement for the wrongful conviction. But in a capital case the penalty is death. If we got the wrong guy and the penalty is enforced, all remedies are closed off. We can't undo death.

You may be saying, "yeah but how often does it happen that we know that we convicted the wrong guy?" According to the Innocence Project, there have been since 1989 in the United States 208 post-conviction exonerations. That means the government presented evidence to a jury, or juries if more than one trial, and twelve citizens unanimously agreed to convict based on the evidence. Due process was followed and all presumptions of innocence were applied. All constitutional and statutory safeguards were followed. Then all appeals were exhausted in state and federal court. And after all that, DNA testing established that THE WRONG PERSON WAS CONVICTED! This is not that a piece of evidence should have been suppressed or some legal technicality was not followed. This is the horror story of you have convicted the wrong guy. The real criminal escapes punishment entirely.

Again according to the Innocence Project, out of the 208 exonerations, 15 served time on death row before being exonerated. When the death penalty is at play it is a zero sum game there can be no margin of error. I can not live with the possibility that I may be voting to kill an innocent man. I can not apply the usual guilt beyond a reasonable doubt standard. The government must leave no doubt on the identity of the killer before I could vote for the death penalty. The old saying, "it is better for a thousand criminals to go free than one innocent man to be convicted" truly applies when death is on the line. If the standard of proof in a death case can leave no doubt, then I am not convinced the government could ever meet that burden. If the government can not ever meet the burden, then why have the death penalty at all? I have just disqualified myself from ever serving on a capital jury (like I would have a shot as a criminal defense attorney), however, I don't believe I am alone in holding this opinion on this issue.

Not Guilty vs. Innocent

2007-11-09T10:29:00.001-06:00

When I am interviewing potential clients, I hear on a regular basis that "I'm innocent". It goes in one ear and out the other with me. I don't care if your innocent. I care if you are "Not Guilty". So what is the difference? If you are innocent, you are absolutely without fault in all aspects. You are a victim of a terrible injustice and everyone should give you their pity. Congratulations you have it! But you still face all the consequences of being charged with a criminal offense. If you are not guilty, you perhaps did not do the crime, there was no crime, they arrested the wrong person, they could not prove their case, any one or combination of the above can produce the not guilty verdict.

In a criminal case you are either "guilty" or "not guilty". When the jury returns with it's verdict it will be one or the other. This is not much ado about nothing. My goal in a criminal trial is to get the jury to say at the end "not guilty" not "we find you innocent". The reason of course is that the law places the burden of proving someone guilty beyond a reasonable doubt on the government. You don't have to prove your innocence. (like you could even do that). The person accused has no burden of proof at all. In fact the trial starts with one fact absolutely established, that the defendant is presumed "not guilty". The government must prove guilt to the highest standard the law allows and if they don't the jury has no choice but to find the defendant "not guilty".

A criminal trial is not about what you as the defendant can prove. It is about what the government can prove. It has been my experience that I have won many more trials when I put on no witnesses or evidence. Instead I shot holes in the government's case and pointed out how weak or how little evidence they produced. Often by putting on witnesses and evidence for the defense, the jury gets confused that the trial is not a battle of who has the most or best evidence. They think, "well we believed that the state's evidence was better or they had more evidence than the defense". We will lose that battle every time. When no evidence is produced by the accused, the law about who bears the burden of proof is underlined for the jury. The court will tell the jury that the law does not impose any burden on the defendant to produce any testimony or evidence. The judge instructs the jury that they must accept that as the law before they begin their deliberations.

So why is this distinction not well known? If you listen to the news media's coverage of a trial, you will hear them talk of innocence. They will say a jury found someone "innocent" in court today. No they did not! They found someone "not guilty". If you are concerned about innocence, then see a priest, rabbi, or clergyman. If you have been charged by the government with a crime and they seek to take away your liberty, you should be concerned about being found "Not Guilty" and see a criminal defense lawyer!

I'm not a potted plant.

2007-11-06T13:42:00.000-06:00

If you are old enough to remember the Iran-Contra hearings, you recognize the title of this post. Those are the immortal words of Brendan Sullivan the lawyer representing Oliver North. When congressmen complained that Sullivan was objecting too much to their questions to his client, Sullivan said, "I'm not a potted plant. I'm here as a lawyer. That's my job”. I was in law school at the time of the hearings. (I know that dates me) I remember laughing and cheering when he said that to a pompous lawmaker.

People don't understand what criminal defense lawyers do. They may think our job is to play along with the system so that the minimum technical requirements of the law are met before we convict someone. They may think that we are double breasted suit wearing slick talkers. (I don't own a double breasted suit) If it seems like we are the only ones slowing down the wheels of justice that are running over someone, that is probably right.

I tell my clients that I am the only person in the entire system working for them. The prosecutor is actively trying to put them in jail or prison. The police are certainly trying to accomplish that. Probation officers would rather you do time than be on probation. Bailiffs usually are wanting the person to plead so they don't have to keep bringing them to court. And of course judges want to clear their backlog of cases from their docket. The criminal defense attorney is the only person asking, "Was there a crime committed and can the state prove it?" This slows down the jail express. We get asked all the time, "why won't your guy plead?" I don't recall ever being asked, "can the government prove your guy guilty beyond a reasonable doubt?"

The point is I'm not just a potted plant! What self respecting lawyer would want to be just the guy who tells you to plead guilty or everyone will get upset with me. As a criminal defense lawyer I have work to do. I strive to treat clients the way I would want to be treated if I were in their position. I would want more than just a potted plant.

Officer I didn't intend to drive while intoxicated.

2007-11-02T10:15:00.000-05:00

Most criminal statutes in Texas have what the Penal Code calls "culpable mental states". This means that generally a person has to mean to commit a crime. In Texas the mental states are: Intentional, Knowing, Reckless, and Criminal Negligence. Generally you can't accidentally or unknowingly commit a crime. (keep in mind that I am discussing things generally not as it relates to a specific statute) However, there are some criminal statutes that require no culpable mental state. The most commonly charged offense in Texas is one of these statutes.

Driving While Intoxicated in Texas does not require a culpable mental state. Texas Penal Code Section 49.11 states, "... proof of a culpable mental state is not required for conviction of an offense under this chapter." So the government does not have to prove at trial that you intended to get intoxicated and drive in violation of the statute. It is like a strict liability crime. Meaning if you do this act, regardless of your mental state, you are violating the law.

So you would think no one could beat a DWI charge. Not true. Criminal defense lawyers win DWI trials all across Texas everyday. Why? Because DWI is an opinion crime. In the officer's opinion you were intoxicated. Your opinion and more importantly a jury's opinion may differ from the officer. Keep in mind the government must prove a person guilty beyond a reasonable doubt. These type of cases are won on whether the person arrested was actually "intoxicated" as the law defines it, not whether they intended to break the law by driving while intoxicated.

Are there vampires with badges?

2007-10-30T10:52:00.000-05:00

Let me tell you a very scary tale. There are increasing numbers of very powerful creatures that roam the highways of Texas and they want your BLOOD! They come out mostly at night but not exclusively. These creatures are easily identified by their dress and vehicles. They usually wear blue uniforms with badges and drive cars with lights on top. You guessed it, they are police officers.

Seriously there is an alarming trend of police officers getting search warrants for blood after a person has refused to give a sample of his breath or blood. I call these forced blood draws. We all know that enforcement of the driving while intoxicated laws is a priority with the state and most citizens. However, how far are we willing to allow the government to go in the name of necessity? Can they take without your consent the very life giving blood running in your veins just to make a misdemeanor case?

The law allows for the police to present probable cause to a judge and obtain an evidentiary search warrant. There are many requirements for the search warrant to be properly issued that I will not go into here. Usually search warrants are used for searching a residence or automobile. The law is the same for a search warrant for evidence on a person. This is not a new thing. We see it for DNA, fingerprints even dental impressions. What appears to be new is the willingness to go to great lengths to obtain by compulsion what a citizen refused to offer in a misdemeanor case.

I have tried DWI cases where the prosecutor was explaining why they did not have scientific evidence of blood alcohol levels. They usually say something like "he didn't want you to have that evidence and refused." I have heard prosecutors in voir dire say, "this is America, we don't hold people down and take their blood." Really! Apparently either we are no longer in America or the government has changed tactics because now they do.

Remember to be careful and have a safe Halloween. However, know that there are vampires with badges who want your blood!

Poster boy for the right to counsel.

2007-10-26T14:38:00.000-05:00

The right to counsel is guaranteed to citizens by the 6th Amendment of the U.S. Constitution. There is a reason why the framers of the Constitution placed this right in the Bill of Rights. Also if you have watched any cop show on TV, you know that within the Miranda Warning is a specific warning of this right before you make any statements. You would think that a United States Senator would, of all people, know the importance of his right to counsel. Well apparently not. Just because you ... oh lets say, WRITE LAWS FOR A LIVING! does not mean that you understand them or appreciate them. U.S. Senator Larry Craig now finds himself convicted of a misdemeanor offense and hiring lawyers to try and undo the damage he did by pleading guilty.

The point I am making is that Bill of Rights exists for a reason. Each right is an answer to a particular problem that the founders knew existed and were common. Why do you need a lawyer present to advise you on any statement you make to the police? Because you don't know your rights and a lawyer does.

The police can lie to you about the evidence they have or what witnesses have told them and the courts have approved of such tactics. In short you do not know what evidence the police have nor what they need from you to prove their case. They are trained to use tactics to get a person charged with a crime to confess or make a statement. They just, "want to hear your side of the story..." No they just want to make their case against you and they need your help.

If you invoke your right to counsel, this all stops. Any statement made after you invoked your right to counsel is not admissible in trial against you. There are exceptions to this general rule. Generally, invoking your right to counsel is the same as a cross to a vampire.

So why did a Senator not know this? He was probably more worried about the publicity and embarrassment that the original charge would cause. So if a United States Senator can be convinced to give a statement or plead to a lesser charge, what chance do the uneducated have in that situation. The 6th Amendment protects both equally, unless they waive it.

So whether you are accused of "having a wide stance" in a men's room in the airport or any other crime, remember you have the right to counsel before making any statement. Don't become the next poster boy for the right to counsel.

But she's not my wife...

2007-10-23T13:34:00.000-05:00

People who are charged with Assault Family Violence in Texas are surprised to learn that "family" does not really mean family. The actual charge is Assault Bodily Injury found in the Texas Penal Code section 22.01 (A)(1). The statute reads, "A person commits an offense if the person: intentionally,knowingly, or recklessly causes bodily injury to another, including the person's spouse;..."(emphasis added). Many clients have said to me "but she was not my spouse, how can it be family violence?"

So where does the "family violence" come from? Believe it or not the definition used in the criminal case comes from the Family Code, specifically Section 71.004. The Family Code states: "Family violence" means: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;You should notice that the Family Code definition of "family violence" includes members of household. So roommates, girlfriends, boyfriends, children, anyone who could be determined to be a member of the household becomes "family" in Texas for family violence purposes.

The criminal assault trial proceeds as any other assault case. Assuming there is a conviction, then the Code of Criminal Procedure Art. 42.013 requires the court to make a specific finding that the offense involved family violence. If that happens, there are a number of lasting negative consequences that kick in besides just having an assault conviction.

If you are charged with assault bodily injury family member, talk to a criminal defense attorney who knows what the lasting negative consequences are and can explain them to you.

Hot Dogs and Jury Verdicts

2007-10-17T10:28:00.000-05:00

I love to try cases to a jury. The reason I do what I do is because there is a much better chance of having a jury trial practicing criminal law than most other areas of the law. In my 17 years of practicing criminal law, I have tried in excess of a hundred jury trials. This probably makes me weird to most other attorneys. I see attorneys who live in fear of ever having to appear in a courtroom much less try a case to a jury. I did not go to law school to plead people out and make appearances in court only. I would do something else if that was all being a criminal defense attorney meant.

Criminal jury trials are the stuff that TV shows are based on. They make the news, fill movies and novels. Why? There is sometimes, not always, interesting facts or a story. But the reason they are so compelling is the built in drama of when the jury returns with the verdict. No one knows what they have done until the court announces the verdict. Even the most mundane case is compelling drama if only for that minute before the verdict is read.

Despite my love of trying jury cases, it is not always in my client's best interest to go to trial. Sometimes (only sometimes) I represent people who are guilty. I know this comes as a shock to you! Unfortunately I don't get to pick the facts of the cases I represent. Those are already in place when I start my representation. As much as I might want to get some new facts more favorable to my client, the cards have already been dealt. However, like poker, the way you play the hand is everything. If the side with the most or best facts always won, the state would prevail even more than they do.

Going to trial is interesting and often exciting. However when it is your life and liberty on the line, you might not want interesting and exciting. You want certainty that you are not going to prison or can keep a conviction off your record. Certainty comes through the plea bargain process and hard work by your criminal defense attorney. The one thing you give up by going to trial is certainty. Any trial lawyer worth listening to will tell you that, you can never know what a jury is going to do after a trial. I have won cases that on the facts I should have lost and the reverse is true. The difference was the jury and who served on that particular jury. In fact you could try the same case the same way with the same witnesses in front of two different juries and get different results.

When a jury retires to deliberate on the case, defense lawyers dream that the deliberation will look like the movie Twelve Angry Men. Prosecutors hope they spend more time fighting over who will be foreman than the facts of the case. The truth is we don't know what testimony or fact they will seize on and think very important or even decisive. So what do criminal jury trials have to do with hot dogs? I was once told by an old lawyer that jury verdicts are like hot dogs. You don't want to see what goes into making one.

But it was just a little weed...

2007-10-08T10:23:00.000-05:00

Many people have run afoul of criminal laws with marijuana. Young people, celebrities and even U.S. Presidents have an experience with using marijuana. So it is no big deal right? Not so fast. I will focus on the consequences of a conviction for misdemeanor possession of marijuana. Keep in mind, if you give some to a friend or sell it, we are talking about much more serious consequences. However, I want to discuss just a mere misdemeanor possession conviction.

In Texas a person who knowingly or intentionally possesses a usable quantity of marijuana has violated the law. The penalties are graduated by the amount possessed. If you have two ounces or less it is a Class B misdemeanor. You can receive up to 180 days in county jail and a fine up to $2,000.00. The jail time is what most people worry about.

You might be thinking, well that is not that bad, I will just take probation. OK you avoided jail but at what cost. Now let me explain the hidden consequences of this conviction. You now have a criminal conviction on your record that can not be removed. It will follow you the rest of your life. Every time you apply for a job, you will be asked if you have ever been convicted of a crime and you will have to answer "yes" and explain. Many apartment complexes will not lease to people with a drug conviction. If you want a job with any government agency or that requires a security clearance, that is probably going to be much more difficult to get now. These are some of the social consequences.

What are the legal consequences in addition to possible jail time and fines? If you are an adult say goodbye to your Texas drivers license for 180 days. If you are a minor, it is gone for one year. You may lose your right to receive or continue to hold a business or professional license issued by the state. You can not possess a firearm for five years following your release from probation and you may not obtain a concealed weapon license. If you are an alien, you are possibly going to be deported.

Most lawyers, who are not criminal defense attorneys but dabble with practicing criminal law, do not know these hidden consequences. When you are charged with a crime, even if it was just a little weed, hire a criminal defense lawyer. Any lawyer can plead you to probation, but will he or she know the hidden effects?

To blow or not to blow.

2007-10-02T10:24:00.000-05:00

In Texas DWI is the most common criminal charge. On any given day in the Tarrant County Courthouse you will find trials involving people accused of DWI. When I am in social settings or groups and people learn that I am a criminal defense attorney, the question I always get asked is, "if I am stopped for DWI should I blow into the machine?" Why is this question so common among people who are not "criminals"? These same people don't ask me, "if I am caught breaking into a building or if I am caught robbing a bank should I ..." The reason is that they know that the odds of being stopped and questioned by police about drinking are much greater than the other situations mentioned.

You might not know this but having a driver's license is a privilege not a right. As a result the State of Texas may set up rules about who they give licenses and when those can be taken away. One of these rules is the implied consent statute. Texas Transportation Code Sec. 724.011 requires drivers arrested for DWI to submit a sample of their breath or blood for testing. You are deemed to have consented to giving a sample merely by driving on the roads of Texas. However, you have the physical ability to refuse to comply with the officer's request. There will be consequences to your driver's license--namely a suspension of your privilege.

Criminal defense attorneys know these rules and laws and can help you navigate the minefield that is a DWI charge. So we come back to the question, "should I blow?" As with most things involving the law, the answer is it depends. However, it is always best not to provide scientific proof against yourself. Remember the state has the burden to prove you guilty. Why help them convict you?

The two sweetest words

2007-09-26T13:53:00.000-05:00

Welcome to the new criminal law blog for Hendricks & Weathers law firm. When trying to decide on a name for the site, I thought about the goals of criminal defense lawyers. Many people might think that the name I gave the site is a contradiction. If you are found "not guilty" some might say you thwarted justice and harmed the Constitution. Nothing could be farther from the truth. If you were found "not guilty" by a court or jury, you have experienced the Constitution at work.

When we attorneys are admitted to the bar, we take an oath. We swear to support and defend the Constitution of the United States and our particular state. Our duty is to the constitution not the government. You might be surprised to know that the government makes mistakes all the time, i.e. arrests the wrong person, searches the wrong house etc. I don't think it is necessary to list the long list of mistakes our government has made in other areas. There is a reason for this. The government is made up of people. People who are capable of and do make mistakes all the time. Not only that but, people serving in government come and go. However, our Constitution endures through wars, depressions, Republican administrations and Democrat administrations.

When I represent a person accused by the government of violating the law, I work hard to make the government meet it's constitutional burden of proof beyond a reasonable doubt. It is comforting to know that when the full weight of the government is bearing down on you, the government must comply with the constitution. You have the right to force the government to prove it's case to a jury of your peers. You must be given due process of law. You have the right to professional legal counsel. You can not be made to give evidence against yourself. You are presumed "not guilty" until and unless the government convinces a jury that you are guilty beyond a reasonable doubt. This is your Constitution at work!

When I hear the two sweetest words a criminal defense attorney can hear, "not guilty", I know that I have been true to my oath to support and defend the constituion and liberty survives.