Forgive and forget

Deer Park native Andy Pettite was one of the heroes of the Yankees' world series winning team. Pettite, as many of y'all remember was implicated in the Mitchell Report as using illegal performance enhancing drugs. Pettite promptly owned up to cheating.

Alex Rodriguez was another of the Yankees' heroes in their championship run. Over the off-season A-Rod confessed that he used steroids during a three-year stint with the Texas Rangers. He was torn apart by the press for his admissions.

One must wonder if Roger Clemens had been honest and upfront when the accusations began flying whether he would have taken part in the Yankees' 27th World Series championship. While Pettite and Rodriguez are placed on pedestals by Yankee fans, Roger Clemens is scorned.

Clemens misread the public and played the wrong card when he was revealed as a steroid user. History is replete with American icons who messed up, 'fessed up and went back to being adored. The American public is quick to forgive and forget the transgressions of celebrities.

Had Roger the Dodger not been so arrogant and had he thought about his course of action for half-a-minute, he would have realized his aggressive denial was a mistake. I wonder how he felt watching his former teammates win the series.

My daughter and I

Last night my oldest daughter got sick. To be on the safe side, my wife and I decided not to send her to school today. That left us in a quandary because my wife teaches at the local community college on Tuesday and Thursday mornings and I had to be in court this morning.

So I made the executive decision to take my daughter to work with me. After we dropped off my youngest at school we headed out to the west side to the Justice of the Peace court on Clay Road for a traffic ticket case. This particular court is one of the busiest in the state -- and one of the slowest.

My daughter brought her Leapster and sat in a chair at the front of the courtroom that a very kind woman gave up for her (I didn't catch her name, but, if you're reading this, thank you) while I "worked" the case.

My client's case was dismissed a short time later because the officer forgot to appear (the ticket had been written 2 1/2 years before) and my daughter and I were on our way home after less than an hour.

Along the way she met some of my colleagues and got a little taste of what her daddy does for a living and I got to show off my daughter. I think I might start bringing her to court more often...

Why doesn't this surprise me?

According to the General Accounting Office the federal government is unlikely to recoup our full investment in either General Motors or Chrysler. In order to make a full recovery, both companies would have to attain market capitalizations (number of shares X price per share) neither had achieved before their bankruptcies.

Surely someone in the Treasury Department was aware of this at the time the bailouts were being rushed through Congress. The money the government cannot recoup now becomes a taxpayer subsidy of the shareholders of the born-again companies.

In order to recover taxpayer funds handed over to GM , the new company would need a market capitalization of $66.9 billion. The highest capitalization GM had achieved prior to the bailout was $57 billion back in 2000. Chrysler would have to achieve a market capitalization of $54.8 billion for taxpayers to get their money back. Prior to its acquisition by Daimler in 1998, Chrysler was capitalized at $37 billion.

There was a reason the two car makers couldn't round up enough private investment to survive -- investors knew GM and Chrysler were dogs and they weren't willing to put up their cash. Cue los federales.

We can't afford to put more money into health care for the poor, the old, the infirm and children, but we can afford to hand money over to investors. Some things never change.

Being first has its advantages

A special shout-out is warranted for David DiSalvo, the author of the very interesting blog Neuronarrative for the material used in this post...

Is there a psychological advantage to be first? According to Psychological Science, there is.

Using wine as the test medium, researchers asked hard-core wine drinkers (as in, people who are serious about their wines, not serious about drinking) and ordinary

wine drinkers which in a series of wines they preferred. Participants were given between two and five glasses of wine to taste. At the end of the tasting, drinkers were asked to identify their favorite glass. The participants weren't told that all of the wines they tasted were from the same bottle.

In the end, most participants favored the first wine they tasted (primacy) - regardless of their knowledge of wines. Interestingly enough, high-knowledge drinkers also seemed to prefer the last glass of wine they tasted (recency).

Researchers noted that high-knowledge drinkers would rate the most recent glass to the last one tasted -- putting an emphasis on the last glass.

In trial preparation, always go with your strongest argument first. It is through this argument that you are asking the jurors to filter the evidence they received during trial. Whatever you do, don't end with a weak argument. If you think the argument's weak -- leave it out. That last argument is the last thing the jurors will hear from you and you don't want it to compare unfavorably with what came before.

Zen and the art of lawnmower repair

This weekend I set out to mow the yard at our new house for the first time. Since I've lived in apartments and townhouses for the past 18+ years, I've never owned a mower. My parents graciously donated their old mower to our cause after we bought our house. They parted with it because they've used a lawn service for the past five or six years and the mower has just sat parked in the garage for that time.

On Saturday I tried to start it up but could never get the motor to turn over after yanking on the cord. There was gas in the tank and there was a spark plug in the cylinder and nothing was binding the blade. I gave up for the day and prepared for battle the next morning.

After a brisk 13-mile run on Sunday I stopped at the gas station and filled my bucket with gas. I then headed home and filled the tank of the mower. Still I couldn't get the blasted thing to turn over. I pulled the hose leading to the carburetor and made sure the gas was flowing through -- it was. Then I pulled the spark plug. It was oily so I cleaned it up. Then I aimed the brake cleaner spray into the cylinder and fired. I put the plug back in and popped on the wire. Still nothing. Next I changed the dirty air filter. Still it wouldn't turn over. Next up was the exhaust chamber. I pulled it, blew it out and rebolted it.

I pulled the cord and, finally, the engine turned over and the mower was up and running for the first time in over five years.

Now I know y'all must be asking what on earth does that story have to do with criminal defense practice. I'm glad you asked.

Whenever an engine isn't starting it's either because it's not getting fuel or it's not getting a spark. To find out which you have to test each part of the system until you've made your determination. And that's true whether it's a car's engine or the engine on a lawnmower.

In preparing to defend a case you have to run through the same checklists over and over again. On a DWI case you first look to determine whether the officer had a valid and legal reason to stop your client. Next you watch the video and look for errors the officer made on the field sobriety tests and for things your client did that demonstrate he wasn't intoxicated. If there's a breath test you go through a checklist to determine if there are grounds to suppress the test result. Same thing for a blood test.

To be successful you must be methodical during the preparation of your case. What a jury sees is the end result of countless hours of case preparation.

A dose of reality

A lot of times on this blog I talk about preparing and trying cases in the abstract. Thanks to Anne Reed (author of the terrific jury-ology blog, Deliberations), we have a blog that "keeps it real."

Steven Hirsch's blog Courthouse Confessions is at once entertaining and disturbing. Mr. Hirsch interviewed people who were released from custody and his blog documents their comments about what put them behind bars and the effect of incarceration.

It's a good reminder of how individuals are affected by our criminal justice system.

State trooper, under investigation for use of excessive force, resigns

The Texas Department of Public Safety today announced that State Trooper Arturo Perez received a preliminary notice of discharge for an incident that occurred on the Dallas North Tollway on October 10 of this year.

According to the department's press release, Trooper Perez' in-car video shows that he used excessive force during an arrest on the tollway. Texas Rangers will present the results of their investigation to the Dallas County District Attorney's Office.

The use of excessive force could result in a criminal charge of official oppression.

Trooper Perez resigned before the termination could be completed.

Do as I say, not as I do

Hmmm.

It appears that the City of Houston is using a defense to toll tickets issued by the Harris County Toll Road Authority that doesn't fly for drivers who receive red light camera tickets.

Apparently the city owes the toll road authority $13,851 in unpaid tolls, fines and collection fees for 552 citations issued to 122 different city-owned vehicles. No wonder the county put the kibosh on the city's request to withhold automobile registrations for red light camera scofflaws.

Both the county and the city issue citations to the registered owner of the vehicle in question; for this reason the matters are strictly civil and are not included on a person's driving record. An employee of the city's finance department sent an e-mail to the Harris County Attorney's Office stating that the citations did not include photographs of the drivers of the city-owned cars and that the citations are the responsibility of the individual drivers and not the city.

Oops.

Giving credit where credit is due

Yesterday's post on the New York attorney free speech case neglected one important detail. Mr. Bluestone's attorney was none other than the author of Simple Justice, Scott Greenfield.

Said Mr. Greenfield in an e-mail from earlier today:

What a great victory for attorney free speech. I wonder who the hard-working, yet handsome and urbane, attorney who represented Bluestone might be? We owe him a deep debt of gratitude.

We all hear it when we lose a case -- here's some credit for a great win, Scott.

A change in my comment policy

Up until a couple of days ago I permitted any and all comments on my blog -- I believe that the free exchange of information and opinion benefits everyone. However, due to the increase in spam comments and criticism from anonymous posters, I have (regretfully) made the decision to moderate the comments.

My rules are quite simple: all comments will be approved unless they are spam or anonymous criticism. Y'all know who I am. I don't hide behind a mask of anonymity. I criticize, challenge and call others out for their comments or behavior -- and I don't mind being on the other end of it, either. But, I firmly believe that if you're going to criticize someone else -- you should at least be intellectually honest enough to do it under your own name.

I understand there are reasons some people won't post a comment under their real name -- but if you want to be critical of the content on this blog, that's what you're going to have to do.

State bar advertising rules may not apply to blogs

In November 2003, New York malpractice attorney Andrew Bluestone began faxing out copies of his one-page Attorney Malpractice Report. The faxes contained contact information for Mr. Bluestone as well as an essay dealing with some facet of attorney malpractice litigation.

New York solo practitioner Marc Stern received 14 of these faxes between November 2003 and March 2005. He eventually filed suit, alleging that Mr. Bluestone's faxes violated the Telephone Consumer Protection Act of 1991 as well as the Junk Fax Prevention Act of 2005.

In his defense, Mr. Bluestone argued that the faxes were not legal advertisements because the newsletter was an informational message and the contact information was merely an "incidental advertisement."

The trial court disagreed and ruled that the faxes were legal advertisements for Mr. Bluestone's services and awarded Mr. Stern $1,500 for each of the faxes he received.

In June of this year the New York Court of Appeals reversed that ruling, holding that the faxes were informational messages per the FCC and not unsolicited advertisements.

According to Matthew Goldberg of the American Bar Association's Litigation Division, this decision is important to legal bloggers (or blawgers) because it could affect state bar association's attempts to regulate attorney speech on the internet. In fact the Florida Bar has said that websites "cannot be easily categorized as either information at the request of a prospective client...or as advertising in a medium that is totally unsolicited and broadly disseminated to the public."

So, is this blog advertising? Or is it informational? In fact, are all legal blogs advertising or are they a source of information? Should state bar associations be able to regulate the content that appears on a legal blog? More importantly, should state bars be able to regulate the content of any blog that is authored by an attorney - regardless of the blog's subject matter?

Austin city council says no to vampire cops

The Austin city council passed a resolution this past week stating that it is the council's "clear will" that Austin police officers not personally take blood specimens from motorists arrested for driving while intoxicated. Council members originally sought a vote on a proposal that would have directed the city manager to block officers from collecting such samples from drivers.

After being told by the Austin City Attorney's Office that such a proposal would conflict with provisions in the criminal code authorizing officers to use all lawful means to enforce the law, the council decided to vote on the non-binding resolution.

Austin Police Chief Art Acevedo told the city council that the department had abandoned plans to train officers to become licensed phlebotomists.

The new resolution directs the City Manager to develop clear guidelines by February 2010 for the collection of blood specimens by Austin police. Meanwhile, the Austin Police Department is in talks with the Travis County Sheriff's Office about training personnel at the county jail to draw blood from DWI suspects.

Powerlessness

As attorneys we are given a certain degree of control over other people's lives. This is true if you're a criminal defense attorney, an assistant district attorney, a personal injury attorney, a divorce attorney or a property attorney. Someone comes into your office, sits down across a table from you and grants you the power to make certain decisions on their behalf.

One of the hardest things for an attorney is to accept that there are some situations over which we have no control. Monday night was such an occasion for me.

We were in the process of moving and our garage was full of stuff that had not yet found its way inside our house. My oldest daughter had a shoe rack hung over the back of the door leading from the house to the garage and was putting her shoes in it.

I was in the other end of the house getting our internet connection up and running when I heard a shattering sound and the screams of my daughter. My wife couldn't see what happened because she couldn't open the door to the garage. When I ran into the garage I saw my daughter standing in a pile of broken glass from the table upon which she had been standing. I could also see the blood on the floor.

My wife and I cleaned her feet, wrapped them and drove off to the emergency room. By the time we got there my daughter had calmed down and I carried her inside in my arms. Everything was fine as the doctor examined her feet until she had to probe inside the cuts in search of glass shards. She told us she had to inject a local anesthetic into our daughter's feet.

I have never felt so powerless as I did that night holding my little girl tight while she screamed in pain as the doctor injected the anesthesia. There is nothing worse than looking into your child's eyes and telling them there is nothing you can do to stop the pain.

It's a very humbling experience and it reminds us of how little about our world we actually have control over.

No such thing as a free stadium

The Houston Sports Authority, after telling voters that their taxes would not be affected by the new wave of stadium-building, is now having to go back on its word as balloon payments have come due on $117 million in bonds.

The bonds for these playpens for the rich owners of Houston's sports franchises were insured by MBIA - a firm that was downgraded by analysts. The downgrading causes investors to turn around and run away. The bonds were subsequently bought up by JP Morgan Chase and converted into a loan. Now the piper is calling.

The only options seem to be acquiring a line of credit either through JP Morgan Chase or UBS -- but either option would cost the sports authority $7 million a year.

So now Harris County taxpayers are going to be asked to pony up to pay down the debt on stadiums that were paid for with public funds yet handed over to private interests. It's called reverse welfare and the only beneficiaries are Drayton McLane, Leslie Alexander and Bob McNair.

Minnesota man busted for DWI in his recliner

Here's something light for your weekend...

Dennis Anderson of Proctor, Minnesota pled guilty to driving while intoxicated after he crashed his motorized La-Z-Boy recliner into a parked car after leaving a bar. Mr. Anderson's recliner was powered by a converted gasoline lawnmower engine and was capable of speeds of up to 15 mph.

Mr. Anderson's alcohol concentration was .29, more than 3 1/2 times the legal limit in Minnesota.

Proctor police impounded the recliner and intend to sell it at the next police auction.

Harris County prosecutor accused of hiding exculpatory evidence

Harris County Assistant District Attorney Denise Oncken was accused by defense attorneys of hiding Brady material in a child sexual assault case. Ms. Oncken is the chief of Harris County's Crimes Against Children division.

According to defense attorney Bill Stradley, Ms. Oncken hid evidence that the alleged victim originally said her assailant was black, not white.

First Assistant District Attorney Jim Leitner, a former defense attorney until his appointment by Pat Lykos, denied the allegations. Mr. Leitner also added that even though defense attorneys ask to review prosecutors' files -- they often only spend a fraction of the time that he thinks it should take to process the data.

Obviously Mr. Stradley spent enough time reviewing the file to locate the evidence that the state failed to disclose.

A hearing on the matter was scheduled for today.

UPDATE:

At today's hearing, Visiting State District Judge Van Culp ruled that the prosecutor should have turned over the information about the alleged victim's original identification. The judge then ruled that because the information was discovered prior to trial that a mistrial was not warranted.

City loses bid to keep red light camera documents secret

Earlier this month, State District Judge Tracy Christopher ruled that the City of Houston cannot keep documents regarding the city's red light camera program secret. Following a lawsuit filed by Houston attorneys Randall Kallinen and Paul Kubosh regarding the city's refusal to release records documenting an increase in the number of accidents at intersections controlled by red light cameras, the judge ordered the city to release most of the requested documents.

The documents are to remain confidential, according to the order, pending an appeal by the city.

The documents were requested after it came to light that the Houston Police Department asked the authors of a city-commissioned study not to count accidents that occurred more than 100 feet from a monitored intersection or accidents at monitored intersections in which no red light camera citation was issued.

Former Dallas crime lab employee to file whistleblower suit against lab

A former forensic biologist in the Southwestern Institute of Forensic Science (SWIFS) lab in Dallas has announced he will file a "whistleblower" lawsuit against the institute, alleging that he was fired in retaliation for pointing out problems with Dallas County's crime lab.

"The evidence may have blood flakes on them or hair and fiber on them," Nulf explained. "If you have a box fan going in the background, those fibers could be blown across the evidence, lost forever or cross-contaminated into someone else's evidence."

According to Dallas County officials, Chris Nulf, Ph.D., was fired from SWIFS for insubordination, unsatisfactory progress, being unproductive and not following procedures. Dr. Nulf begged to differ.

Dr. Nulf, in a lawsuit to have been filed today, noted the following problems in the lab:

• an outdated protocol manual used by analysts to conduct their daily work;

• equipment that isn't calibrated;

• analysts using expired chemicals;

• criminal case files stored in an unsecured hallway; and

• a box fan which blew over areas where evidence is examined.

Dr. Nulf and his attorney, Raul Loya, believe that cross-contamination and improperly maintained equipment raise questions about convictions obtained largely as a result of testing performed at SWIFS.

Being tased could be bad for your heart

Taser International, the manufacturer of the Taser, has just issued a warning that firing the 50,000 volt device at someone's chest could cause a "adverse cardiac event." The warning does state that the risk is minimal.

Only one problem here... the Taser is designed to be a non-lethal alternative to shooting someone with live ammunition and the most obvious target is the person's torso, according to 30-year Houston Police Department veteran Mark Clark.

In our current litigious culture, one must wonder whether or not Taser International knew that being jolted by the Taser could cause cardiac arrest all along. The warning could be an attempt by the manufacturer to pass along the blame for "adverse cardiac events" to the law enforcement agencies employing the Taser.

US Supreme Court says anonymous tips are not enough to justify a DWI stop

The United States Supreme Court voted 4-3 to deny review in Virginia v. Harris, a DWI case in which the Virginia State Supreme Court held that in order to justify a traffic stop based on an anonymous tip, the officer must observe dangerous driving.

In Harris, an anonymous tipster informed Richmond police that Joseph Harris was driving while intoxicated. The arresting officer, acting on this tip, stopped and arrested Mr. Harris for DWI, without observing any unsafe driving or traffic violations. Mr. Harris was convicted at trial for driving while intoxicated, but that conviction was overturned by the state Supreme Court.

In a strongly worded dissent, Justices John Roberts and Antonin Scalia decried the Court's denial of cert. Justice Roberts claimed the ruling gives drunk drivers "one free swerve" before they can be stopped legally by police. Justice Roberts continued: "It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check."

If you want difficult, Justice Roberts, try explaining to our children that we sacrificed the presumption of innocence, privacy and due process rights as well as constitutional protections for citizens in the name of public safety. Men and women have died defending those rights and protections and we gladly give them away in order to fight our bogeymen -- drunk drivers and terrorists.

It's easy to take away rights, liberties and protections for those who commit unpopular crimes and support unpopular causes -- but if we don't stand up and protect those rights now, one day we will wake up and they will be but a distant memory.