Wednesday, July 23, 2014

Sleeping is not necessarily operating

In every DWI case a defense attorney must assess two issues - first, was the client intoxicated and second, was the client operating a motor vehicle. Most trials involve the issue of intoxication as the motorist was stopped by a police officer after that officer had seen the motorist violate some provision of the transportation code.

During voir dire, prosecutors attempt to lower their standard of proof by convincing prospective jurors that being intoxicated is more akin to having a buzz than it is to being drunk.

Rare is the case that turns on whether or not the accused was operating a motor vehicle. We've all seen news accounts of the man arrested for driving a recliner (with a motor) down the street while drunk and of the man arrested for being drunk while riding his lawnmower down the road. There was even an unfortunate guy out in Austin was arrested for DWI because he was drunk while riding his horse down the street.

Then there's the instance in which someone is sleeping behind the wheel of a car with the engine on. Sometimes the car is in a parking lot or on the side of road. Sometimes the car is sitting at an intersection. Sometimes the transmission is engaged and the driver has his foot on the brake.

Chad Murray was sleeping in the front seat of his truck with the engine running and the transmission in park. He was parked in a private drive with the wheels on one side sitting on the shoulder - no part of his truck was on the actual road. There were no cans or bottles of alcohol in or near the truck but Mr. Murray was apparently intoxicated (though that was not an issue on appeal).

When questioned by police Mr. Murray did not admit to driving.

A Hill County jury was convinced that Mr. Murray had been operating his truck and they found him guilty of driving while intoxicated. Mr. Murray then appealed his conviction to the Amarillo Court of Appeals arguing that the evidence was insufficient to support the conviction, namely that there was no evidence that he was operating a motor vehicle.

In Murray v. State, No. 07-13-00356-CR (Tex.App.--Amarillo 2014), the Appeals Court found in favor of Mr. Murray, reversed his conviction and rendered a judgment of acquittal. The Court did agree that it was reasonable to infer that at some point Mr. Murray had been operating his truck - but the Court pointed out that there was no evidence that he was intoxicated when doing so.

Tuesday, July 22, 2014

Judge declares death penalty unconstitutional in California

Earnest Dewayne Jones was sentenced to death in California for raping and killing his girlfriend's mother in 1992. He is one of more than 900 inmates in California who have been sentenced to die since 1978. Over that time only 13 executions have taken place, none since 2006.

Last week U.S. District Judge Cormac Carney ruled in Mr. Jones' favor when he declared that California's use (or non-use) of the death penalty was unconstitutional. He found that carrying out so few executions and forcing inmates to sit on death row for decades didn't serve as a deterrent. In fact, it made the use of capital punishment arbitrary.

From NPR:
"No rational person can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society," Carney wrote.
Judge Carney's decision marks the first time a judge has declared capital punishment unconstitutional due to the delays in carrying out executions. Of course death penalty supporters got their argument backwards. Kent Sheidegger of California's pro-death penalty Criminal Legal Defense Foundation found the delay in carrying out executions wasn't a violation of inmate's rights but a violation of victims' rights.

Maybe Mr. Sheidegger and the members of his group could point out to me where in the Constitution or the Bill of Rights there is any reference to the concept of victims' rights. You can find it in various state constitutions as state legislators never pass up an opportunity to pander to the right in order to appear tough on crime, but the concept has no legal basis.

Criminal activity is prosecuted by the state, not the victim. The concept is that a person who commits a criminal act has violated a social compact and should be punished by society for his or her actions. There is no room in such a scheme for the revenge - in fact, the entire point of having the state prosecute crimes is to take revenge out of the equation entirely.

Our constitutional protections for the accused are designed to ensure to protect the individual from the awesome power of the state - they are to apply regardless of the level of offense. Our jury selection systems are designed to prevent those directly affected by a crime from deciding the fate of the accused.

But then again, the death penalty has never been about anything more than revenge.

Monday, July 21, 2014

Perry pulls a 180 on immigration

Once upon a time Gov. Rick Perry had a sensible position on immigration. He knew, as did most Texans, that Texas has a unique relationship with Mexico and that it was the influx of immigrant labor that kept the cost of living lower in Texas than in other states.

Of course that raises the issue of whether or not immigrant labor was used by employers as a tool to keep down wages and deter union membership.

Immigrants who crossed the border without the permission of the US government took jobs that no one else wanted. They paid taxes (remember, there is no income tax in Texas) whenever they bought something or paid their rent (part of the rental income a landlord receives goes to pay property tax).

Gov. Goodhair even realized that efforts to raise tuition rates for the children of undocumented workers only served to discourage them from attending college because of the cost. He understood that making a college education more attainable benefited everyone in the state.

But then the Fair-Haired One decided he wanted to follow W to the White House. The national Republican Party was virulently opposed to immigration because the less white the country becomes, the less pull Republicans will have. They are fighting to preserve a vision of America that never really existed.

Now, fearful of pissing off the money lords of the GOP, Gov. Perry has flipped his views on immigration. Now he is opposed to any easing of restrictions. His latest move is to activate some 1,000 members of the Texas National Guard to patrol the border to prevent more children from Central America making it to Texas.

These children who are flooding detention centers in the Rio Grande Valley aren't criminals. They are coming here in search of a parent or they are being sent by their families to get them away from the violence and poverty of their home countries.

We don't need to militarize the border. We don't need to expedite hearings so we can deport children. What we need to do is sit down and figure out a rational immigration policy - one that takes reality into account. For far too long our policy consisted of allowing in anyone from a country whose government we disagreed with and slamming the door shut for immigrants from countries with friendly governments.

Many of these children are refugees and should be afforded the same protections as any other refugee from any other part of the world. We will be judged on the basis of how we treat the most vulnerable people in this country. Right now I don't think the verdict would be favorable.

Friday, July 18, 2014

A little side trip on the way to Georgetown

Yesterday was a big road trip day. I had to be out in Sealy in the morning and then in Georgetown (north of Austin) in the afternoon. So, after I dropped my youngest daughter off at her day camp I headed out I-10 toward Sealy.

It didn't take too long to hash out the outline of a possible deal for my client so I had a bit of time to kill. I could've headed up Highway 71 to Austin and found a place to eat before heading up I-35 for court or I could do something a bit more fun.

I chose the latter. I ended up taking the long way to Williamson County by heading all the way out to Luling, Texas for some barbecue.

For my money there are only two ways to serve barbecue. You either do it cafeteria style or you do it meat market style. Luling City Market, of course, serves it up meat market style. You walk in the front door and head straight to the back of the restaurant. Behind a door that asks you to keep it closed are two massive pits. Briskets, ribs and sausage links cover the grates. You buy your meat by the pound and it's served on a big piece of butcher paper with some white bread on the side. Those of y'all who don't eat barbecue religiously probably don't understand why white bread - which is garbage for anything else - is the perfect bread for barbecue.

Since we were in Central Texas the brisket was cooked Central Texas style and that means a rub that relied heavily on salt and pepper. Yummy.

I got a quarter-pound of brisket and one sausage link and headed out into the main dining area to find a table. I then had to go to the counter in the middle of the restaurant to get my beans and sweet tea.

The brisket was very moist with some healthy layers of fat. It had a good smoky flavor to it and, despite its moistness, didn't fall apart upon contact. If you look closely at the picture of the pits you will see a rack of ribs sitting in some sort of sopping sauce (or marinade for you fancy types). I saw one of the cooks pull a wet brisket out of a pan and toss it on the pit. The sausage was lightly packed and exploded out of the casing when I cut into it.

In all honesty, despite Luling City Market's reputation (one Saturday my youngest and I took the long way to Austin so we could pick up some barbecue before the Longhorn game -- the line at Luling City Market was out the front door and onto the sidewalk), it wasn't the best barbecue I've had. Now, make no mistake, it was good but it was just lacking a little something that would've made it great. I was a tad bit lucky as I arrived about 11:30, right before the lunch rush descended like a pack of locusts.

It turned out that my little detour really didn't take much longer than the direct route up Highway 71 thanks to Rick Perry's pet toll road - Highway 130 - that runs from just outside San Antonio all the way up to Dallas to the east of I-35. Few folks use the road and the operating authority is swimming in red ink. On the other hand, from Lockhart to just south of Austin the speed limit on the road is 85 and from Austin to Georgetown it dropped down to 80. In other words, it's the freaking Central Texas Autobahn.

Thursday, July 17, 2014

Bigfoot and jurors

One of my guilty pleasures is watching Finding Bigfoot on Sunday nights. If you haven't seen the show it's about four bigfoot "investigators" who travel across the country looking for evidence that bigfoots (or is that "bigfeet") exist.

The group's leader is named Matt. He's the head of the Bigfoot Research Organization. Another group member is Ranae who is a biologist. Cliff and Bobo are the other members of the team.

Being the scientist, Ranae is skeptical of the existence of bigfoot. Whenever the teams speaks to folks who say they have had encounters with a bigfoot, Ranae looks for some other explanation while the other members step all over themselves expressing how much they think whatever the person saw or heard was a bigfoot.

As I watched the other day I couldn't help but think of jury panels. Ideally the members of the jury panel would be skeptics. After all their job is to determine whether or not the prosecutor has proven his or her case beyond all reasonable doubt. That means they should treat trial like a scientist would treat an experiment - a chance to prove the hypothesis wrong.

After all that's what the scientific method is all about. You develop a hypothesis and design tests to disprove it. If, after conducting all of your experiments, the hypothesis hasn't been disproven, it stands to reason that it might be true.

But that's not how jurors seem to think. Most jurors don't understand what's behind the scientific method. They look at trial (and experiments) as a way of proving up a hypothesis. In other words, instead of forcing the prosecutor to prove each and every element (being skeptical of the charge), they force the defendant to disprove the state's theory. This backward approach means that instead of forcing the state to prove up each and every element of its case beyond all reasonable doubt that they are forcing the defendant to point out reasonable doubt as the case moves along.

And along with such a mindset comes a complete discounting of the presumption of innocence.

Just like the three members of the team who start off with the assumption that bigfoot is real, jurors who miss the point of the scientific method are looking out for any evidence that supports the state's theory of the case without applying the skepticism that is a hallmark of science.

Wednesday, July 16, 2014

Keeping it weird in Austin

Well, just when Travis County District Attorney Rosemary Lehmberg thought everything had died down after her DWI conviction, she managed to flip herself out of the frying pan and right into the fire below.

Ms. Lehmberg is the defendant in a whistleblower lawsuit filed by former ADA Steve Brand who was fired by Ms. Lehmberg last month for allegedly making racially offensive comments that caused a jury panel to be dismissed. In his lawsuit, Mr. Brand claims that he was fired because he triggered an investigation of Ms. Lehmberg by the Texas Rangers.

Per an earlier article from the Austin American-Statesman, Mr. Brand likened an NAACP member to a white supremacist during jury selection in the murder trial that all of these allegations revolve around.
During the May 19-20 jury selection proceedings, Brand was serving as the lead state attorney in a robbery trial for convicted killer Darius Lovings.
Brand argued that he had scratched a candidate from the juror list as she had been the only person to say she wanted to serve on the jury, she was a member of the NAACP and she had posted on her Facebook page a comment and link referring to the “Negro Motorist Green Book,” a guide to safe travel for African-Americans during the Jim Crow era, according to the transcripts.
The link caused him concern, Brand told a judge sitting in for District Judge Julie Kocurek: “Because had the situation been reversed, if it was a white person with something, saying, ‘Hey, here’s a website to look at on why white people should stay out of certain neighborhoods,’ that would cause me concern, and I would strike that person for that reason." 
The next day he told Kocurek: “It’s not because of race. It’s because in part she appeared to be an activist, and that’s what we don’t want. Just as if she was white, we wouldn’t want a white activist or a white supremacist.” 
Brand told the judges that these factors reflected that the woman could have had an agenda. But Kocurek ordered attorneys to pick a new jury, siding with defense lawyer Jon Evans on a so-called Batson challenge, an objection filed when it is believed the state improperly struck a potential juror from the candidate pool based solely on race, ethnicity or sex.
According to Mr. Brand, he was asked to protect two officers who were under internal investigation for their roles in investigating a murder. Supposedly one of the officers, Detective Anthony Nelson, told Mr. Brand that he had lost control of the crime scene while investigating a murder scene. Mr. Brand claims that Det. Nelson admitted losing control of the scene and asked him to keep that fact a secret.

Mr. Brand then relayed what he knew of the crime scene investigation to the attorney for the accused murderer. On the stand at trial, Det. Nelson denied telling Mr. Brand to keep it a secret. Mr. Brand notified the Austin Police Department that Det. Nelson had lied on the witness stand. Then Ms. Lehmberg allegedly told Mr. Brand to go easy on the officers involved. Mr. Brand took umbrage with that suggestion and the matter ended up in the lap of the Texas Rangers.

Ms. Lehmberg denies pressuring Mr. Brand to lay off the investigation of the officers. She claims that Mr. Brand told her that he didn't think Det. Nelson's statement to him was a big deal.

Now let's say, for the sake of argument, that Mr. Brand's claims are true. He then did the right thing by notifying the accused's attorney of Det. Nelson's statements at the scene as any evidence gathered by investigators that night could be compromised as a result of Det. Nelson's losing control of the scene. Det. Nelson's request that Mr. Brand keep the admission under wraps may or may not have been material to the defense. If true, the statement certainly indicates that Det. Nelson might not be the most honest officer in Austin, but whether the statement was made or not, it was losing control of a crime scene that was more important in this case.

By testifying falsely at trial, Det. Nelson dug himself a very deep hole - if it could ever be proven he lied. If he had just admitted making the statement (again, assuming the allegations in the lawsuit are true), it might have made him look bad on the stand but it wouldn't have changed the fact he lost control of the crime scene. In other words, Det. Nelson had no reason to lie on the stand - his lie would not advance the prosecutor's case and it wouldn't undo the harm in his actions (or lack thereof) at the scene.

But if Ms. Lehmberg did try to get Mr. Brand to back off on the investigation then she really stepped in it. And if she really did fire Mr. Brand because he wouldn't back off, then she deserves everything that might be coming her way. Her job as the chief prosecutor in Travis County is to ensure that justice is done at the Travis County Courthouse every day. Her job isn't to protect the Austin Police Department. Hampering an investigation into a law enforcement agency isn't something I'd want to put on my resume - especially when that investigation involves allegations of perjury.

If what Mr. Brand alleges is true, then it raises questions about the integrity of the District Attorney. How many other times has she tried to stymie investigations that could embarrass law enforcement agencies? What skeletons are hanging in the closet in the office of the Travis County DA? What's not being disclosed to defense attorneys?

Of course Mr. Brand could just be blowing smoke. It certainly doesn't do much for one's reputation to be accused to making racially insensitive remarks in a public proceeding. Maybe this lawsuit is just his way of trying to stick it back to Ms. Lehmberg. He certainly wouldn't be the first former prosecutor to try to vilify the person who fired him.

As an aside, the end of the article notes that Mr. Brand is now practicing criminal law. Interesting that just a month after being canned from his job as a prosecutor he calmly walked across the aisle and became an advocate for the Bill of Rights and the accused. Such dedication. Such devotion to the cause. There's no word as to whether he informed members of Austin's criminal bar that he had always admired what that did and that he always wanted to be one of them.

Tuesday, July 15, 2014

Having too much information can be hazardous

Brian P. Fox is a student at Notre Dame Law School, not an actual lawyer. He has studied criminal law and criminal procedure but he has not practical experience dealing with them on a day-to-day basis. He spends his time studying and answering questions posed in the Socratic method from his law profs. He doesn't spend his mornings in the courthouse or his afternoons at the county jail with his clients.

Yet Mr. Fox is convinced that open-file policies in criminal cases are bad. In Mr.Fox's world, open-file policies are bad for defendants and even worse for criminal defense attorneys. You see, Mr. Fox knows better than you or me how to do our jobs most effectively. Oh the arrogance of youth.

The first thing Mr. Fox does is tell us that open-file policies won't prevent prosecutorial misconduct. He makes reference to the Duke lacrosse case and points out that even if prosecutors were required to make their files available to the defense, those prosecutors who were bound and determined to hide something would continue to do so.

And that's fair enough. We have an open-file policy in Harris County (as do many counties throughout Texas) and it certainly doesn't stop the Harris County District Attorney's Office from concealing potential Brady material.

But then Mr. Fox goes off the deep end. He tells us he's concerned with the workloads and low pay of public defenders. He tells us that if the state were required to make their files available to the defense that these poor, overworked souls would be swamped with mountains of evidence to sift through when putting their cases together. Really?

The problem for public defenders isn't having too much material to sift through. The problem is having too many case files thrown on their desks because the state or the county doesn't want to pay more money to defend those folks accused of committing crimes. Remember, indigent criminal defendants aren't a key demographic in anyone's election strategy.

At the same time Mr. Fox is telling us that it's too much work for public defenders to have to deal with open-file policies, he's also telling us that such policies would reduce the number of cases that are resolved with plea bargains and that it would burden the courts and prosecutors with more trials. His fear is that someone who did something bad might escape punishment because no one has time to deal with him.

Should Mr. Fox ever deign to join us in the trenches he will quickly find that we don't concern ourselves with the cost to the state of going to trial. How much extra work a prosecutor has to do to get ready for trial doesn't concern us, either. Our only goal is to provide as vigorous a defense for our clients as we can - nothing else matters.

If open-file policies would lead to more trials and fewer plea bargains, then maybe that's a good thing. Criminal defendants have a constitutional right to be tried by a jury of their peers. If the state can't handle the burden of additional trials, then perhaps someone should take a long, hard look at how charging decisions get made in the prosecutor's office.

Perhaps the strangest of Mr. Fox's arguments is that the rules for how we conduct criminal prosecutions are tilted heavily in favor of the citizen accused. Yeah, just let that assertion soak in for a moment.

He points to the Fourth Amendment's protection against unreasonable search and seizure, the Fifth Amendment's protection against self-incrimination and the burden of proof carried by the state is making his assertion. If Mr. Fox had any experience defending criminal cases he would know what a joke each of those so-called protections is in real life. If he had any experience he would know that the Fourth Amendment is but a shadow of itself these days. He would understand that judges have a hard time excluding evidence they know will prove the defendant guilty. He would understand how little jurors really understand the presumption of innocence and what it means to prove someone guilty beyond all reasonable doubt.

But, hey, being a contrarian is all the rage these days - particularly when one hasn't got a grasp on the reality of the topic he's writing about.

Monday, July 14, 2014

Final thoughts on the World Cup

It's over now and Germany gets to display the world's ugliest championship trophy for the next four years. You would think with the amount of money FIFA extorts rakes in from the World Cup they could afford a proper trophy. But, then again, whenever you start a sentence off with "you would think," it's just going to make you scratch your head.

The better team won yesterday - as painful as that is for me to write. This was not your father's German soccer team. This was a possession-oriented side that passed the ball on the ground and didn't rely on long balls and crosses to score goals. Dare I say it, they were actually fun to watch.

Argentina may have had the best player in the tournament but they suffered from out-dated tactics and an over-reliance on Lionel Messi. I don't care how spectacular a player he is, you can't design your attack on just putting the ball at his feet. The team had plenty of offensive weapons who were under utilized and seemed to be an afterthought. Messi's great, but he can't carry a nation on his shoulders. Having said that, the Argentine defense was unbelievable throughout the tournament (with the exception of the meaningless Nigeria game) but all it took was one defensive lapse to cost them the title.

While the football was great over the past month I do wonder what the long term costs of putting on the tournament will be for Brazil's poor and working class. The stadiums that were built across the country are not going to create any long term economic development. If you buy the hype and think otherwise, just drive down South Main by the football stadium and see if it looks any different than it did 15 years ago.

Football used to be the sport of the working class. But not so with the World Cup. It's a playground for the wealthy from around the world. Despite the billions of dollars the Brazilian government diverted from social programs, the vast majority of Brazilians couldn't afford to buy a ticket for an event they, in essence, paid for.

In four years Russia will host the World Cup and the logistical nightmare of stadiums that are thousands of miles apart. Unlike this year's tournament where all the games were played during our daylight hours, in 2018 we will once again have to deal with games airing in the middle of the night. I enjoyed this year's tournament but I know I won't be seeing much it in four years time.

Then, in 2022, the FIFA's most monumentally stupid idea will take shape. Thanks to rampant greed and corruption, the tournament will take place in the soccer hotbed of Qatar. Should it go forward the tournament will have to be moved to a cooler time of the year (all relative, of course) due to the blast furnace that is the Qatari summer. I'm willing to lay odds right now that we will see a football player burst into flames in the middle of a game. But then, hey, it's all about the money.

Friday, July 11, 2014

Unintended consequences of the Michael Morton Act

All across the State of Texas, local district attorneys are teaming up with judges to find creative ways to get prosecutors out from under the Michael Morton Act. For those of y'all not keeping up, the Michael Morton Act mandates items that the state must hand over to the defense in a criminal prosecution. The law was named after Michael Morton, the Williamson County man who spent 25 years in prison after being wrongly convicted of killing his wife.

The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.

Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.

I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.

Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.

Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?

Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?

If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.

Thursday, July 10, 2014

Analyzing the law rather than justifying an outcome

Francheska Jaganathan was motoring along Interstate 10 in Chambers County (just east of Houston) when she was stopped by a state trooper for allegedly ignoring a sign that indicated the left lane was for passing only. When the officer stopped Ms. Jaganathan he smelled the distinct odor of marijuana coming from her car. A search of the trunk revealed a few pounds of marijuana (somewhere between five and 50 based on indictment.

At trial Ms. Jaganathan argued that the search of her car was the result of an illegal arrest and that the evidence discovered should be suppressed. She argued that the officer had not followed her long enough to determine if she was violating the law. The state argued that at the point she was pulled over, Ms. Jaganathan had traveled in the left-hand lane for some 45 seconds and that she was clearly not passing anyone.

The trial court denied Ms. Jaganathan's motion to suppress and she entered a guilty plea. She then appealed.

The First Fourteenth Court of Appeals overturned the trial court's denial of her suppression motion and remanded the case back to the trial court in Jaganathan v. State, No. 14-13-00356-CR (Tex.App.--Houston [1st 14th] 2014) holding that the evidence presented at the trial court level failed to show the officer had reasonable suspicion to believe that Ms. Jaganathan was violating a  provision of the transportation code.

At some point Ms. Jaganathan passed a sign that said the left lane was for passing only. The stated purpose of that provision of the transportation code is to make the highways safer by keeping slower moving traffic out of the left lane. Between the time she passed the sign and the time she was stopped, Ms. Jaganathan passed one vehicle and was gaining ground on another car that had merged into the middle lane. At the same time the officer began pursuing Ms. Jaganathan at a high rate of speed. He testified at the suppression hearing that it would have been unsafe for her to have moved into the lane in front of him while he was in pursuit.

The appellate opinion points out that the officer had only been in active pursuit of Ms. Jaganathan for about 12 seconds and that she was not impeding traffic while driving in the left lane.

Affirming the conviction would have been an easy decision for most judges. The trial court judge, for instance, heard the testimony and denied the motion because she was driving in the left lane and, more importantly, because she had a whole lot of hippie lettuce in the trunk of her car. But Marc Brown, the author of the opinion, looked beyond the grass in the trunk. He made his analysis without regard to the fruits of the search. Instead of looking for a reason to affirm the decision he looked at the facts of the stop itself and the purpose of the law the officer accused Ms. Jaganathan of violating.

That's what a judge should do.

Wednesday, July 9, 2014

The assembly line keeps on moving

I caught an interesting piece on All Things Considered this afternoon about sentencing reform. Over the last couple of decades tough-on-crime politicians pushed for harsher sentences for non-violent offenders. As a result of the misguided war on drugs, jails around the country have been packed to the gills.

As a result of overcrowding, conservative politicians have been trying to find ways to reduce jail politicians. Restrictions on parole have been eased. Mandatory minimum sentences have been eliminated. Counties are giving more credit for every day an inmate sits in jail.

The problem is the result of simple-minded "solutions" to problems that didn't exist. People sitting in jail and prison for possession of drugs doesn't solve any problem - it only creates more. Addicts and users need treatment, not jail or prison. Incarceration should be a last resort for offenders, not a first option.

Instead we use our jail and prison systems to segregate the population. While we know that whites, blacks and Hispanics all use drugs in pretty much the same proportion, it's the non-white folks that end up with long sentences behind bars. While well-to-do whites are snorting cocaine in clubs and at parties, black and Hispanic youth are being busted for possession of crack.

Law enforcement officials and prosecutors have fought efforts to reduce penalties for possession tooth and nail. They continue to fight common sense measures to reduce jail and prison populations because they are afraid of giving up the leverage they have over those charged with possession. It's far easier to obtain a guilty plea when a defendant has a choice of a few months in the county jail or a longer stretch in prison.

And who cares about the aftermath of a long prison sentence. Neither the judge, nor the prosecutor nor the arresting officer are going to have to deal with the problems a family faces when the breadwinner is taken away in chains. But you can bet that someone will have to deal with the consequences down the road.

We all know that it's far easier to treat the symptoms of a problem that to address the actual problem itself. Why bother trying to get to the heart of why so many young people use drugs when you can just bring them before a judge on the chain and coerce plea after plea?

The cost of providing treatment for those addicted to drugs would be far less than the amount we currently pay to house them in jails and prisons. Wouldn't our money be better spent on trying to help people get off drugs rather than warehousing them in correctional facilities? Wouldn't it be better for them to be working in productive jobs rather than sitting behind bars? If our wingnut politicians are so concerned about "family values," wouldn't it be better to keep families together rather than tearing them apart?

But then, as I've said many times before, those folks accused of crimes, and those serving time behind bars, don't have a powerful political lobby. Politicians aren't looking for their votes. And that's the calculus that drives policy -- what can I do today that will increase the number of votes I can get and reduce the number of votes my opponent can get?

In the meantime the wheels will keep on turning and nothing will change.

Tuesday, July 8, 2014

Stop me if you've heard this before...

It seems that no matter how hard it tries, the Houston Police Department Crime Lab just can't keep itself out of the news. Peter Lentz worked as an analyst at the crime lab from 2012 until earlier this year when he resigned - after he was caught lying, using improper procedures and tampering with a government document.

Oops.

In every case in which an analyst testifies - from DWI cases to capital murder cases - the testimony reveals that the crime lab was certified by ASCLD and by the Texas Department of Public Safety. This testimony is supposed to convince jurors that the test results are accurate. Yet somehow the parade of problems continues.

Mr. Lentz worked on 185 cases, including 51 capital murder cases. The Harris County District Attorney's Office did send out a letter notifying defense attorneys about the issue after it arose as they should. In many of these cases there is still material that can be retested. However, the fact that Mr. Lentz was able to do what he did as long as he did it should raise serious questions about oversight at the HPD Crime Lab.

If the lab can pass its annual audits year after year but we still have problems with analysts making shit up, then there is something wrong with the audit process. Too much of the audit consists of a supervisor reviewing a file and signing off on the test results if all the paperwork is in order. There is no random retesting of material.

The list of past sins at the crime lab is well known in criminal defense circles. The lab has undergone numerous re-openings, re-toolings and re-marketing campaigns over the years. Nothing works. The culture at the crime lab is still - and seemingly always will be - to produce the best possible evidence for the government.

Because the mission of the crime lab is to assist the government in prosecuting cases, lab managers will never probe into the actual testing of material. What purpose would that serve? So long as the test results that come from 1201 Travis help prosecutors obtain convictions there is no reason for managers to do more oversight into the lab's operations.

While the misdeeds of Mr. Lentz only directly affect those cases on which he worked, the stench should cover each and every test result that comes from the HPD Crime Lab. When a culture is so ingrained in an institution that we keep coming across these stories year after year, that culture affects everyone who works in the crime lab.

As a postscript to the story, the Harris County District Attorney's Office presented evidence of Mr. Lentz' misdeeds to a grand jury that declined to indict the former analyst. My question is why was Devon Anderson's office allowed to present that case to the grand jury when almost every test conducted in the HPD Crime Lab (if not every test) is produced for the DA's Office?

There is a clear conflict of interest in allowing the Harris County DA's Office to investigate this matter. Ms. Anderson's office has an incentive not to prosecute Mr. Lentz as such a prosecution could put into question every test conducted at the HPD Crime Lab. By sweeping the matter under the rug, the DA's Office can pretend that Mr. Lentz was a "lone wolf" and that his actions aren't an indictment on the entire crime lab.

Monday, July 7, 2014

Turning the other cheek

I apologize for the brevity of this post but it's early Sunday evening and I'm sitting at my desk in an office building in which the air conditioner was turned off for the holiday. Even though I can hear the faint sounds of the air conditioner coming to life (since it will be only a few hours until the building is occupied again), it's still a sweltering sweat box in here and I don't feel like sitting in a pool of my own sweat.

I ran across a very interesting article on the NPR website this afternoon about Lorenn Walker, a lawyer in Hawaii who practices restorative justice. Ms. Walker was a high school dropout living in Hawaii with her five-year-old daughter when she was assaulted and left lying in an alleyway behind a hotel. As part of her recovery she saw a counselor who urged her to go to college.

She did and thoroughly enjoyed the experience. She then decided she wanted to go to law school because, in her words, she was interested in justice. Okay, enough of the snarky remarks. Those of us who have been through the grind know just how naive one is to go to law school in pursuit of justice.

The interesting part, however, is that Ms. Walker found her way into restorative justice not only because she was the victim of a violent crime, but because she was interested in the people who committed crimes.
"My big break was a really traumatic experience," she says. "I think that no matter what happens to us, we can find some way that it strengthens us. It could have ruined me, but it didn't." -- Lorenn Walker
Too much of what happens at the courthouse is about retribution and punishment. And the fact of the matter is, as I have pointed out in much of my commentary on the death penalty, neither retribution nor punishment does anything to heal the wounds of a crime victim - whether they be the victim of a property crime or a violent crime.

On the docket sheet it's the State of Texas versus someone. The crime victim's name appears nowhere in the style of the case - nor should it. But we play this fiction that somehow prosecutors are fighting for justice for the victims of crime. That's far from what they do.

Sure, we've all had a prosecutor tell us that he or she will have to talk to the victim to see if the offer we've proposed is okay with them. And we've all had a prosecutor tell us (particularly in a domestic violence case) that they are prosecuting our clients for the state, not the alleged victim. You can't have it both ways and it's beyond cynical to claim otherwise.

At least the concept of restorative justice honestly takes the feelings of the victim into account when trying to work out a settlement. And, in some cases at least, restorative justice can actually bring about a true sense of closure to a case

Friday, July 4, 2014

Happy Fourth (or not)


Yesterday the Harris County Criminal Lawyers Association carried on a tradition born four years ago with the annual reading of the Declaration of Independence outside the Harris County Criminal (In)justice Center.

At the same time as the reading in Houston, there were readings at 73 other courthouses in Texas.

The reading is a powerful reminder of what the Fourth of July is all about and why we do what we do. It's an event that pulls us together and gives us a little kick in the ass to motivate us. It's also a stark reminder of how different things were 239 years ago.

Of course I would be remiss if I didn't point out that it was a roomful of wealthy, white landowners who signed the document and their promises of life, liberty and the pursuit of happiness didn't apply to women, the poor or those held in bondage.

A special shout out goes to John Raley who worked for years - for free - to obtain the release of Michael Morton. There is no higher reward in this profession than seeing an innocent man walk out of prison.

HCCLA President Carmen Roe opens the ceremony.


Robb Fickman delivers the keynote address.

But it's not all fun and games for down here in Houston we are in the midst of (yet) another No Refusal Weekend. The other day Mayor Annise Parker and the police got in front of the media and explained why we just need to pretend that the Fourth Amendment doesn't exist on Fourth of July weekend.

The anecdotes are horrific. There is nothing amusing or fun about folks dying in a car accident because someone was intoxicated. But there is also nothing to celebrate about making a mockery of what this holiday is all about. The Founding Fathers put their lives on the line by signing a document that laid out the abuses committed by the British government. Our own elected officials pat themselves on the back for conspiring to violate the Bill of Rights.

An interesting side note to all of this was former Harris County prosecutor (and current Montgomery County prosecutor) Warren Diepraam's appearing on KUHF's Houston Matters yesterday in which he told the radio audience that there was nothing wrong with having a drink or two with dinner and then getting in the car and driving home. I would like to hear Mr. Diepraam square that statement with the fact that once an officer smells alcohol on a driver's breath - and once that driver admits to having had a "couple" of drinks - that the investigation is over and someone's going to jail.

The other day while I was watching the US play Belgium (and apparently forget that the object of the game is to score a goal), I met a police officer from New Zealand who was here on vacation. He was amazed at how different the rules under which the police operate are. In New Zealand, for instance, an officer can pull any motorist over at any time to test them to see if they are legally intoxicated. No reasonable suspicion, no probable cause. No nothing. Get in your car to leave the bar and you just might be the unlucky soul who gets picked to be tested.

That's not a system under which I wish to live. But that's where we are headed with drunk driving laws. When we demonize one crime, we make it that much easier to take away the rights of folks accused of other crimes. Is that how we want to celebrate Independence Day?

Thursday, July 3, 2014

Disgraced former DA gets new gig

Disgraced former Williamson County District Attorney John Bradley has finally landed a new gig. He will be working in the Attorney General's Office in the Republic of Palau - a former US territory in Micronesia.

For those of y'all who may have been hiding under a rock the past couple of years, Mr. Bradley lost his post when he lost in the GOP primary back in 2012. As conservative as folks might be in Williamson County, they weren't able to overlook his role in the Michael Morton affair.

While it was former DA and former Judge (and former attorney) Ken Anderson who played fast and loose with the rules during the Morton investigation and trial, Mr. Bradley was the mouthpiece for those who wanted to preserve a bad conviction at any price. As a result of the illegal and shameful conduct by the Williamson County DA's Office, Michael Morton lost 25 years of his life and a killer walked free while he sat behind bars for a crime he didn't commit.

From Ms. Falkenburg's piece:
"I don't wake up every morning gnashing my teeth and shaking my fist at, you know, 'where's John Bradley?' I've literally and figuratively moved on," [Michael Morton] said. 
"At this stage of the game, I wish him well," Morton said. "And, you know, adios."
The fact that Bradley had to go all the way to Palau to get a gig just goes to show how reprehensible his actions were in defending the conviction.

It remains to be seen whether Palau will experience some of Bradley's brand of "justice."

Wednesday, July 2, 2014

End of the road in the World Cup

Yesterday the dream of a World Cup trophy died for the United States with a 2-1 loss to Belgium. The US performance has been described as gutsy and gritty. In the soccer world those are euphemisms for teams that were overmatched and outplayed. The US team is completely bereft of creativity in the midfield. They are not capable to maintaining possession and dictating pace. Until those deficits are addressed, the US will always be an underdog in the World Cup.

The style of play for the US is very reminiscent of England's style for most of the last 50 years - at least until an influx of foreign players in the Premier League caused English sides to realize there's more to soccer than launching long balls and crosses all day long. So long as the US relies on guts and grit its results in the World Cup will be similar to that of England - no trophies.

The one bright spot yesterday was US goalkeeper Tim Howard, making what may have been his last start for the national team. Mr. Howard made 16 saves - a World Cup record. He deserves combat pay for his performance. He was the only member of the US team who deserved to be on the same field with the Belgians. Unfortunately, if your game plan is to stand around and let the other team take target practice on your keeper, you have no margin of error.

We'll have to wait and see if anything changes over the next four years.

In the meantime, Juliet Macur penned this wonderful article in the New York Times about the legacy of sports stadiums after the fans have left. These palaces of sport are built using hundreds of millions of dollars of public money and then sit empty afterward - relics of crony capitalism.

Many of these arenas will be vacant after the games have left. In most of the cities there aren't enough supporters of local soccer teams to fill the venues for ordinary league games. In some cities there aren't any teams that are willing to pay the astronomical rents to use the stadiums.

At the same time FIFA (the world governing body for soccer) rakes in billions of dollars from the World Cup and washes its hands of the aftermath of rampant graft and corruption.

Over the next four years Russia will be next to spend public money on stadiums that aren't needed and will sit unused after the tournament is over. This is on top of the billions of dollars thrown away on the Sochi Olympics earlier this year.

As I've said before, if sports stadiums are the engines of economic development as supporters claim them to be, there should be problem lining up private investors to put their money into the projects in hopes of making massive profits on the back end. The fact that these stadiums are built using nothing but public funds should tell us everything we need to know about the myth of stadium construction.

The working class and poor folks in Brazil are learning that lesson first hand.


Tuesday, July 1, 2014

My religion is more important than your health

When the US Supreme Court released its decision in  Burwell v. Hobby Lobby Stores, Inc. yesterday it pointed out yet another flaw in the delivery system for the Affordable Care Act. By yet another 5-4 decision, the Court held that family businesses and for-profit closely held corporations could opt out of providing contraceptive coverage for their employees if it went against the religious beliefs of the owners of the company.

As I have written before, the biggest problem with the ACA is that it left the current medical care delivery system in place. Thus, most folks are beholden to their employers for health care coverage. Rather than creating a program of universal health care, the ACA is nothing but a corporate welfare system for the insurance companies. They are guaranteed their profits while no one else even has a guarantee of coverage.

In Burwell, Hobby Lobby argued that the contraceptive mandate in the ACA violated the religious beliefs of the owners of the company. They argued that since religious non-profits were allowed to opt-out of contraceptive coverage that they should get to opt-out, too. Let's just forget for a second that Hobby Lobby is a for-profit company that employs over 16,000 people.

Let's also forget for a second just how specious the company's argument really is. It is of no concern to the owners of Hobby Lobby what their employees do when they go home at night. The last time I checked, there is no commandment telling folks not to have sex as often as they want - provided they aren't committing adultery. But I do seem to recall a commandment that says we shouldn't go around killing folks.

So, is Hobby Lobby also arguing that shouldn't have to pay that portion of their taxes that go to war-mongering? Are they asking the states to exempt them from that portion of their state taxes that go to pay for executing prisoners?

No, you say? Well that's awfully damn funny, ain't it?

So the fine Christian owners of Hobby Lobby have no problem with spending money to build war planes and guns and bombs and drones. They have no problem spending money to send troops overseas to shoot at people. They have no problem with remote controlled aircraft shooting missiles at groups of people. They haven't the slightest problem with strapping down prisoners and killing them with questionable drugs. But someone wants to put on a condom or take a birth control pill and the whole world's going to stop spinning.

Give me a fucking break.

Religious belief is the straw man in all of this. The real target is paring down the ACA so that companies don't have to provide decent health care coverage for their employees. The more watered-down the coverage offered by a company, the less money it costs them and the more money the top managers and owners can walk away with.

People who work for Hobby Lobby aren't working their because they share the same religious beliefs with the money-hoarding owners of the company. They're working there because they need a paycheck to pay the bills. More and more folks are forced to work for low-wage service companies because the manufacturing jobs are being shipped overseas in the name of higher profits.

What will be the next domino to fall? Which company is going to step up next and argue that they shouldn't have to comply with one provision or another of the ACA because it goes against some principle by which the company stands? And how many more workers are going to see their coverage pared down so that the owners of the company can put more money in their pockets.

As with most everything he has done over the course of his presidency, Barack Obama made a half-assed effort to appease those on the left. The ACA was a very cynical attempt to placate those who demanded a single-payer health care system that guaranteed coverage for all. The ACA will fail not because the wingnuts defunded it, the ACA will fail because the courts sanctioned a death of a thousand cuts.

Monday, June 30, 2014

First the plea, then the admonishments

On Friday members of the Harris County Criminal Lawyers' Association stood outside Judge Michael Fields' courtroom handing out 3x5 cards listing the rights a criminal defendant has under the 5th and 6th Amendments. They did this to protect unrepresented defendants making their first appearance from Judge Fields.

If you are taken into custody in Harris County and aren't bailed out immediately you will probably find yourself standing in a room staring at a video monitor as a magistrate informs you that it would be best if you kept your damn mouth shut. He then asks if you want to plead guilty. If not, a plea of not guilty is entered and you are returned to your holding cell until you bond out or until you are moved to a pod.

For those who get bonded out earlier they are released from the jail and handed a piece of paper telling them when and where they need to appear. At that first appearance in court they are called up to the bench and the judge tells them it would be best if they would keep their damn mouths shut. If they've bonded out it's assumed that they are pleading not guilty.

Unlike what you see on television or in the movies. There is no dramatic scene where a defendant is brought into a courtroom with an attorney to enter a not guilty plea and argue over the amount of bond required to get out of jail. You see, we have a bond schedule in Harris County that takes the guesswork right out of the entire process. There's no need to talk about mitigating circumstances or a defendant's clean record or ability to pay, all a magistrate has to do is look down the list and set bail.

But then we come to the 11th floor of the Harris County Criminal (In)justice Center and the courtroom for County Criminal Court at Law No. 14. That's where the rules we follow in the normal world don't apply. It can be like stepping out into another world.

This is a court in which every defendant charged with driving while intoxicated will be ordered to install an ignition interlock device on their car -- even the one who blew 0.0 who was suspected of having smoked marijuana. Let's just forget about the fact that the interlock device can't detect THC in a person's breath. But, dammit, if he was charged with DWI we're going with the interlock anyway. And heaven help the poor soul who "tripped the wire" because he had used mouthwash just before starting his car. If anything bad comes back on that report he's going to jail overnight to teach him the lesson that neither the state nor its devices are ever wrong.

Step into the courtroom and you will see Judge Fields call up all the defendants making their first appearances who bonded out and who haven't hired attorneys. And then, without letting the people in front of him know they have the right to remain silent and the right to consult with counsel, he asks them how they wish to plead. Right there. No one is provided with any information about the consequences of pleading guilty and no one is warned of the potential collateral consequences of such a plea.

And once it's entered, it's final. No turning back. No changing your mind.

A judge isn't part of the prosecution's team. A judge is supposed to a be a neutral and unbiased referee who's sole job is to make certain that a defendant's due process rights are protected and that both sides follow the rules of evidence and procedure during the course of the proceedings. Whether a person pleads guilty or not is of no concern to the judge - at least it shouldn't be. In Texas we are all guaranteed the right to a jury trial in a criminal matter. Defendants and their attorneys shouldn't have to fight the judge to exercise that right.

The entire criminal (in)justice system in Harris County is designed to coerce defendants into pleading guilty. Whether it's excessive bail or bond conditions; or whether it's judges who want to prevent folks from exercising their right to a jury trial; the game is the same.

Judge Fields isn't the only one playing this game. But he was certainly the most egregious this time around.

Friday, June 27, 2014

Thoughts on the World Cup

Enough about the law for now. Here are a few observations about the group stage of the World Cup.

Luis Suarez may very well be the best striker in the world but he has got a serious problem that needs to be addressed. He has now been suspended three times for biting another player. The latest ban is for four months and nine international matches. I can't even being to imagine what was going through his mind, but biting someone during a World Cup match is beyond stupid. While the referee might not have seen it, there are so many cameras out there that someone was going to. Little children bite because they don't know better. Grow up, Luis.

This edition of the World Cup has a very Latin flair to it. Seven of the sixteen teams that advanced to the second round are from Central and South America. And then there's the United States. When you factor in two teams from Africa, you end up with less than half the remaining squads coming from Europe. The two biggest surprises have to be Costa Rica and (the suddenly Suarez-less) Uruguay. Who would have thought that neither England nor Italy would've survived the group stage? I must say, however, that one of the things I'm going to miss about the rest of the World Cup is watching England find new ways to lose.

The United States has some serious work ahead if they want to be serious contenders for the trophy. Until the US can develop midfield players that know how to play possession soccer and who can create goal scoring opportunities through creative passing, we will be left just hoping to get out of the group stage. Against Ghana the midfield was non-existent, serving as nothing more than a way station from the back line to the strikers up top. In a game in which possession of the ball was crucial, there was no one in the middle that seemed to know how to do it. While they looked better against Portugal, against Germany in the monsoon the midfield reverted to form and the team showed a complete lack of ideas on what to do on the pitch.

Lionel Messi has been nothing short of superb for Argentina. He has demonstrated just what a goal-poaching striker should be. His goal against Iran in stoppage time of a scoreless draw was spectacular. His goals against Nigeria were remarkable. The first was the perfect example of what a striker does. He was in the right place at the right time when the ball caromed off the post and he drove it into the net. Against Iran he did little for 90 minutes but when he got his foot on that ball in stoppage time he made the world forget that he had, in essence, been kept out of the game by the Iranian defenders. That's what the best strikers do - they can be invisible for much of a game but when that opportunity comes, they pounce on it.

Thursday, June 26, 2014

It can't possibly be his fault, can it?

And then along comes Martin Odemena to make lawyers (or wannabe lawyers) look ridiculous again.

According to this piece on the ABA Journal's website, Mr. Odemena is a former law student who was still a bit upset over the D he received in his contracts class. He was so upset, in fact, that he filed a lawsuit against the Massachusetts School of Law alleging that the school's decision cost him over $100,000.

It seems that Mr. Odemena decided to blow off days in which his contracts professor, Joseph Devlin, gave quizzes in class. Mr. Odemena understood, incorrectly so, that those quizzes wouldn't count toward his final grade. The result was a D in contracts class.

The grade led to Mr. Odemena's suspension from school which, according to his lawsuit, made it impossible for him to transfer to another school. And, just like that, another promising career in the legal field went up in smoke.

Okay. I get it. Mr. Odemena really, really wanted to be a lawyer. He flamed out in law school. He was upset because he wouldn't get that fancy BMW he had his eyes set on. He wouldn't be able to impress the ladies with his tales of carrying briefcases and doing meaningless work for a big law firm. Surely it wasn't his fault his dream had gone poof.

On the other hand, he avoided carrying a whole lot of debt around with him after he got his ticket to ride. He didn't get sucked down into the drudgery that BigLaw has become now that the bean counters are tracking the rate of profit from every task. He didn't have to live with the anxiety that he would be cut loose when he failed to make the partner track in a few years.

Let's face it, law school is a mechanism for weeding out those folks who think they want to be lawyers. Mr. Odemena was looking for the easy way out. If the quizzes didn't count he could take it easy during the term and then get down to business toward the end of the semester when it counted. What does that tell you about how he would do his job once he got to put Esquire after his name?

And if he didn't get to be a lawyer afterward? So freaking what. None of us are given a guarantee of what we're going to do after school. That's not how life works. The bar down the street is full of folks who didn't get the job they yearned for. You can either get over it or you can let it drag you down the street of self-pity and self-absorption.

Mr. Odemena didn't get to be a lawyer. The legal world won't miss him. There are already too many of us anyway. Instead of pouring more and more new lawyers out on the streets year after year, law schools need to do a better job of weeding out the folks who don't need to be lawyers.

And that's exactly what the Massachusetts School of Law did.

Wednesday, June 25, 2014

Lost in the aether

In an effort to reduce the amount of paper that lawyers generate, the Texas Supreme Court mandated that all civil and family pleadings be filed electronically. On the one hand it's great because you can sit down at your desk, draft the pleadings and file them at any time without having to drive downtown. Of course now there are more folks with their hands in the pie taking a cut of the fees so it costs a bit more - but probably no more than the gas and parking for going downtown.

Unfortunately, at least in the family courts, e-filing has caused things to bog down. Here's an example.

Back on the 12th of June I filed a divorce petition and request for a temporary restraining order. Now, in the old days we would go to the filing window in the basement of the Family Law Center, file our petitions, pay the filing fees and, if there was a TRO to be signed, take the file from the clerk and walk it up to the courtroom for the judge to sign. After it was signed we'd walk it back down to the clerk and it would go in the stack to be processed. Generally within a week the paperwork was ready to be picked up and served.

No more.

After filing the petition on a Thursday evening, I had to wait until Tuesday for it to be signed by the judge (in all fairness, the judge was out of town on Friday after I filed the petition). So far so good, more or less. But then the paperwork got lost in the ether at the Civil Courthouse. On Friday the 20th I went to the window for the family section and asked if the petition was ready to be picked up. I was told by the clerk that it wasn't and that I should check back on Monday or Tuesday.

Since I was scheduled for trial yesterday I decided I wouldn't go to the courthouse on Monday - I figured it gave me better odds of not wasting my time. So yesterday I stopped back by the family section before heading over to the Criminal (In)justice Center. I was expecting to pick up the paperwork so that I could serve it on the husband.

But, to my surprise, it still wasn't ready to be picked up. I was told to come back by on Wednesday to see if it was ready.

Assuming it is ready for pick up today, it will have taken almost two full weeks for the petition to be filed, the TRO to be signed and the citation produced. That is a ridiculous timeline. Shouldn't one of the benefits of e-filing be speedier turn-around time? The process now takes longer than the old paper filing system did.

And this fiasco is just part of the story. Under Chris Daniel's "leadership," not only does it take longer to initiate a new case, going on-line to the website to check on the status of a case is often a hit-or-miss affair. The website's search database is prone to crashing and bringing the system to a halt.

Since Mr. Daniel decided to take the old Justice Information Management System and migrate it to the searchable database, attorneys and bondsmen looking for current information on a defendant's status find themselves having to wait for hours for the system to update itself.

Mr. Daniel has done everything he can to promote himself with an election coming up in November. For those folks who don't deal with the courthouses on a daily basis, the mere fact that he has an "R" after his name will be enough to get him lots and lots of votes in the vapid suburbs. For the rest of us, however, his tenure has been an exercise in just keeping one's head above water. The District Clerk's Office certainly isn't in better shape today than it was before he was elected. The prospects for the future aren't much brighter, I'm afraid.

For all the hoopla about e-filing, the actual product has failed to live up to expectations and a two-week lag between filing a petition and picking up the citation is nothing short of pathetic. Maybe if Mr. Daniel spent more time managing the office and less time campaigning things would work better.

Tuesday, June 24, 2014

Court releases Obama's drone memo

Thanks to the 2nd Circuit Court of Appeals, the infamous Obama administration "drone memo" is now public. The memo lays out the administration's justification for the use of drones to kill suspected terrorists and those unfortunate enough to be in the vicinity of them.

One of the touchstones of the memo is the infamous balancing test the US Supreme Court introduced when weighing Fourth Amendment violations. Never mind that the Fourth Amendment is quite clear in its prohibition against unreasonable search and seizures. As legendary criminal defense attorney Gerry Goldberg would point out, whenever the Supreme Court starts talking about balancing tests, our rights are in danger.

According to the memo we should look to balance the violation of a suspect's Fourth Amendment rights against the interest the government has in violating those rights. In other words, if there was enough dope found, the search is legal and if the government stomps its feet loud enough and proclaims that a person is a terrorist, then it's no harm, no foul.

Balancing tests are what we use to decide whether or not a law should be enforced or repealed. Balancing tests are what we use to decide our course of action in almost any endeavor. A balancing test has no business being involved in determining whether a person's constitutional rights were violated. To do so implies that one's rights under the Bill of Rights are just relative.

But, hey, if we're talking about the Fourth Amendment we already know we're talking about someone who did something they weren't supposed to. We also know that the police found plenty of evidence of that transgression -- otherwise there wouldn't be a need to discuss whether the search or seizure violated anyone's rights.

And who wants to be the person who lets the bad guy go free, anyway? That's certainly not the way to pick up votes during the campaign. Folks want to vote for the judges who are "tough on crime," not the judges who promise to extend the protections of the Bill of Rights to everyone who sets foot in their courtrooms.

And what better way to be tough on crime - or any other bogeyman - than to limit the applicability of the Fourth Amendment? And the best way to do it is to create a straw man and institute a balancing test. Of course the same folks who take that approach with the Fourth Amendment would have a conniption fit if anyone suggested that a balancing test should be used to determine when the Second Amendment should apply.

Monday, June 23, 2014

On picking your fights

I was in municipal court for a client fighting a traffic ticket in a Houston suburb last Thursday. The court wants defendants in the courtroom to answer an 8:00 a.m. docket call on trial settings. They also want attorneys to call in if they are going to be running more than a few minutes late.

There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.

Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.

In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.

The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.

The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.

The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.

Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.

Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.

My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to a black-robed prosecutor judge but that this definitely wasn't it.

The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.

As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.

The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.

Friday, June 20, 2014

The two faces of the World Cup


I had to wait until my girls went to bed before I could finally sit down and watch the Uruguay-England match from the World Cup. Watching Luis Suarez put those two balls in the net was well worth the wait. I haven't much doubt that Luis Suarez is the best striker in the world. Just watch what this team did against England and compare that to the debacle that was their opener against Costa Rica and you can't help but think Suarez is the best.

But the story of this World Cup isn't just what's happening on the pitch. The real story is what's going on away from the cameras and media. The Brazilian government has sold its soul to host both the World Cup and the Olympics and it's the poorest of Brazilians who are paying the price.

For those of y'all who have been enjoying the football, here's an interview Dave Zirin gave to Amy Goodman on Democracy Now! on Thursday in
which he puts the World Cup in its proper perspective.

Thursday, June 19, 2014

First executions since Oklahoma's botched science experiment

Right around midnight on June 18, 2014, the states of Georgia and Missouri murdered inmates with secret drug protocols. They were the first executions in the United States since Oklahoma's botched execution of Clayton Lockett.

The first inmate to die was Marcus Wellons in Georgia, whose execution was carried out after his last minute appeal to the U.S. Supreme Court fell on deaf ears. Mr. Wellons challenged the execution on the grounds that due to state secrecy laws he had no way of finding out the purity and potency of the drug that would be used to kill him. Without that information he was unable to challenge the execution protocol under the Eighth Amendment's ban on cruel and unusual punishment.

A three judge panel of the 11th Circuit Court of Appeals rejected his claim that state secrecy laws prevented him from obtaining information regarding the drug that would be used to kill him. Judge Charles Wilson said he was troubled by the circular logic of the secrecy law in Georgia. He voiced concerns over the court's ability to determine whether an inmate's Eighth Amendment protections were violated because of the secrecy law. In the end, however, he was a good little soldier and looked past his concerns and voted to kill Mr. Wellons.

From the Los Angeles Times:
Three judges on the 11th Circuit Court of Appeals unanimously rejected those arguments earlier Tuesday, though one judge, Charles Wilson, wrote that Georgia's secrecy law had a "disturbing circularity problem." 
Since it was Wellons' responsibility to prove that the state's execution plans were likely to cause an unacceptable amount of harm, Wilson wrote, "How could he when the state has passed a law prohibiting him from learning about the compound it plans to use to execute him?" 
Wilson added that judges, too, would have difficulty examining the legality of the state's executions without more information on how they were being carried out. Despite those concerns, he cleared the way for Wellons' execution.
Shortly after Mr. Wellons was murdered down in Georgia, the State of Missouri stuck a needle in John Winfield's arm and killed him. Mr. Winfield's execution had been put on hold by a federal judge over concerns that the state wasn't being fair when it came to Mr. Winfield's push for clemency. According to court papers the State of Missouri threatened to fire a prison guard who was going to testify that Mr. Winfield was a model prisoner.

Once the 8th Circuit Court of Appeals struck down the lower court's stay of execution, the State of Missouri wasted no in killing Mr. Warfield.

Thanks to state secrecy laws we know nothing about the drugs used to kill either Mr. Wellens or Mr. Warfield. We know nothing about the efficacy of the drugs used or how powerful the drugs were when they were used to kill the prisoners. Without that knowledge it is virtually impossible for anyone to determine whether or not inmates may suffer while being executed.

As citizens of the states, we all have a right to know just how our elected officials are spending our money and just what they are doing in our names. Unfortunately we choose to ignore those rights when it comes to those sentenced to die by a jury of their so-called peers.