What Are My Rights?

As I was enjoying a DVD movie last night with my family I received a call from the First Assistant District Attorney in Brazos County. He called me out of courtesy about the arrest of one of my current clients. He explained my client has just been arrested and had invoked his right to silence when the police attempted to interrogate him. I immediately got into my car and went to the county jail to give my client further instructions. Among other things, I commended him for invoking his right to remain silent.

We all understand the need for good law enforcement. However, we also must understand our own rights and responsibilities, especially when we interact with the police. If you are stopped by the police:

• Stay calm and in control of your words, your emotions, and your body. Don't get into an argument with the police.

• Do not complain at the scene or tell the police they are wrong.

• Do not make any statements regarding the incident. Do not consent to any searches.

• Ask for a lawyer immediately if you are arrested.

• Try to find witnesses and their names and telephone numbers.

• Never bad-mouth a police officer.

• During an encounter with the police, you can protect yourself: What you say to the police can and will be used against you, and it can give the police an excuse to arrest you, especially if you are bad-mouthing the officer.

• You do not have to consent to a search of yourself, your car, or your home. If you do consent to a search, it can adversely affect your rights later in court.

• Do not interfere with or obstruct the police - you can be arrested for it.

• It is not a crime to refuse to answer questions, although it is a crime to refuse to identify yourself and produce proof of your identity.

• If police reasonably suspect you pose a danger to them or others, they may conduct a frisk and "pat down" your outer clothing. Do not physically resist, but make it clear you do not consent to any further searches.

• If you are stopped in your car: Upon request, show the police your driver's license and proof of insurance. In certain cases your car can be searched without a warrant. However, to protect yourself you should state you do not consent to a search. It is not lawful for the police to arrest you simply for refusing to consent to a search.

• If you are contacted at your home: If the police knock and ask to enter your home, you do not have to let them in, or even open the door, unless they have a warrant signed by a judge - not just the threat of getting a warrant.

• You do not have to consent to any search of your home.

• In some emergency situations, officers are allowed to enter and search your home without a warrant and without your consent.

• If you are arrested or taken to a police station: You have the right to remain silent and talk to a lawyer before you talk to the police.

• Do not give any explanations, excuses, or stories. You can assert your defense later with the help of your lawyer.

• Ask to see your lawyer immediately. Do not say anything without a lawyer.

• Do not talk about the facts of your case over the telephone at the police station or jail.

• Do not make any decisions about your case until you have talked with your lawyer.

Motivated to Kill

Capital Defense Weekly announced "The Death Belt Claims Three." I figured it was my turn to pop off on the death penalty. The following post was inspired by Texas defense lawyer Emmett Harris' editorial comments in the "Voice for the Defense."

In Texas receiving a death sentence for committing capital murder is a good bet. Texas is often at the top of states zealously executing their own citizens. But prosecutors could not obtain the death penalty unless jurors were willing to give it. So why are jurors so willing to sign-off on the death penalty when the State seeks to kill one citizen in exchange for the life of another?

Jurors may believe the death penalty brings a sense of closure to the victim's family? Well, our common human experience demonstrates closure will never occur - no matter what is done in response to the senseless and tragic death of a loved one. That wound is carried forever. Forever those left behind will wonder why. Forever they will struggle with the memory of the meaningless death of someone close and dear to them. Closure is unattainable and some introspection by the juror ought to reveal that truth.

What about deterrence? Isn't that a good reason to sign-off on the death penalty? Well, the death penalty is there but capital murders keep occurring. The death penalty is assessed but capital murders keep occurring. The death penalty is publicized and glamorized but capital murders keep occurring. Jurors know this. They read about the lack of rational basis to believe the death penalty deters crime in anyway. Cassy Stubbs wrote a good article about the deterrence myth here. Nothing holding water yet.

Scripture support for the death penalty is a good argument, isn't it? Not one defense lawyer who's ever tried a death penalty case hasn't heard a prospective juror say "You know the Bible says an eye for an eye." Exodus 21:24; Deut 19:21. But didn't Jesus Christ come to fulfill the law of the Old Testament? Are not these same jurors ignoring what Christ said in Matthew 5:38-39? "Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also." Are not these same jurors ignoring the Biblical message of God's grace and mercy? Is the Scriptural excuse nothing more than an attempt by jurors to clothe an otherwise motivated desire to kill with credibility?

What is happening? Well, obviously the State is playing upon our natural desire to kill for revenge. In our advanced and "enlightened" society we cannot come up any better solution for one death than causing another one. You see, I agree with Emmett and believe that is who we really are. We are about revenge. When one person dies - another must also die.

We truly do not understand God's grace and mercy. If we did we would not be so quick to sign-off on the death penalty. In Biblical times God often withheld judgment upon the nation of Israel giving them opportunity to repent and turn back to Him in faith. Why can't we do the same as a society? Why are we so quick to judge, so quick to kill? We ought to know better. Our society ought to know better.

My Fee for This Case

I've been practicing criminal law exclusively for almost 17 years and I still think hard when setting fees. Besides a lawyer's competence, the next most important issue to the client is how much the representation will cost. My fee should compensate me appropriately for the effort I anticipate expending for the client. Additionally, my fee should be fair to the client - a price that is hopefully within their acceptable range. But when setting a fee I will always err on the high side, rather than the low.

I love what Michael Sherman had to say about fees on his blog Law for Profit. When building the "perfect" law practice Michael theorized:

Because of their dedication to extraordinary client service and value, lawyers at the Perfect Practice are able to charge premium fees. This does a number of things: it drives off low paying business that you should not want anyway; it allows you to focus on quality instead of quantity; and by reducing the number of cases it allows the staff and lawyers to deliver better service.

I found this wisdom true in my practice of law. My fees run-off a fair number of prospective clients, but the clients that hire me get excellent and personalized service. I am able to work their cases hard since I carry a lighter caseload.

I also appreciate what Scott Greenfield, authoring Simple Justice, had to say on the issue of service:

A criminal defense lawyer is not your new best friend, your teacher or your therapist. He is the one person who stands between you and the awesome power of the government. You need a criminal defense lawyer who understands that his job is to serve your needs . . .

The simple truth is that the best possible result comes from a position of strength, not weakness. The only way to defend from a position of strength is to think "outside the box" to find innovate approaches that relate to the specific set of circumstances for each defendant. To develop a strategy that gives each defendant the best possible hope of success requires enormous effort.

To "think outside the box" a College Station criminal defense lawyer needs time. The fewer cases he handles at a premium fee, the more time the lawyer has to address specific client needs. I can tell both Michael and Scott spend time and work their cases hard because they aren't burdened by low paying business that other lawyers try to attract.

The defense lawyer should strive to charge premium fees to keep their caseload at levels where they can provide extraordinary client service. I can't count the number of cases that turned on a fact or issue I wouldn't have thought of - but for the time I spent thinking deeply about the case. The lawyers making a living on client volume are doing both their clients and themselves a disservice. Clients deserve the best effort we have but we can't provide it when we are juggling 200 active criminal cases, managing the staff, paying the bills, going to court, spending time in recreation, and loving our families.

Lawyers should not be afraid to charge premium fees and clients should not be afraid to pay them. Sure, the premium fee will run-off the price shopping prospects. But those clients are fooling themselves into believing they get quality service at a bottom dollar price. Setting fees will always remain a risk for the committed defense lawyer. However, running a business involves risk. Without risk there is no reward. Risk big - win big. Risk little - win little. Lawyers, don't be afraid to charge the premium fee. Clients, don't be afraid to pay it.

A Labor of Love

As I finish my week in the office some thoughts occurred to me worth mentioning in public. Since launching The Defense Perspective I realized my colleagues in the bar who actively contribute to discussion and education through publishing their own blogs are deeply involved in a labor of love. These lawyers are making significant contributions to the bar at large and I wanted to acknowledge their effort. I also need to thank them for helping me with The Defense Perspective by mentioning my blog and adding it to their blog rolls.

Thanks to The Austin DWI Lawyer, Jamie Spencer, who writes on a myriad of DWI topics and provided my first plug in his post "Getting Other Lawyers to Link to Your Blog." Thanks to Mark Bennett who can really pick a fight with guys from New York. Mark mentioned The Defense Perspective and gave me a plug in his post "Two More Blawgs for the Blawgroll." Thanks to Gideon for adding me to the blog roll on a public defender. Robert Guest, who authors "I was the State," said I inspired his thoughtful post on "Tougher DWI Laws No Deterrent". And finally, thanks to Evan Schaeffer for mentioning The Defense Perspective on "Evan Schaeffer's Legal Underground."

Lawyers who blog cannot be successful without the help and support of others laboring in love on those topics and issues meaningful to them. I hope you take the time to check out these blogs since they contribute greatly to the bar and benefit us all.

Handling the Media - Know the Facts

In my introductory post on handling the media, we learned how the effective criminal defense lawyer must always consider how media coverage can affect their client's interests during the litigation process. In high profile criminal cases the defense lawyer should learn to think like a reporter and learn to recognize a newsworthy angle on their case. In other words, what things about the case constitutes "news" and how does the lawyer prepare to represent their client zealously in the media? First though, the defense lawyer must know the facts.

Many lawyers are reluctant to talk to the press for fear of violating the rules of ethics which govern their professional conduct. The rules of ethics state the lawyer can make comments upon and generally discuss the following matters related to their case: (1) the general nature of a claim or defense; (2) any information contained in a public record: (3) an investigation is underway - including any defense involved; and (4) a request for assistance in obtaining evidence. Additionally, the lawyer may also comment upon a matter "reasonably calculated to counter the unfair prejudicial effect of another public statement" made in the press. That is, if the prosecutor is engaged in a media campaign against their client the defense lawyer is permitted to respond the attack.

To present a newsworthy angle on their case the lawyer must know the facts of the case intimately before talking with the press. If the lawyer makes a mistake it will be forever recorded in print and in website archives. Since other reporters will look to past stories for background information they are likely to repeat the lawyer's error in their own stories. In this case, credibility may be lost and the client's case can suffer harm.

In future posts we will continue our exploration of areas in which the criminal defense lawyer can prepare to make the best use of the media to zealously represent their client.

The Risk of Remaining Silent

Tom Kirkendall reported in Houston's Clear Thinkers the defense team in Conrad Black's white collar criminal trial announced the defendant had elected not to testify:

The Black's defense team strategy in holding Black off the witness stand is risky. As Martha Stewart and Jamie Olis learned the hard way, jurors in white collar criminal cases expect to hear the defendants explain why the government's charges are not true. When the jurors do not hear from the defendant, no jury instruction will ever remove the seeds of doubt from the jurors' minds that the defendant is trying to hide something. Granted, as Jeff Skilling and Ken Lay experienced, testifying in one's own defense certainly does not assure a successful defense. Likewise, the courtroom dynamics of each trial are different, so those in play in the Black trial courtroom may favor Black staying off the stand. But as the late Edward Bennett Williams used to advise his white collar criminal clients, "If you elect not to testify, then you better bring your toothbrush with you to the courthouse." Inasmuch as the government's case in the Black trial appears to be extraordinarily weak, here's hoping that the Black defense team's decision to keep Black off the stand does not come back to haunt them.

The right to remain silent is a right of constitutional dimension protected by both the United States and Texas Constitutions. Why does such an important right need protection? Because our human nature assumes the worst in people when they don't explain their actions.

In trial after trial I have spoken with prospective jurors who want to hear the defendant's side of the story. However, there is great risk in calling the client to the stand during trial, especially when the client might be impeached with prior convictions or a prior inconsistent statement. Nonetheless, lawyers must sometimes call the client in order to explain evidence or assert a defense.

However, as Tom Kirkendall commented, it is a risky strategy to keep the accused off the witness stand, too. This is especially true in trials like Conrad Black where jurors are prone to believe the defendant is hiding something and consequently use that against them.

It is often a difficult decision for the trial attorney whether to call the client as a witness and subject them to cross-examination. So, I'll echo Tom's thought and say here's hoping the Black defense team's decision to keep Black off the stand does not come back to haunt them.

Eyewitness Misidentification (Part I)

The ability of an eyewitness to take the stand and identify the accused as the perpetrator of a crime often provides the essential component of the prosecutor's burden of proof in a criminal case. However, an ever growing number of DNA exonerations have proved eyewitnesses indeed make incorrect identifications, even when procedural safeguards were followed. Even the Supreme Court of the United States recognized the dangers of eyewitness testimony when it stated: "The influence of improper suggestion upon the identifying witnesses probably account for more miscarriages of justice than any other single factor - perhaps it is responsible for more such errors than all other factors combined." U.S. v. Wade, 388 U.S. 218 @ 229.

The Court stated in later opinions the testifying witness must recount events with a total stranger under circumstances of emergency or emotional stress. The witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police. Manson v. Brathwaite, 432 U.S. 98, 111-12.

From the Innocence Blog:

Eyewitness misidentification is the leading cause of wrongful conviction, and Iowa State Professor Gary Wells has studied the issue for three decades. In an article published this week on the website of the Nieman Foundation for Journalism at Harvard University, Wells writes guidelines for local reporters and activists to question whether their local law enforcement agency has enacted important identification reforms based on solid scientific research.

Click here to read the article. (Nieman Watchdog, Harvard University, 6/12/07)

It is critical for the Bryan/College Station criminal defense lawyer to understand the dynamics involved in eyewitness identification cases. In future posts we'll explore the nature of eyewitness testimony, its weaknesses, and how an experienced lawyer can use improper police procedures and expert testimony to discredit the testimony of an eyewitness.

The Punishment Myth

Thanks to Ken Gibson for commenting on the recent University of Florida research finding that tougher DWI punishment laws may not deter people from driving drunk. Ken states in his post that:

I have said over and over and over, we must move our resources into education, rather than punishment. Until the powers that be, the Legislature, figures this out, they will continue to increase punishments to no avail.

Ken's comment reminded me of "The NORP Think Factor," Staige Productions (Winona, MN)(1994) where former judge Dennis A. Challeen observed:

Everyone fears punishment, and it's only normal this fear would act as a deterrent to future criminal behavior. Because of this deep-rooted belief, state and federal legislative bodies have gravitated towards "tougher laws" targeted at whatever crime seems to be loathed the most at any given time . . . Legislatures and Congress are designed to reflect the desires of their respective constituents. But do voters know best? Can their basic instincts [about punishment] be trusted when we are dealing with people who think and act differently from the norm? History books are loaded with examples of totally erroneous popular beliefs.

Judge Challeen went on to observe that judges have clearly responded to the "lock-em-up" mentality of the general public. Judges face elections, have mortgages, and have families to feed. No wonder they often succumb to public pressures, even pressures resulting from erroneous beliefs.

So the University of Florida study in telling us something we already knew - our criminal justice system is based on faulty premises. Look for future posts exploring these ideas in more detail.

Habeas Corpus in Action

For those interested in the Cathy Lynn Henderson story I commented upon in "Staying on the Cutting Edge," Ms. Henderson was granted a stay of execution by the Texas Court of Criminal Appeals based upon the work of her habeas corpus lawyers. The Court opinion is available here. Despite your views on the death penalty the Henderson case is a perfect example of the writ of habeas corpus in action.

If you recall, the habeas petition asserted that new data interpreting the victim's skull fracture could better support Henderson's claim the death was an accident. Dr. Roberto Bayardo was the Travis County Medical examiner who originally testified against Henderson. Bayardo claimed [the victim's] injuries were inconsistent with an accidental fall but recently, Bayardo reviewed the new scientific data and concluded he "cannot determine with a reasonable degree of medical certainty whether [the victim's] injuries resulted from an intentional act, or an accidental fall."

Handling the Media - An Introduction

The effective criminal defense lawyer must always consider how media coverage can affect their client's interests during the litigation process. Media reporters can be an important tool and ally if used correctly. Consequently, to use the media to his advantage the College Station criminal defense lawyer must understand how it works.

Important use of the press can often assist the lawyer in the following ways. First, press coverage can help an investigator do a better job investigating. In other words, the press can alert possible witnesses or other helpful sources to the fact you are seeking information. As a result, reporters can obtain the names of persons with helpful information who are not associated with the police and who might be willing to assist in the defense investigation.

A second important use of the media is to counter negative publicity coming from law enforcement sources. The defense lawyer wants a balanced treatment of his client's case in the press. If the other side is mounting a media campaign against their client, the responsible defense lawyer has a duty to respond to the attack.

In subsequent posts we will explore the areas in which the defense lawyer can comment in the press. Further, we will explore how the lawyer can prepare to make the best use of the media to zealously represent their client.

A Cautionary Tale

August 2002, in Albemarle County Virginia, Elisa Kelly and her ex-husband, George Robinson, hosted a 16th birthday party for their son Ryan. Assuming the party-goers were going to drink alcohol regardless of parental admonitions, Elisa and George made a deal with Ryan. First, the party would be held at the Robinson property on a remote road in Earlysville, Virginia. Second, Ryan's mom would buy the beer and serve it at the party provided no one would leave the party after drinking. Additionally, Ryan's mom would collected the car keys from the under aged guests and required all the party-goers to spend the night and not drive anywhere.

The result? Both Elisa Kelly and George Robinson were charged with 16 misdemeanor counts of contributing to the delinquency of a minor. Both plead guilty to nine counts and were sentenced to 8 years in prison by the judge, even though the prosecutor, James Camblos, had recommended a 90 day sentence. On appeal to the Virginia Circuit Court, the sentences were reduced to 27 months apiece. Those sentences were upheld by the Virginia Supreme Court.

The Lesson? This story is a cautionary tale for parents if they plan to serve alcohol to their under aged children and friends. Although a 27 month sentence may seem excessive, parents are increasingly being held criminally responsible for under aged drinking in their homes - even though they were not aware of it.

In Texas, it is a Class A misdemeanor offense to provide alcohol to a minor, except when a minor's adult parent, guardian, spouse, or adult whose custody the minor has been committed by a court provides the alcohol and the adult is visibly present when the minor possesses or consumes the alcohol. Alcoholic Beverage Code, sec. 106.06; 106.05. If convicted the maximum fine is $4000.00 and the maximum possible jail time is one year. A person can be prosecuted separately for each minor they had provided alcohol.

In college towns, like College Station, Texas - home of the Fightin' Texas Aggies - law enforcement have taken a hard line against under aged drinking. Prosecutors will not hesitate to pursue a case against a parent for supplying alcohol to drinkers under 21 years of age. Even though a parent may provide alcohol to their minor children - they cannot provide alcohol to their under aged friends. So please be careful.

Handling the Media - Be Prepared

The Bryan criminal defense lawyer must always be prepared in advance of talking with the media. Simply, the defense lawyer should know ahead of time what they want (or need) to accomplish for the client before making comments to the press. The lawyer needs a good plan and outline and needs to memorize key points and stick to them. Also, the lawyer needs to anticipate reporter's questions and even practice making comments before going "live" or before giving an interview with a newspaper reporter.

Another key point is always tell the truth. If the press ever catches the lawyer lying the client's interests will suffer and the lawyer's credibility will be damaged, extending far beyond the case at hand. The lawyer wants the press to see them as forthright and honest - rather than someone willing to say anything to win their case, even at their own expense. If a lawyer cannot answer a certain question because it is privileged the lawyer should be prepared to give the reporter a brief explanation.

We will continue to explore how the defense lawyer can represent their client in the press when we look at being polite and available.

Writ of Habeas Corpus

A short time ago, a young man contacted my office who was facing the threat of deportation because he was a non-United States citizen and had been twice convicted of possessing less than 30 grams of marijuana. The second conviction was the problem and we needed to find a way to persuade the trial court to reverse and dismiss this case. The the answer to this young man's problem was the writ of habeas corpus. We filed a writ claiming the young man's original plea was involuntary because the court had failed to advise him of the immigration consequences of his plea.

My May 31st post, "Staying on the Cutting Edge" also concerned the writ of habeas corpus. There defense lawyers were arguing Ms. Henderson's death sentence should be reconsidered because of newly developed forensic evidence. The vehicle through which the defense was making the claim was through habeas corpus.

Often a family member of a loved-one convicted of a crime has contacted my College Station criminal defense firm to inquire about legal remedies available to help the family member get out from under the burden of the conviction. Again, the answer is often the writ of habeas corpus. After a person is convicted, punishment assessed, and the conviction becomes "final," often the only legal avenue to pursue is the writ of habeas corpus. Habeas corpus, or collateral appeal, is a vehicle through which a person can attack the validity of their criminal conviction.

Over the years the criminal courts have limited habeas issues to areas involving fundamental miscarriages of justice, or the denial of certain constitutional rights. Under the United States Constitution and the Texas Constitution, a criminal defendant is entitled to certain specific rights; for example, the right to counsel, the right to compel the attendance of witnesses, the right against double jeopardy or ex post facto laws, the right to be free from cruel and unusual punishments, and the right to have a fair and impartial jury trial while being accorded procedural and substantive due process.

However, even these foundational constitutional claims may be denied on habeas corpus if it's shown at trial, or on direct appeal, defense counsel could have presented those issues but failed to do so. (called procedural default) Consequently, claims of "ineffective assistance of counsel" are often the key issue involved for the protection of a person's constitutional rights on habeas corpus.

A Texas criminal appeal lawyer familiar with appeals and habeas corpus can often give their clients an invaluable and unique perspective on their criminal case, or even their final convictions.

Unknowing Possession of Child Pornography

Recent developments in federal case law suggest that child pornographic images contained in a computer's cache files and temporary Internet files might not be properly charged against a person found in possession of the computer without some other evidence the person knowingly exercised care, custody, control, or management over the images. In the case of United States v. Kuchinski, 469 F.3rd 853 (9th Cir. 2006) the 9th Circuit Court of Appeals ruled that images of child pornography contained in the defendant's computer's cache should not have been counted for sentencing purposes when there was no evidence that the defendant was a sufficiently sophisticated computer user familiar with the behavior of cache files.

Defense lawyers argued that Kuchinski's prosecution for receipt and possession of child pornography violated the double jeopardy clause, that any use of the United States Sentencing Guidelines violated the separation of powers doctrine, and that he was improperly sentenced when all child pornography images on his computer were counted for sentencing purposes. The Court affirmed his conviction, but vacate his sentence and remand the case to the trial court for re-sentencing.

The courts have made it plain a person knowingly possesses child pornographic images when they seek out images over the Internet and then download them to their computer. However, when a person accesses a web page, the web browser will automatically download that page into the temporary Internet files. When the temporary files get full, they spill excess saved information into the deleted temporary Internet files. All of this goes on without action (or knowledge) of the computer user. A sophisticated user might know this is occurring, but most computer users do not even know these images are on their hard drive.

Texas Internet Crime Lawyers defending cases where their clients are charged with possessing child pornographic images would be wise to engage the services of a forensic computer examiner to determine where on the computer hard drive the images existed. For "unsophisticated" computer users this may be a very effective defense strategy.

Due Process Denied?

Most crimes in Texas carry a statute of limitations. (see Chapter 12, Texas Code of Criminal Procedure) The limitations period means a crime must be prosecuted within a certain time period or the prosecution will be forever barred. One reason for statutes of limitations is closure, certainty, and repose. This encourages entities such as courts and law enforcement agencies to allocate resources to more timely concerns. The limitations period also permits entities and individuals to conduct their business without fear of being sued for something far in the past. Another reason for statutes of limitations is fairness. Specifically, over time memories fade, evidence is lost or never found, and people prefer to get on with their lives without legal intrusions from the past. This idea is reflected in the various lengths of limitation periods. For example, some crimes such as murder are deemed so horrific they have no limitations period. Other less serious crimes, like misdemeanors, have a short limitations period of two years. However, if due process is delayed, is due process ultimately denied?

I had these thoughts while reading an Associated Press article about the upcoming federal trial of James Ford Seale who is charged with kidnapping and conspiracy charges for the 1964 killings of Henry Hezekiah Dee and Charles Eddie Moore in rural southwest Mississippi.

How does society value the re-examination and prosecution of long-dormant cases from an era where racial brutality was common place? Some believe it is "present day business" while others believe it is a "political movement." Will juries be fair? Or will juries believe they are supposed to come back with a certain verdict and apply the law in a certain way - only to appease the political furor over racially motivated crimes? I'd hope the prosecutors are only now bringing Mr. Seale to trial because they have uncovered new witnesses linking him to the crime or developed a new forensic angle on the case, rather than furthering some political movement.

When due process is delayed - due process is often denied. That is, what defense strategy does Seale have? He is entitled, under the United States Constitution, to the best defense his lawyers can provide. Hopefully, defense witnesses are not dead or have not forgotten key facts and details critical to his defense. If convicted, hopefully evidence mitigating to punishment still exists to help Seale prepare the best case possible for the jury.

I hope prosecutors think about these issues when deciding to prosecute decades old murder cases. Even though due process is delayed, it must never be denied.

Bad Expunction Law

Recently the Texas Supreme Court decided the case of State v. Beam. Beam is more bad law for clients who have been charged with misdemeanor offenses is Texas. The Court ruled that a dismissed misdemeanor case cannot be expunged until the statute of limitations period expires. The limitations period for misdemeanor offenses is two years. Consequently, people whom the Bryan/College Station Expunction Attorney represents, whose misdemeanor cases are dismissed, must wait until two years after the alleged offense (according to Article 12.02 of the Texas Code of Criminal Procedure) to get their records cleared.

Because of Beam, the Texas Legislature must step in to fix the problem created by the Texas Court. There may be some hope the Legislature can, and will, straighten it out. My recommendation is contact your State representative and ask them to sponsor a bill to correct the problem created in Beam. That is, ask them to support a bill amending Article 55 of the Texas Code of Criminal Procedure to permit dismissed misdemeanor cases to be expunged immediately.

Sealing Search Warrants Affidavits

The Texas Legislature is considering a new law that will allow judges to seal search warrant affidavits for up to 60 days in SB 244. Currently, a sworn affidavit filed to support a search warrant is public information once the warrant is executed. Furthermore, Texas courts have ordered the affidavit immediately available for the public. These affidavits can provide critical details about the alleged crime and explain why the police need the warrant.

Prosecutors have argued for some time the affidavits include information that could result in the destruction of evidence or put witnesses in danger. During my 17 years of practicing criminal law, both as a prosecutor and as defense counsel, I have never seen a search warrant affidavit lead to such a result envisioned by the prosecutor lobby. As a defense lawyer, I know how important these affidavits are to begin mounting an effective defense to charges. The affidavits contain details about the alleged crime and how my client might be possibly linked to a crime. Without the details contained in these affidavits I often know little about what the police are claiming my client did to violate the law.

Sealing these search affidavits for up to 60 days simply gives the State another advantage in prosecuting the citizen accused. The new law harms the public by putting a delay on an important check of police powers. These documents should remain immediately available to the public pursuant to current procedural rules and opinions by Texas appellate courts.