The Hole In The Non-Disclosure Statute

Non-Disclosure is a great way for persons to get a fresh start after running afoul of the law, getting deferred adjudication, and completing the deferred successfully. Orders of Non-Disclosure seal those records from dissemination into the public domain by the custodian of records, the Texas Department of Public Safety. However, there's a hole in the statute resulting from DWI arrest records which remain available to the public, even when the person receives a "reduction" and completes a deferred adjudication successfully.

The hole involves cases of DWI arrests where a plea agreement is reached on a "reduced" charge of obstructing a highway, reckless driving, or a like offense in which the accused is eligible for deferred adjudication (DWI is not deferred eligible in Texas). In Brazos County, the usual course involves the prosecutor adding a "Count II" to the misdemeanor complaint alleging obstructing a highway, etc. Count I, the DWI, is waived and the accused pleads guilty to the obstructing count. The court grants deferred and the client goes their merry way, successfully completing the probation.

After successfully completing the deferred the client comes back to me and asks if they can get their records sealed using an Order of Non-Disclosure. Of course they can. However, only the obstructing count will be sealed. The Bryan-College Station DWI arrest will remain on their record despite the completed deferred. Why? Because only the obstructing count was deferred, not the DWI count. Even if the clever defense lawyer includes the DWI arrest information in the Order of Non-Disclosure, DPS will not seal the DWI arrest record.

What about expunction, you ask? Excellent point. However, the problem is Chapter 55 of the Code of Criminal Procedure which provides for expunction. Chapter 55 does not authorize expunction for an arrest "unless" there was no court ordered community supervision resulting from the arrest (except Class Cs). But we know there was court ordered community supervision for the obstructing a highway count. Consequently, the person is not technically eligible for expunction of the DWI arrest and the local prosecutors have been objecting to expunction petitions on this precise issue in Brazos County.

What's the net result of this hole in the Non-Disclosure statute? Presently, even though a good DWI defense lawyer may get the prosecution to reduce a DWI to a deferred eligible offense, the accused person is stuck with a DWI arrest record that can neither be sealed, nor expunged. A big problem for young persons having made a mistake in college and now trying to develop careers in corporate America. Hopefully, the Texas Legislature will eventually fix this problem since the spirit of the Non-Disclosure law is being thwarted by a hole in the statute resulting when DWIs are reduced to deferred adjudication eligible offenses.

What's an Involuntary Breath Test?

During our last look into the coercive nature of the DIC-24 statutory warning, we noted the DWI suspect under 21 years old is informed by the police that if they give a breath/blood sample and the result is less than .08, they may still be subject to less severe criminal penalties than if they completely refused to take the test. Let's look how the Texas courts might evaluate a challenge to a breath/blood test result based on this coercive language.

By analogy, in order for a person's confession to be admissible, the confession must meet certain standards for voluntariness. Although the breath/blood test has been deemed "not testimonial" by certain Texas courts, using the confession analogy can help us fashion an argument to protect the record in a DWI prosecution where the accused is a minor and provided a breath/blood sample after being read the DIC-24.

The test of admissibility should be that a breath/blood sample was provided freely, voluntarily, and without compulsion or inducement. See Sossamon v. State, 816 S.W.2d 340 (Tex. Crim. App. 1991)(confession context). In this case, the Court of Criminal Appeals determined whether or not a confession was voluntary due to a promise. First, the court determined a promise must be of some benefit to the accused. (certainly, the promise of a less severe penalty than the accused might otherwise receive could satisfy this element.) Second, the promise was made by a person in authority. (police officers would qualify as persons in authority.) Finally, the promise was of such a character to likely influence the accused to speak untruthfully. (here's where the confession analogy breaks down somewhat)

As a general rule, the Texas cases on confessions stand for the premise that where a promise of leniency is exchanged for a confession, the resulting statement by the accused is not voluntary and inadmissible. Just like the cases on confessions, the literal language of the DIC-24 may be interpreted as a promise of leniency of less severe penalties if the suspect cooperates and provides a breath or blood sample to the police.

Next time we'll examine the need for the accused to rely upon the promise in the DIC-24 before voluntariness becomes an issue. Call a qualified Bryan-College Station DWI attorney for answers.

The Statutory Warning - Legal Coercion

The DIC-24 (or statutory warning) is the form containing legal warnings required to be given orally and in writing before a police officer can request a DWI/DUI suspect to provide a sample of their breath or blood. The necessary condition precedent to giving the warnings is that the person is under arrest for driving while intoxicated (DWI) or driving under the influence (DUI).

The statutory warning tells the person arrested that a refusal to provide a sample may be admissible in a subsequent prosecution. The form also notifies the accused of the different lengths of suspension, depending on whether the person refuses or takes the test. There is a separate paragraph that's specifically directed to persons younger than 21 years of age. The warning says:

If you are younger than 21 years of age and have any detectable amount of alcohol in your system, your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than 60 days. However, if you submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal penalties less severe than those provided for under Chapter 49, Penal Code.

By its nature, this warning is coercive since it explicitly informs the person if they take a breath test and the result is less than 0.08, they may still be subject to less severe criminal penalties than if they completely refuse to take the test. However, under the implied consent law, consent to the taking of a breath or blood sample must be voluntary.

For consent to be voluntary a person's decision must not be the result of physical or psychological pressure brought to bear by police officials. A clear reading of the DIC-24, as it relates to suspects under 21 years old, is coercive because the warning provides for less severe penalties only if the accused person agrees to provide a sample. In other words, the warning results in a person providing a sample "involuntarily." Consequently, these breath and blood test results should be attacked by DWI defense lawyers by motions to suppress evidence based on this psychological coercion. Call a qualified Bryan DWI lawyer for answers.

ABA Journal Survey on the Job Market

The ABA Journal is surveying lawyers about the job market and the current state of the economy.  They would appreciate your participation in their important survey if you are licensed to practice law.  Please visit this link and following instructions.  Thanks. 

Texas Statute of Limitations

Several cases have come into the office recently in which the statute of limitations (SOL) was a big question for the client. An expunction case, for instance, might not be ripe for filing until the SOL has expired.  Potential clients often ask why the prosecutors took so long to indict them and whether the delay can help their defense. 

In general, the limitations period is the time within which the government may file criminal charges against a person. The SOL for felonies is different than that for misdemeanors. Furthermore, there are circumstances when the limitations period is not running . . . like when the accused person is absent from the state . . . or after a person is indicted and the indictment is pending. In Texas, the statute of limitations is governed by Article 12.01 et seq. of the Texas Code of Criminal Procedure.  Following are some examples of limitations periods for common criminal charges in Texas.

There are no statutes of limitation for murder, manslaughter, and certain sexual crimes involving children.  The limitations period is ten (10) years  for certain theft cases involving real estate, theft by a public servant, forgery, injury to elderly or disabled persons, and sexual assaults not involving children.  

For misapplication of fiduciary property, securing the execution of government documents by fraud, and identity theft the SOL is seven (7) years.  For other theft charges, robbery, kidnapping, and burglary the limitations period is five (5) years. For all other felonies the SOL is three (3) years and for any misdemeanor the limitations period is two (2) years.  

Finally, the day on which the offense was committed and the day on which an indictment or information was presented is excluded from the computation of time.  

Reporting Child Abuse

A member of my church contacted me a few weeks ago about their duty to report child abuse in the context of child care situations and spiritual counseling. After some online research in the Texas Family Code, I was able to compile some guidelines for action.

First, a person commits an offense if the person has cause to believe a child's physical or mental health or welfare has been, or may be, adversely affected by abuse or neglect and knowingly fails to report it. This offense is a Class B misdemeanor offense, punishable by up to 180 days in county jail and a $2,000.00 fine. See sec. 261.109 Texas Family Code (TFC)

The next question is "who is a child" within the meaning of this reporting requirement? Section 101.003 TFC defines a child as: "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes."

"Abuse" covers a comprehensive array of acts or omissions including mental or emotional injury, physical injury resulting in harm or the threat of harm to the child, failure to make reasonable efforts to prevent abuse by another person, and sexual conduct harmful to a child's mental, emotional, or physical welfare. See sec. 261.001 TFC.

Persons required to report child abuse are "professionals" and "persons who are traditionally responsible for a child's care" including parents, guardians, foster parents, school personnel, and personnel at public or private child-care facilities providing services for the child. A "professional" is an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of clinics or health care facilities providing reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

If you're a professional or a person traditionally responsible for a child's care and have questions about your duty under law to report child abuse, contact a qualified Bryan|College Station criminal defense lawyer to discuss these important issues and get advice you need to avoid running afoul of legal duties to report child abuse.

In the Defense of Experts

The prosecution often uses expert witnesses to meet their burden of proof in a criminal case. Common examples are breath test technical supervisors in a DWI prosecution; forensic chemists who analyze DNA in a sexual assault case; fingerprint examiners who might testify about the identification of latent prints in a burglary or theft case; or forensic psychologists who testify about the issue of future dangerousness in a capital murder prosecution.

The defense can often put expert witnesses to good use, as well. For example, an expert witness familiar with the particular cultural issues involved in a child abandonment case might help the jury understand why conscientious parents from another culture might leave their children unattended for an extended period of time. An expert familiar with neuro-psychology might testify for the defense about abnormal brain development in a case where insanity is an issue. An expert might also testify for the defense about the suggestibility of child witnesses in a child abuse case. The list goes on and on.

However, before a witness is qualified to testify in any criminal trial their qualifications and testimony must meet threshold requirements under the Rules of Evidence. The Rules which apply to the testimony of experts are as follows:

Opinion Testimony by a Lay Witness: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue in the case.

Testimony By Experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion.

Bases of Opinion Testimony by Experts: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

So, as you strategize with your criminal defense lawyer about defending charges against you, ask them how they might employ the use of experts to assist in your defense. Although experts will charge a fee for their services, the money is often well spent and a make-or-break investment in your future.

Other Expunction Laws

Over the last several weeks we've looked at the process of expunging felony and misdemeanor criminal arrest records under Article 55 of the Texas Code of Criminal Procedure (CCP). There are other laws providing the right to expunge records under more limited conditions.  Let's examine them. 

Article 45.051 CCP provides for deferred adjudication in Class "C" misdemeanor cases. This article applies to cases filed in justice and municipal courts.  Upon the successful completion of these deferred adjudications, the statute also provides for dismissing the complaint and expungement under Article 55.01 CCP.  Even charges that include the operation of a motor vehicle (like minor driving under the influence) can be deferred and upon successful completion can be expunged under Article 55.01.  See Article 45.0511 CCP. 

For alcohol-related offenses under the Texas Alcohol Beverage Code (ABC), the code contains a provision for the expunction of convictions.  Article 106.12 ABC states that a person convicted of not more than one (1) violation under the ABC, upon attaining the age of 21 years, may apply to the court in which he was convicted to have the conviction expunged.  Any such application must contain the person's sworn statement he was not convicted of any violation other than the one he seeks to expunge.  The person is then released from all disabilities resulting from the conviction and the conviction may not be shown or made known for any purpose. Common types of offenses expungable under this section are DUIs, MIPs, and MICs.

Finally, under certain circumstances Article 58.003 of the Texas Family Code (FC) provides for the sealing of juvenile records.  If the juvenile was not adjudicated the sealing can occur immediately.  If there was an adjudication, there is a two-year waiting period during which no intervening convictions for a criminal case may occur.  In addition, for juvenile felonies, the person must first reach the age of 21 years, must not have had the case transferred to criminal court, nor can the records have been used as evidence in the punishment phase of a criminal trial.  Also, the person must not have been convicted of a felony after reaching the age of 17 years.   The FC also says the sealed records can eventually be destroyed if the records did not relate to a violation of a felony or a misdemeanor punishable by jail, the person is now at least 21 years old, and the person has not been convicted of a felony after becoming 17 years old. 

Procedure for Expunging Criminal Records

Over last few weeks we've looked at a person's right to expunge records relating to a criminal case for which they were arrested. We looked at misdemeanor expunctions here and felony expunctions here. Once a person's right to expunge records is established the procedure for obtaining this valuable Order is as follows:

A person who is entitled to expunction of records may file a petition for expunction in a district court for the county in which the person was arrested or the county in which the offense was alleged to have occurred. The petition must be verified (sworn-to and notarized) and must include the following information: (1) the person's full name, (2) sex; (3) race; (4) date of birth, (5) driver's license number, (6) social security number, (7) the person's address at the time of the arrest, (8) the offense charged and the date the offense allegedly was committed, (9) the date of the arrest, (10) the name of the county where the person was arrested and municipality (if applicable), (11) the name of the agency that arrested the person, and (12) the case number and court of offense. The petition must also include a list of all the law enforcement agencies, jails, detention facilities, magistrates, courts, prosecutors, state and federal depositories of criminal records, and any other agency or other official who had any involvement in the case.

After the petition is filed and the clerk's fees are paid, the district court will set the petition for a hearing no sooner than thirty (30) days from the filing of the petition. Each official or agency named in the petition must be given reasonable notice of the hearing by certified mail, return receipt requested, or secure electronic mail, electronic transmission, or facsimile transmission.

If the district court finds that the person is entitled to expunction of any records and files that are the subject of the petition, the court must enter an order directing expunction. When the order of expunction order becomes final the release, maintenance, dissemination, or use of the expunged records and files is prohibited. The person arrested may now deny the occurrence of the arrest and the existence of the expunction order, unless the person is questioned under oath in a criminal proceeding about the arrest for which the records were expunged. Even then, the person may only state that the matter in question has been expunged.

Expunging Felony Arrest Records

Last week we examined the expungement of misdemeanor arrest records. Today we'll look at the more difficult case scenario . . . Expunging the felony arrest record.

Regarding felony charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a felony is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:

(1) The person was tried for the felony and was acquitted;

(2) The person was convicted of the felony and subsequently pardoned;

(3) The person was convicted of the felony and subsequently acquitted by the Texas Court of Criminal Appeals; or

(3) An indictment or information charging the person with the commission of a felony was not presented against the person, the statute of limitations period expired before the date on which the expunction was filed, the person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.

If a felony charge was dismissed prior to indictment the arrest record is expungable, provided the statute of limitations has expired. Chapter 12 of the Texas Code of Criminal Procedure establishes the limitations period for felonies and other offenses. The minimum period of limitations for a felony is 3 years. However, depending upon the offense the limitations period can be 5, 10, or 20 years. For offenses like murder and manslaughter, there is no statute of limitations.

However, if a felony charge was indicted, then a person can obtain an expungement of their records only if:

(1) The indictment was dismissed or quashed: and

a. The limitations period expired before the date on which the petition for expunction was filed; or

b. The court finds that the indictment was dismissed or quashed because the presentment was made because of mistake, false information, or other similar reason indicating the absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void: and

(2) The person was released, the charge did not resulted in a final conviction, the charge is no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person has not been convicted of a felony in the five years preceding the date of the arrest.

Next week we'll look at the procedure for expunging criminal records and why the services of a qualified Bryan|College criminal defense lawyer are critical to success.

Expunging Misdemeanor Arrest Records

Potential clients often call asking whether their particular case is expungable. My first question is whether the person was arrested for a felony or a misdemeanor offense? If arrested for a misdemeanor, my next question is always "how was your case ultimately resolved?" Was the case dismissed? Were you found guilty and placed on probation? Did you received deferred adjudication? Were you found not guilty after a trial? Have you been pardoned?

Regarding misdemeanor charges, the Texas Code of Criminal Procedure, art. 55.01 provides that a person who's been arrested (custodial or non-custodial) for the commission of a misdemeanor is entitled to have their records and files relating to the arrest expunged if several potential conditions exist:

(1) The person was tried for the offense and was acquitted;

(2) The person was convicted and subsequently pardoned; or

(3) An indictment or information charging the person with the commission of a felony had not been presented against the person, the statute of limitations period (usually 2 years) expired before the date on which the expunction was filed, the person had been released, the charge had not resulted in a final conviction, the charge was no longer pending, there was no court ordered probation for any offense (other than a Class C misdemeanor), and the person had not been convicted of a felony in the five years preceding the date of the arrest.

Under this statute, if a misdemeanor charge resulted in a dismissal the arrest records could be expunged. Dismissal could result if the trial court granted a motion to suppress evidence and the case was dismissed. If a motion for directed verdict was granted the arrest is subject to an expunction. Any termination of a misdemeanor prosecution that did not result in a conviction or probation (including deferred adjudication) can be expunged. In other words, no probation, regardless of the type or whether it was successfully completed, is expungable.

Next week we'll look at felony arrest records . . . much more difficult to expunge! If you have a misdemeanor arrest that might be expungable, call a Brazos County criminal defense lawyer to explore your options.

Deferred Adjudication and Non-Disclosure Unraveled

Many people have heard of deferred adjudication. Deferred adjudication typically occurs by way of a plea bargain when the accused person pleads guilty to an offense, but the judge "defers" a finding of guilt while the person is on probation. Assuming the person complies with the terms of their probation and completes deferred, the original guilty plea does not result in a conviction and the charge is "dismissed."

The average client believed when they completed deferred adjudication successfully, their "criminal record" would be wiped clean. In other words, after being discharged from deferred, the average client (and even some lawyers) thought the charge was set aside with a finding of not guilty and, therefore, the arrest and charging records would not not be available to the public. Some people even believed a person who successfully completed deferred was eligible for an expunction of their records.

Regretfully, this misunderstanding often came home to roost when folks found out these records were available to the general public in any courthouse. The records were also available through the Texas Department of Public Safety. Making matters even more difficult for clients was the plethora of Internet providers who purchase criminal history data from the state's and make the records available on the Internet.

However, the Texas legislature finally realized that persons who received deferred adjudication and completed probation successfully needed relief from the stigma attached to having pled guilty to a criminal offense. Consequently, it passed a law allowing for an "Order of Nondisclosure" in certain cases when deferred had been completed. The law stated: "After notice to the state and a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice, the court shall issue an order prohibiting criminal justice agencies from disclosing to the public criminal history record information relating to the offense giving rise to the deferred adjudication." Tex. Gov't Code sec. 411.081

A person who received deferred adjudication for a misdemeanor can often petition the court for an Order of Nondisclosure immediately upon the successful discharge from probation. However, there is a two-year waiting period following the completion of probation for persons on deferred for indecent exposure, public lewdness, disorderly conduct, obstructing a highway, false report, interference with an emergency telephone call, harassment, cruelty to animals, unlawfully carrying a weapon, or making a firearm accessible to a child. All persons who received deferred adjudication for a felony charge must wait five years before becoming eligible for a nondisclosure order.

During the waiting period, the person must not have been convicted of, or placed on deferred adjudication for, any offense "other than" an offense that resulted "only" in a fine under the Texas Transportation Code. A person shall not be granted an Order of Nondisclosure if that person has been previously convicted or placed on deferred adjudication for any of the following: (1) An offense requiring registration as a sex offender; (2) Murder, capital murder, injury to a child, elderly or disabled, endangering a child, violation of a protective order, stalking, or aggravated kidnapping; or (3) Any other offense involving family violence.

If an Order for Nondisclosure has been issued, information is not available by a public records request. A person who has obtained a nondisclosure order may deny the occurrence of both the arrest and prosecution to which the information relates "unless it is being used against that person in a subsequent criminal proceeding." All private entities that collect and compile criminal histories must comply with nondisclosure orders or face penalties and/or prosecution for releasing information in violation of the order.

If you believe you might be eligible for an Order of Nondisclosure, don't hesitate to contact the Bryan|College Station Expunction Attorney to discuss your options.

Only A Ticket for Marijuana?

Several potential clients called and were confused about a relatively new law allowing police officers to simply "ticket" a person for possessing marijuana rather than formally arresting them and taking them to jail.

In 2007 the Texas legislature passed a law that provides police officers the discretion to cite and issue a summons for certain Class A and B misdemeanors, rather than arresting the person and booking them into the county jail. The new law is found in Article 14.06 of the Texas Code of Criminal Procedure. It applies to the possession of small amounts of marijuana (under 4 oz.) and other offenses such as criminal mischief under $500, graffiti, theft under $500, theft of service under $500, possession of contraband in a correctional facility, and driving while license invalid. Practically speaking, the person appears before a magistrate, just like when booked into jail, but must be released on a personal recognizance (PR) bond.

Importantly, the police are only given discretion to ticket persons who live in the county where the offense allegedly occurred. If you live outside the county the officer is obligated to take you to jail. The bottom line? Whether you receive a "ticket" for possessing marijuana, or are arrested, you still face the same misdemeanor charge . . . a Class A misdemeanor for possessing between 2 and 4 ounces; or a Class B misdemeanor for possessing less than 2 ounces.

If you've been ticketed, or arrested, for possessing marijuana or any drug or controlled substance, you need an experienced Bryan|College Station Drug Charges Lawyer to assist in your defense.  Please give us a call. 

Applying For a Texas Pardon

Last week we looked at Texas executive clemency (pardons) and the opportunity convicted persons have to restore their citizenship rights through full, conditional, or innocence based pardons.  Now a short study of how folks go about applying for a pardon.

The pardon process begins with a lengthy application process. Before beginning the Board of Pardons and Parole recommends the applicant obtain the following documents: (1) offense reports for any arrests; (2) certified court documents for these arrests including complaints, indictments,  judgments, orders of dismissals, etc; (3) an official criminal history statement from their local county sheriff; and (4) three current letters of recommendation from persons other than family members who are familiar with the applicant.

The official pardon application form is found at the Board of Pardons and Parole website.   After downloading the handy form allowing an applicant to fill in information using a standard word-processing program, the person carefully completes the application using the pardon application checklist, also provided.

There are limitations to applying for executive clemency in Texas, however.  The Board will not consider a full pardon requests for the following cases: treason, arrests with no conviction, deferred adjudications, early dismissals from probation, Class C misdemeanors, out-of-state felony convictions, federal convictions, or applicants who were denied a full pardon less than one year prior to the present application. 

An application for a pardon in Texas can be a tricky process.  If you are interested in seeking a pardon, contact a qualified Texas criminal defense lawyer to assist you in preparing the application. 

Texas Executive Clemency

Several potential clients have called recently asking about applying for a pardon. In Texas, the governor has the authority to grant clemency (a pardon) upon the written recommendation of a majority of the Texas Board of Pardons and Paroles. Clemency includes full pardons, conditional pardons, pardons based on innocence, commutations of sentences, and emergency medical reprieves. Capital cases are an animal all their own and won't be discussed in this article.

A full pardon restores certain citizenship rights forfeited by law as the result of a criminal conviction, such as the right to serve on a jury, the right to hold public office, and the right to serve as Executor or Administrator of an estate. A full pardon removes barriers to some, but not all, types of employment and professional licensing. Licenses are granted at the discretion of the state licensing boards of each profession, and it's advisable to contact those boards directly to learn whether a pardon is necessary or sufficient to restore licensing eligibility. A person who is convicted and who receives a full pardon is entitled to an expunction of all arrest and court records relating to the conviction. Importantly, an arrest is not automatically expunged upon the grant of a full pardon.

Interestingly, in Texas voting rights are automatically restored when a person discharges a felony sentence. Effective September 1, 1997 the legislature restored voting rights to felons convicted in Texas once a person fully discharges the felony sentence, including any term of incarceration, parole, or supervision, or completes a period of probation ordered by any court. See Texas Election Code, sec. 11.002.

A person with a conditional pardon remains subject to conditions of release. A conditional pardon does not restore civil rights or rights of citizenship, and the governor can revoke the pardon if a person does not comply with the conditions of release. A pardon based on actual innocence exonerates the person of the crime and erases the conviction. To consider a pardon for innocence, the Board requires either evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge in a state habeas action indicating actual innocence.

Applying for executive clemency is a service many Texas criminal defense attorneys provide for prospective clients.  Next time we'll look at the application process and how a good defense lawyer can help the client navigate these tricky waters.

Miranda and the Psychology of the Confession

Last week we looked at police interrogation techniques as they related to Miranda.  We learned police interrogations were carefully designed, guilt presumptive processes which worked by increasing a suspect's anxiety, instilling a feeling of hopelessness, and distorting their perception of choices . . .  all leading them to believe they will benefit by making a statement to the police.  

In review, we learned the police wanted to first isolate a suspect, allowing them to sit alone and in sparsely furnished surroundings.  This increased stress and increased the person's incentive to free themselves from the situation.   Then by confronting the suspect outright the police hoped to increase anxiety and induce a sense of hopelessness.  

Investigators regularly confront suspects and emphasize to them the only question remaining open is "why" (and not "whether") they committed the crime. In other words, the police presume the person under interrogation is guilty. Additionally, some of the most common police tactics include appealing to the person's self-interest, confronting them with actual (or purported) evidence of guilt, undermining their confidence in denials, appealing to the importance of cooperation, offering moral justifications for committing the crime, and minimizing the seriousness of the offense.

The Miranda court recognized the prevalence and use of these police interrogation tactics and concluded isolation was one of the most significant aspects of these methods.  They concluded custodial interrogations contained inherently compelling pressures that undermined a person's ability to make free and informed choices whether to speak to the police. 

So, never talk to the police when you are the focus of a criminal investigation without the aid of a qualified criminal defense lawyer.  You have the right to remain silent.  Use it! People commonly underestimate the investigator's ability to obtain their incriminating admissions.  So don't feel compelled to discuss your case with anyone except your attorney. 

Except For My Confession . . . I Have Nothing To Say

I've lost count of the cases that would go much smoother for clients had they not confessed to the police.  I've lost count of the cases in which the police had no case at all . . . but for my client's confession.  DWIs, burglaries, sexual assaults, drug cases. It doesn't matter.  A confession kills the case.  And like the title says, if not for a confession, many people accused of crime would have nothing to say at all.  With so many cases going south because of confessions, it's a wonder why people talk to the police at all. 

I've been reading an excellent paper on police interrogation tactics to help shed light on the confession.    Mourning Miranda by Charles Weisselberg.   Others have commented on this writing here and here.   My hope is to educate potential clients about police tactics and the psychology of the confession.  This knowledge might help them say NO when the police ask whether they want to "waive their right to remain silent."   We'll start with this introductory post to kick-off  a short series on police interrogation and tactics.

Weisselberg started by distinguishing between an “interview” and an “interrogation.” An interview is non-accusatory. It's “free-flowing and relatively unstructured.”  Its purpose is to gather information.  An interrogation, on the other hand, is “accusatory,” conducted “in a controlled environment,” and involves “active persuasion.”  Officers are trained and understand the difference between an interview and an interrogation.  During an interview police establish rapport with a suspect and use verbal and non-verbal information to decide whether, in their view, a suspect is telling the truth.  If officers become “reasonably certain of the suspect’s guilt,” they may initiate an interrogation.  Consequently, an officer’s initial judgments about truth, guilt, and culpability determines whether the suspect will be interrogated.  In contrast to interviewing, interrogation is a “guilt-presumptive" process.

Next consider the nine potential components, or steps, used in many police interrogations.  First is the confrontation statement by the interrogator. Then the interrogator interjects a reason for the commission of the crime, usually a morally acceptable one.  Then the interrogator prepares to overcome the suspect's denials. Steps four through six guide the investigator in overcoming the suspect's reasons why he would not, or could not, have committed the crime.  In step seven the police offer a statement supporting the suspect's morally acceptable reason for committing the crime.  And the final steps are take the oral statement and convert it into a written confession. 

Next time we'll look at these components in more detail.  In the meantime, check out this Brazos County criminal defense article on how to handle encounters with the police.

Texas Probation Travel Issues Resolved

In April 2008, persons on probation in Texas had their out-of-state travel plans placed on hold when an assistant Texas attorney general met with the Texas Judicial Advisory Council (JAC) and told the judges they lacked the authority under the Interstate Compact for Adult Offender Supervision rules to allow anyone on probation in Texas to travel to another state which had not agreed to take-on the person's supervision.  Texas judges feared they they might be liable to lawsuits without specific authority to grant temporary travel permits if probationers they allowed to travel to other states committed bad acts while outside Texas.

Several former criminal defense clients contacted me after their probation officers told them they could not freely travel outside Texas for business and personal reasons.  The judges were requiring probationers to file motions and appear before them to individually examine each request to travel out-of-state.  This was a mess for both probationers who needed to travel for short periods of time and for judges and their court-coordinators handling the requests. 

Fortunately, both probationers and judges were encouraged to learn of the June 24, 2008 Interstate Commission for Adult Supervision (ICAOS)  advisory opinion.   The commission clarified the travel issue and helped judges to discern their personal liability for allowing probationers to travel outside Texas.  According to the opinion probationers under supervision for "lesser" misdemeanors were not covered by the ICAOS rules. The judges who convicted them would decide whether they could travel outside the state.  This was the old rule and typical travel requests would be made through the probation officer without involving the judge. The opinion also said  it's up to the judges whether to permit other probationers ("higher" misdemeanors & felonies) covered by the ICAOS rules to leave Texas for less than 45 days.   

The opinion provided judges a blanket of protection from lawsuits if they were ever sued for a probationer's conduct while outside the state of Texas.  The opinion also helped probation departments efficiently process travel requests from persons needing to leave Texas for business or personal reasons.  Contact a Texas board certified criminal attorney if you have any questions.

Retrograde Extrapolation and The Intoxilyzer 5000

The present installment in this series on the Intoxilyzer 5000 involves the concept of retrograde extrapolation. Retrograde extrapolation is the process of calculating the alcohol concentration of a person at a time earlier (the time of driving) than the time of a breath test.  Retrograde extrapolation is not technically a defense against the science or technology of the Intoxilyzer 5000. However, it's a key component in the defense of any DWI breathtest case in which the Intoxilyzer was used to obtain an analysis of a person's breath.  

At the time of driving the breath alcohol content (BAC) of a person's breath could be less, the same, or more than the BAC at the time of the breath test. This is because an individual's BAC is reflected by an alcohol concentration curve beginning at the low point when there is no alcohol in the person's blood. It then rises as alcohol is absorbed (absorption phase) into the bloodstream until it reaches a peak, that is, the maximum alcohol concentration.  Finally, the curve falls as the alcohol is eliminated (elimination phase) from the bloodstream to the low point when there is no alcohol left. This describes an alcohol concentration curve. 

In a previous post, we learned the Intoxilyzer 5000 takes two readings from two separate breath samples provided only about two minutes apart.   For the purposes of drawing an alcohol concentration curve (ACC) these two samples constitute only a single reading.  An accurate ACC would require many more points of data than the Intoxilyzer 5000 provides. Consequently, the "single" reading provided by the machine does not provide enough information to determine whether a person is in the absorption phase or the elimination phase at the time of the breath test.

Consequently, if a person is tested while in the absorption phase their BAC at the time of the test will be higher than their BAC while driving. If tested while in the elimination phase their BAC at the time of the test could be lower than while driving, depending on whether they had reached their peak before or after the stop. Obviously, the greater the length of time between the driving and the test, the greater the potential variation between the two BACs.

This uncertainty exposes yet another weakness with using the Intoxilyzer 5000 to prosecute those accused of driving while intoxicated. The informed Bryan|College Station DWI|DUI defense lawyer will understand retrograde extrapolation, and it's limitations, to help sow seeds of doubt among jurors who are deciding whether the client's BAC at the time of driving was higher, lower, or the same as the time of the breath test. Call a Bryan DWI-DUI defense lawyer for help. 

Intoxilyzer 5000 Machine Tolerance

Every machine created by man has tolerance for error including the Intoxilyzer 5000. For the Intoxilyzer this error tolerance is reported in grams of alcohol/210 liters of breath. It's just another source of erroneous breath test results for persons accused of DWI.

During a subject test the Intoxilyzer will first analyze the vapor from the reference sample. The result of this analysis must be within +/- 0.010 g/210 liters of the predicted value which is entered by the technical supervisor. If the reference sample result is not within the machine's tolerance for error the Intoxilyzer will invalidate the test.

The Intoxilyzer then purges the sample chamber with room, or ambient, air. The machine analyzes this air blank for alcohol and other interfering chemicals. If the air blank contains anywhere from 0.00 g/210 to 0.019 g/210 liters of alcohol, the intoxilyzer will report the blank as 0.00 g/210 liters. The Bryan|College Station criminal defense lawyers defending DWIs should use this to their client's advantage when cross-examining the technical supervisor. The accused should be given the benefit of this error tolerance and 0.019 should be subtracted from the Intoxilyzer 5000 test result.

Finally, the Intoxilyzer must verify the results of the suspect's breath samples, agreeing within +/- 0.020 g/210 liters. If breath samples agree within this tolerance the machine will validate the test. If the results do not agree it will invalidate the test. Why is this tolerance important to those accused of DWI?

The machine always measures two samples of a person's breath about two minutes apart from each other. These samples must agree within machine tolerances to be valid. For instance, if the first sample of breath was measured at 0.10 g/210 liters, the second sample could be anywhere from 0.08 to 0.12 g/210 liters to satisfy the error tolerances. The accused should be given the benefit of this error, as well. The DWI defense attorney should be locking the technical supervisor in at the lowest possible valid result, not forgetting to also subtract the 0.019 for the air blank. Call the best Bryan, Texas DWI defense attorney for help!

The Blood:Breath Partition Ratio

In our previous study of Henry's Law we learned when a volatile chemical (ethanol, for instance) is dissolved in a liquid (blood) and brought into contact with a closed air space (the lungs), an equilibrium is formed and there exists a fixed ratio between the concentration of ethanol in the air space and the concentration in the liquid. (at a given temperature and pressure)  In a closed system the amount of ethanol in the airspace above the liquid is proportional to the amount of ethanol in the liquid.  We also learned Henry's Law can only provide an approximation of the ethanol in human breath since the law applies to a closed system at a given temperature and pressure. The lungs are not a closed system. 

The Intoxilyzer 5000 is designed to analyze a sample of a person's breath based on Henry's law.   Moreover, the Intoxilyzer is designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample.  This occurs because of the scientific assumption embodied in Section 49.01(1) of the Texas Penal Code.  This assumption implies that 210 liters of breath contains the same amount of alcohol as 100 milliliters of blood.  The assumption about human physiology required to support this involves the partitioning of alcohol from the blood.  But is this assumption a defensible scientific fact?

The problem for the Intoxilyzer is assuming the partitioning of alcohol from the blood into the breath is 2100:1.  That is, for every 2100 parts of ethanol in the blood there is one (1) part ethanol in the breath.   Again, section 49.01(1) of the Texas Penal Code embodies this assumption.  However,  not all persons partition alcohol from their blood based upon this ratio. 

Studies show partition ratios as low as 834:1.   Other studies show partition ratios ranging between 1555:1 and 3005:1. (Dubowski, 1985)  The important issue for the criminal defense lawyer is the Intoxilyzer 5000 OVERESTIMATES the alcohol concentration of someone blowing with a partition ratio less than 2100:1.  According the the Dubowski study, a person with a partition ratio of 1555:1 would cause the Intoxilyzer 5000 to overestimate by 26% the breath alcohol concentration compared to that of a simultaneous blood sample. 

The Intoxilyzer 5000 does not measure a person's blood:breath partition ratio.  It is calibrated with the assumed value of 2100:1.  So, we never know what a person's actual partition ratio is at the time of a breath test.  Consequently, the Intoxilyzer becomes an incorrect indicator of a person's actual blood alcohol concentration when the partitioning of alcohol from their blood deviates from the assumed 2100:1. Call a Bryan, Texas DWI/DUI attorney for questions about your DWI charges. The best Bryan DWI lawyer can help you!

Mouth Alcohol and The Intoxilyzer 5000

Mouth alcohol is another potential source of error with the Intoxilyzer 5000.  If alcohol is regurgitated into the mouth (by burping or belching) and absorbed into the mouth tissues, it will effect the breath test result by overestimating the amount of alcohol attributed to the breath sample. Even the act of forced exhalation required to provide a breath sample can cause the rib cage to squeeze and force stomach gases into the breath resulting in a false overestimation of breath alcohol content. 

Generally, it takes about 10-12 minutes for mouth alcohol to dissipate and not effect the test. However, if a person has belched within about 10 minutes of the test, the mouth alcohol will falsely contribute between .01 and .03 to the result.   The breath test operator protocols require the officer to "be in the presence of" (but not observe) the DWI suspect for 15 minutes to assure they don't belch or place foreign objects into their mouth effecting the test.  As a practical matter, though, the officer is rarely paying much attention to whether the suspect is burping or belching.  They are typically busy filling out paperwork, driving the suspect to the police station, talking with other officers, or getting the Intoxilyzer warmed-up for the test. If a person burps silently there's no way the officer is going to detect it. 

The Intoxilyzer 5000 does attempt to detect mouth alcohol by what is called the "slope detector."  The slope detector is a computer program designed to measure the rate at which alcohol concentration changes inside the Intoxilyzer 5000.  If the concentration changes too fast (i.e., too "steep" of a slope), the machine registers an alert and the test is aborted.  The slope detector must be “satisfied” before the Intoxilyzer 5000 will produce a result. The problem is that empirical studies show the slope detector does not always work as advertised.  Moreover, Texas does not have a standard procedure approved for use by the technical supervisors to verify the slope detector feature of the Intoxilyzer 5000 is working properly and conforms to the manufacturer's certification. 

At trial the technical supervisor will generally testify: (1) they don't know what process was followed in developing the slope detector program; (2) they don't know of any treatises or literature that support the use of the process followed to develop the program;  (3) they don't know whether the program has been published or offered for publication in any peer-reviewed journal;  (4)  they don't know whether the program been described in any peer-reviewed journal; (5) they don't know whether any other scientists use or recommend use of the program;  (6) they don't know whether there's a known or potential rate of error; and (7)  they don't know whether there are any studies showing the slope detector actually works as advertised.

The next installment in this series will discuss the 2100:1 Blood:Breath Partition Ratio and more on Henry's Law. Call a good Bryan-College Station DWI defense attorney for help!

Chemical Interference and the Intoxilyzer 5000

Thanks to Scott Henson at Grits for Breakfast for plugging my current series on the Intoxilyzer 5000. And thanks to verb for the illustration included here. Today we'll look at another potential source of error with the Intoxilyzer - volatile chemical interference.

The Intoxilyzer 5000 uses a method of quantitative analysis called infrared spectroscopy to determine how much ethanol is present in the breath sample of a DWI suspect. Simply put . . . different molecules absorb infrared light at specific wavelengths. (actually the chemical bonds holding the atoms together in the molecule absorb the light) But, if one knows the absorption wavelength of the molecule you're looking for, like ethanol, you can design a detector to identify how much radiant energy is absorbed in a sample. Then you can deduce by reliable scientific means (the Lambert-Beer Law) the number of absorbing molecules in the sample. But what if other molecules absorb energy at the same wavelengths? Won't, then, the Intoxilyzer mistake those molecules for ethanol? Will this result in an overestimation of ethanol in a person's breath?

The Intoxilyzer uses multiple wavelengths of infrared energy to look for ethanol. The Texas Breath Alcohol Testing Program Operator Manual admits that other substances absorb infrared energy at some of the same wavelengths as ethanol. Acetone, for instance. Acetone is a volatile organic chemical found in the body of those suffering from diabetes. Consequently, if an interfering chemical, like acetone, is in the breath of a DWI suspect the machine might register an overestimation. The manufacturer of the Intoxilyzer has built in a detector to look for acetone. Fair enough. But what about other interfering chemicals the Intoxilyzer does not look for?

Chemicals like methanol and toluene also absorb at wavelengths similar to ethanol. Methanol is found in solvents and varnishes. Toluene is found in paints, thinners, and glues. If a person comes into contact with these interfering chemicals (through occupational exposure, for example) and takes a breath test, they run the risk of higher false test results. That is, the Intoxilyzer 5000 mistakes the interfering chemicals for ethanol.

Interestingly, the Intoxilyzer can be fitted with a sample capture device used to preserve a sample for re-analysis at a later date. This sample preservation device could be used to check for quality control and interfering chemicals present. However, in Texas this device is not currently utilized on the Intoxilyzer 5000. Another interesting fact? Texas has no standard procedure approved for use by their technical supervisors to verify the interfering chemical detection feature of the Intoxilyzer 5000 works properly and conforms to the manufacturer's certification as advertised.

My next post on the Intoxilyzer 5000 will concern another source of potential error . . . mouth alcohol. Please stay tuned. And contact a Bryan|College Station DWI Defense Lawyer with questions about your charges. The best Bryan, Texas DWI attorney can really help!

Temperature's Rising

One of the most neglected areas of attack upon the Intoxilyzer 5000 by Texas criminal defense lawyers defending DWIs is the assumption the temperature of a DWI suspect's breath is 34 degrees Centigrade (or 93.2 degrees Fahrenheit).

Heat is the driving force behind Henry's Law and the inner workings of the Intoxilyzer 5000. Heat causes the ethanol in a person's blood to evaporate into their breath inside the lungs. The higher the temperature, the more ethanol goes into the breath.

The Intoxilyzer 5000 is certified to give accurate results for water solutions (the reference sample) of ethanol carefully maintained at a temperature different from the human body. However, the machine is never checked for accuracy using samples provided by living human beings at a core body temperature of 98.6 degrees Fahrenheit.

The Intoxilyzer programing assumes the breath temperature from a DWI suspect is 93.2 F. But not all investigators agree that expired human breath is at this temperature. This is critical since the higher the core body temperature, and thus higher breath temperature, the more the Intoxilyzer will overestimate the breath alcohol concentration of the person providing a sample. Amazingly, the Intoxilyzer as no way to measure a person's breath temperature at the time a sample is collected.

Studies show for every 1.8 degree Fahrenheit (1 degree C) increase in breath temperature there is a 6.8% overestimation of the measured breath alcohol, compared to that of a simultaneous blood alcohol sample. This means an Intoxilyzer 5000, measuring a person blowing into the machine with a breath temperature of 98.6 degrees F, is calculating an ethanol concentration about 20% too high. Consequently, many persons providing breath samples are being unjustly charged with DWI and are being wrongly convicted.

Next time we'll look at the Intoxilyzer 5000 and organic chemical interference. Call the best Bryan-College Station attorney to help you.

More On Henry's Law

Earlier this week I posted here about the problems with the Intoxilyzer 5000. This machine is used nationwide by law enforcement to obtain breath samples from DWI suspects and to analyze the sample for ethanol concentration. More on Henry's Law.

The reference sample device on the Intoxilyzer is designed to deliver a sample of vapor containing a known or predicted amount of ethyl alcohol (ethanol). The reference sample device is supposedly used to verify the accuracy and calibration of the machine. A reference analysis is conducted as a part of each subject test to ensure the machine is properly calibrated.

The theory of operation of the reference sample device is based upon Henry's Law. In a closed system, like the diagram above, the amount of ethanol in the airspace above a liquid (lavender dots) is proportional to the amount of ethanol in the liquid (blue dots). Henry's law applies to closed systems at a given temperature and pressure. The Intoxilyzer 5000 does a good job at accurately predicting the amount of ethanol in the reference sample.

However, when the Intoxilyzer 5000 is used to predict the amount of ethanol in human breath the situation changes dramatically. If you assume the liquid in the closed system illustrated here is human blood, and the airspace illustrated is the air in the lungs, even a lay person can quickly recognize potential problems.

First, the human lung is not a closed system. Pressure in the lungs is constantly changing as we inhale and exhale. As the pressure changes so does the amount of ethanol in the airspace above the blood in our lungs. Furthermore, the temperature of the system is critical. If the solution temperature is low, the results will be low. If the solution temperature is high, the results will be high.

The problem with the Intoxilyzer 5000? It assumes a constant pressure and it assumes a predicted temperature within the system. If the pressure is changing then Henry's Law can only be used to approximate the concentration of ethanol in human breath. Moreover, the Intoxilyzer does not measure the temperature of the suspect's breath sample. Without knowing the precise temperature the Intoxilyzer can only make assumptions that might not bear out in a particular case. If the temperature of the person's breath is different than what the machine assumes it is, then the results obtained will be erroneous. An experienced Bryan-College Station DUI defense lawyer can explain Henry's Law.

More about temperature problems in a later post.

The Intoxilyzer 5000

Fellow defense lawyer, Mark Bennett, started a Texas DWI breathtest case this week. Here's what I hope Mark knows about the Intoxilyzer 5000:

1. The Intoxilyzer 5000 is designed to analyze a sample of a person's breath based on Henry's law. When a volatile chemical (ethanol) is dissolved in a liquid (blood) and brought into contact with a CLOSED air space, an equilibrium is formed and there exists a FIXED RATIO between the concentration of ethanol in the air space and the concentration in the liquid. (at a given temperature and pressure) At equilibrium one can measure the concentration of ethanol in the gas phase and predict the concentration of ethanol in the liquid. The problem with the human lungs? They are not a closed system and Henry's law does not exactly apply.

2. The Intoxilyzer is designed to produce a breath alcohol result exactly corresponding to a simultaneous blood alcohol sample. The problem is the assumption that the partitioning of alcohol from the blood into the breath is 2100:1. Not all persons partition alcohol from their blood based upon this ratio. Studies show partition ratios as low as 834:1. The Intoxilyzer 5000 will overestimate the alcohol concentration of someone blowing with a partition ratio less than 2100:1.

3. The Intoxilyzer 5000 assumes the test subject is in the elimination phase, rather than the absorption phase. It is rarely known whether the person is still absorbing alcohol from their last drink when the breath test is administered.

4. The Intoxilyzer assumes the temperature of the person's exhaled breath is 34 degrees Centigrade. Core body temperature for humans is 37 degrees Centigrade. For every breath degree over 34, the Intoxilyzer 5000 overestimates the breath alcohol content by about 6.8%. Moreover, the machine is not designed to measure the temperature of the suspect's breath.

5. Mouth alcohol can lead to erroneous breath sample results. The Intoxilyzer 5000 claims to handle the mouth alcohol problem with a computer program called the "slope detector." There have been no scientific, peer reviewed studies showing the slope detector works as advertised.

6. As Mark stated in his blog post, the margin of error for the Intoxilyzer 5000 is +/- 0.010 for the reference sample, and +/- 0.020 for the suspect's breath sample.

7. Beyond this, the sample chamber can have up to .019 gms alcohol/210 liters breath alcohol inside when the machine is reading a 0.00.

There are other problems with the Intoxilyzer 5000. I hope Mark is using these blatant problems to his client's advantage this week during trial. A Bryan DUI-DWI defense attorney can also help you understand the 5000.

From His Porch

My friend and fellow defense lawyer, Mark Bennett was interviewed by reporter, Mary Flood, from the Houston Chronicle. Mark's interview is here and worth reading. Mark also looks pretty good standing on his front porch either leaving for, or coming from, the courthouse.

From Bear Crawls to Courtroom Paddlings

Last month I wrote here about an incident with my son at his elementary school. He was required to perform bear-crawls (corporal punishment) as discipline for misbehaving.

Now a Texas judge has been sued for giving parents the option of paddling their children in open court. The Brownsville Herald reported that judge Gustavo Garza was giving parents the option of spanking their children for truant behavior, or have the child face criminal charge and fines. The Associated Press reported a preliminary injunction was sought to stop Garza's use of paddles in his courtroom. Check out the video from News Channel 5 (KRGV) for a picture of the offending lumber.

Certainly a novel approach for rehabilitating truant youngsters in South Texas. What do you think? A good paddling vs. a juvenile adjudication and fines. To harsh? Over the top? Maybe a courageously good idea? I'd love to hear what you think.

Sumbit Your Photo Now

So what do you think about this story? Howie Altholtz, Boston attorney and marketing director at Ruberto, Israel, and Weiner PC wants to publish a glossy pinup calendar featuring attractive male and female attorneys to benefit charity, that is, the Greater Boston Legal Services. Altholtz developed a website (Beautiful Lawyers) through which pinup hopefuls can submit their photographs, or photographs of others, for review and possible publication in the calendar.

The ABA Journal posted a piece (no pun intended) commenting on Altholtz's intriguing idea for raising money for a good cause. A sharp (but post-feminist) comment by attorney Ellen Barshevsky set the tone for some great discussion:

Why do WE always have to be objectivized? You know these men only want to see pretty women in skimpy bathing suits , and I’ll bet most of the men will be dressed to the nine’s in their 6 piece suits. Also, why is it that these people are focusing on physical beauty, when it is our MINDS that differentiate us from other bimbos. I went to law school to be a professional, not to show off my body to anyone. I would NOT buy this calendar product, even though it purports to be gender neutral and for a good cause. Face it, without pretty WOMEN, no one will buy it to see the guys. Women should NOT be viewed as MEAT.

So what do you think? Good fun or another blatant exploitation of the beautiful female (and male?) form?

Taking Your Medicine

Sometimes we need to take what is coming around. Since I'm a believer in the Biblical adage about "reaping" what we "sow," I'm surprised Austin, Texas criminal defense lawyer, Adam Reposa, is not just taking his medicine after being found in contempt of court for making a lewd gesture in court while discussing a plea bargain with prosecutors and a county court at law judge.

Last April the Austin American-Statesman reported here about the civil contempt hearing in which Reposa was alleged to have made a gesture simulating masturbation while in open court. He was sentenced to 90 days in the county jail, as a result. The ABA Journal reported today that Reposa was appealing his sentence to the Texas Court of Criminal Appeals.

Ninety days in county seems fair to me for something as stupid as this. Heck, even Reposa was reported to have believed the sentence was fair while he was escorted out of the courtroom in handcuffs at the conclusion of the contempt hearing. This guy ought to take his medicine and stop wasting the court's time.

Why so hard on my fellow defense lawyer this early Monday morning? Guys like Reposa give hardworking, ethical, and committed defense lawyers a bad name. There's a price to pay for utter stupidity and what's coming around for Reposa seems earned to me.

Sect's Children Illegally Seized?

The Dallas Morning News is reporting the Third Court of Appeals in Austin, Texas ruled that Texas Child Protective Services had no right to seize more than 400 children living on the West Texas FLDS ranch. (h/t to my friend Ed Spillane for this lead) More to come.

Update: Text of Court of Appeals Opinion here.

Are Bear Crawls the Answer?

Last week my son was involved in some horse-play with another boy during PE class. After getting a talking-to by the teacher, he and the other boy were subjected to what many consider corporal punishment. My son was required to do "bear-crawls" across the gym floor while the other boy did "wall-sits." Both methods of discipline caused a reasonable amount of physical discomfort (pain) and humiliation. Some parents were appalled the boys would be subjected to such treatment in this enlightened age of adaptive behavior. I backed the PE teacher 100%.

Last month, writing for the Washington Post, Penn Associate Professor Marie Gottschalk hypothesized our country was degrading into two separate societies: One in prison and one not. She noted:

The Pew Center on the States released a study in February showing that for the first time in this country's history, more than one in every 100 adults is in jail or prison. According to the Justice Department, 7 million people -- or one in every 32 adults -- are either incarcerated, on parole or probation or under some other form of state or local supervision.

These figures understate the disproportionate impact that this bold and unprecedented social experiment has had on certain groups in U.S. society. Today one in nine young black men is behind bars. African Americans now comprise more than half of all prisoners, up from a third three decades ago.

Last week in Wichita, Kansas the governor signed a bill prescribing tougher penalties for theft and sex crime offenders. Kansas state senators called the legislation a tough new stance on crime. Criminal defense lawyers remarked the state needed to focus on solutions to crime other than additional lengthy imprisonment.

At home, local prosecutors are less apt to resolve cases without jail time or a conviction. I recently represented a high school student caught by police carrying a cup of beer. She was under aged, scared, and told the police she was her sister and 21 years of age. Within minutes the officer deduced my client was lying. When confronted she owned-up to her lie. No more than two minutes elapsed from the lie to the truth. However, the officer arrested this 17 year old for making a false identification to a police officer. It was like pulling teeth for the prosecutor to consider reducing the case to a ticket level offense. They were dead-set on getting a conviction or putting this impressionable young girl on probation for a two-minute indiscretion. Why so hard I asked? "We see hundreds of these cases and we treat everybody the same."

I concluded the social experiment gone awry which Dr. Gottschalk debated was not the mass incarceration of our citizens. Rather mass incarceration was an unintended consequence of another social experiment gone awry - eliminating corporal punishment in homes and schools over the past 30 years. In other words, I don't think my son will be horse-playing anymore in PE class, unless, of course, he enjoys the bear-crawls.

How many of the 7 million people either incarcerated, on parole, or probation would not be consuming governmental resources had parents been more aggressive in the discipline of their children? How many of the 7 million would be free of the system had schools been free to use reasonable corporal punishment to adapt the behavior of misbehaving kids? I certainly understand the potential for abuse when using pain and humiliation to redirect behavior. But I also see how incarceration rates have increased in relationship to the elimination of corporal punishment in our schools.

I know. I know. It's not politically correct to spank children anymore. But maybe corporal punishment is part of the solution Kansas defense lawyers were talking about. If my kid's PE teacher wants to make punishment a memorable experience - something feared and something to avoid in the future - something that redirects behavior and makes my son act right, I don't have a problem with it.

So maybe we need to begin a new social experiment. Bear crawls and wall sits. It worked for my kid. Why won't it work for your's or any of the 7 million in the system already?

The Rudder of Our Free Expression

Over at the "Criminal Defense" blog, Miami criminal defense lawyer Brian Tannebaum published an intriguing post about his belief the criminal defense bar has been gutted by fear. Although I'm not in total agreement with his premise, I recognized his post was written from the heart and I always appreciate courage in a fellow defense lawyer.

Brian noted he'd authored a piece about a local judicial election where he remarked how the judges running for office suddenly became "nice" during their campaigns. Brian said he began getting calls from judges, upset he would publish his thoughts for the voting public to see. Bottom line? Brian backed down and removed the post, which he deeply regretted.

Brian articulated the difficult relationships that might result because of his honesty. He worried clients would suffer adverse consequences might they come before the judges Brian had ruffled during the campaign:

I regret taking it [the post] down. I actually don't have it anymore. Wish I did, because today, I'd put it right back up. I'm embarrassed I fell to the pressure of a few judges who for some reason didn't like my commentary . . .

Few defense lawyers would dare publicly say that judge so and so did something they thought was wrong, or that a prosecutor is chronically unreasonable, or that one of their own stole a case from them by undercutting their fee just to pay the rent. Sure we have our rules of professional responsibility, but what about our obligation to be advocates and not just businessmen and women.

Recognizing his failure to stand up for what he truly believed, Brian declared:

What happened to us, the criminal defense bar? Is it our job to stand up for justice, or merely to make sure we don't piss anyone off while representing those that the "Law and Order TV Generation" feels don't deserve more than an hour of legal process (including a confession to the prosecutor in his office)? Has it become all about the business of our profession?

Although Brian's experience was largely anecdotal he finally seemed to have discovered the outlet for his individual voice. For those of us who blog and affix our names to our opinions, it can be very edifying to see our writings affecting thought, careers, maybe even elections. The justice Brian seeks requires us to step out on a limb and tell others how we see it, whether we write about prosecutors, judges, or other lawyers. When we share our introspection with dignity, when we tell the truth, and when we leave our hurt feelings, anger, and personal inadequacy on the sideline, we shed light on the inner workings of a system that often needs fixing. What better way to help fix a problem than by exposing it.

So, I applaud Brian for his courage to admit a serious mistake. The mistake of letting fear guide the rudder of his free expression. I look forward to the next election and how he might expose those problems in the system that need to be fixed.