Thursday, May 22, 2008

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.

Wednesday, May 21, 2008

Using the Badge

Looks like all you need to get special treatment in College Station, Texas is be the Lieutenant's kid. This story in Sunday's Bryan Eagle had me thinking about the corrupting influence of power in our local police department. College Station Police Department Lieutenant Donnie Andreski's daughter was cited by a rookie cop for a traffic violation in October 2007. Andreski believed the evidence did not support the charge. But rather than letting the justice system do its work, Andreski intervened to apparently pressure prosecutors to dismiss the ticket.

The Eagle reported on the circumstances of the citation:
Andreski's daughter, whose name [was] redacted from the 392-page file obtained by The Eagle through an open records request, was cited Oct. 9 for disobeying a police officer's traffic direction.

Officer Mica Lunt, who was in training at the time, was directing traffic at a school crossing at Rock Prairie Road and Rio Grande Boulevard. He said he motioned for traffic to stop at a crosswalk, but the Andreski teen "did not attempt to stop until almost at the intersection and finally slammed on [the] brakes and slid through the intersection, eventually coming to a stop," according to reports.

The citation was supported by Officer Jamie Urbina, who was Lunt's field training officer and witnessed the incident.

The rookie officer's supervisor (Lt. Capps) reviewed the ticket:
Lt. Capps agreed to check into the ticket and make sure it met the designation "disobeying a police officer." Capps met Oct. 10 with Officer Lunt, who confirmed to him that Andreski's daughter had been speeding in a school zone, didn't stop at the crosswalk and "obviously committed some kind of traffic violation," Capps said during the investigation.

"Sounded to me that she needed a citation, so we kind of left it at that," Capps told the internal affairs investigator.


The ticket was ultimately dismissed by the City prosecutor and no further citation was issued.

During the internal affairs investigation Andreski said he didn't want to wait to let the ticket take its natural course through the municipal court system because he thought the charge was incorrect:
Andreski heard about the ticket from his daughter and said he was concerned that "disobeying a police officer's traffic direction" was an improper charge because it must show that a person willfully disregarded the instruction. Andreski said his daughter didn't see the officer.

"No one tried to cut a deal or do anything underhanded or sneaky," Andreski said. "There were no orders given to dismiss the ticket. My request was that we look into it and see if the elements of the offense were met.

"When the Police Department has received similar complaints, the PD always attempts to correct any mistakes made by their officers," Andreski said. "I expected to be treated the same as any other citizen. I could have taken it to court, but the outcome would be unknown." [emphasis added]
Well, join the club Lieutenant!

Andreski's handling of this situation reeked of favoritism and a double standard. What made him think his judgment of the facts was superior to that of the two officers working the intersection while his daughter barreled through? If the original ticket did not suit the evidence, why wasn't she cited for another traffic violation after the original citation was dismissed? I also think the College Station City Attorney as questions to answer.

A big concern I had was Andreski's (apparent) arrogance following the internal affairs investigation. His failure to recognize his mis-application of power was appalling. Joe Blow off the street must take his ticket to court and face the "unknown" outcome which Andreski feared. What's the problem with requiring his daughter to do the same? Using his special influence to avoid risks common to us all deserved an internal affairs investigation.

I hope the CSPD learned a valuable lesson . . . using the "badge" is much different from wearing it. We expect our police officers to exercise the highest degree of integrity and professionalism. We expect our officers to back each other. But we also expect police officers, especially those wielding great power, to exercise the utmost care in peddling their special influence.

Tuesday, May 13, 2008

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?

Wednesday, May 7, 2008

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.

Monday, May 5, 2008

Finding Truth is TV Law

Much to the dismay of prosecutors around the State of Texas, the purpose of a criminal trial is not to discern the "truth." Rather the purpose of a trial is to resolve a dispute between the government, who carries the burden of proof, and the accused.

I've thought about this today while reading the plethora of posts from, Grits, Simple Justice, Robert Guest, and others about Craig Watkin's call for criminal sanctions against prosecutors who withhold exculpatory evidence from the defense while seeking convictions. TDCAA message board posts from prosecutors piqued my curiosity about the true aim of criminal trials in America. From prosecutor Stacey Brownlee:
I've got no problem with something like this (bar sanctions not criminalization) as long as its not just for prosecutors but for the defense too. If its the truth we are looking for, let's get to the REAL truth !!
From Rob Kepple:
. . . let's assume we want to criminalize failure by a prosecutor to turn over exculpatory evidence.

If that is the policy of the state, seems that in the post-conviction world we would also want to criminalize the failure of a habeas/defense attorney to turn over any INCULPATORY evidence at that stage. That includes, of course, impeachment material, criminal records, witness statements -- everything that supports the existing conviction that today falls under Brady for the prosecutor when it comes to negating guilt or reducing punishment.
Prosecutors have long enjoyed jury arguments about discerning truth. Such arguments lessen the government's burden of proof and shift it to the accused. But a defense lawyer would be foolish to object before the jury. Can one imagine what the jury would think while a defense lawyer argued "we are not here to find the truth?" I was taught this tenet of governmental jury manipulation in baby prosecutor school years ago.

No. The notion of trial as a vehicle for finding truth is TV law. You won't find this aim in the Constitution, the Code of Criminal Procedure, the Penal Code, or the Rules of Evidence. Rather, trial is simply a means by which disputes are resolved. Truth finding is, at best, an afterthought. At worse, it's a fiction created by the side bearing the burden of proof to shift and lessen it to more easily obtain convictions.

Prison Time for Prosecutors?

An intriguing article in the Dallas Morning News yesterday highlighted the call by Dallas County DA, Craig Watkins, for Texas legislation supporting criminal charges for prosecutors who withhold exculpatory evidence from the defense. (see AP story here) Rodney Ellis, Texas State Senator, who authored law creating the compensation system for wrongfully convicted inmates said he would support the criminalization. The Dallas Morning News reported further:
Wrongful convictions, nearly half of them involving prosecutorial misconduct, have cost Texas taxpayers $8.6 million in compensation since 2001, according to state comptroller records obtained by The Dallas Morning News. Dallas County accounts for about one-third of that.

Of the 45 wrongful conviction cases for which [Texas] has paid compensation, at least 22 involved prosecutors withholding evidence from the defense.
In the same vein, Ellis said:
. . . the total amount paid so far confirm[ed] his suspicion that wrongful convictions are far more common in Texas than people realize. Taxpayers should expect to pay "considerably" more as the number of exonerations rises.
Currently, there is no law in Texas allowing criminal charges for prosecutors who intentionally withhold exculpatory evidence. But the Innocence Project of Texas plans to push for such laws in the next session of the Texas legislature.

Wouldn't this light a fire under the backside of prosecutors all over Texas? But the prosecutor lobby is strong in Austin and the chances of such legislation passing are very low. I like the idea and the debate, though. Such laws would keep the prosecution constantly on the look-out for evidence exculpatory to the accused. Further, I see nothing wrong with holding prosecutors to a high standard with very harsh consequences for those who intentionally sidestep the rules. The tougher issue? What sanctions would be appropriate for a prosecutor withholding evidence by their negligent or reckless conduct? Maybe a discussion for another day.