The Defense Perspective

Rule #13: "Never Give Up, Never Surrender"

2012-01-22T11:35:00.000-06:00

I didn't write this Rule for me, I wrote it for my friend. "Never Give Up, Never Surrender." I lived this Rule so she could see it in action. I wanted to show her the value of pushing forward . . . even in the face of certain defeat. I wanted her to learn about our professional responsiblity to fight until the end, until we had no more opportuntiy to fight, until we had no more energy to fight. She was the best I ever had. The brightest, the fastest, the one who made sure I was never attacked from behind. The one who made sure I did my best.

I wrote this Rule because I knew where she was going. She didn't know yet even though she thought she did. But I knew she was headed straight for hell-on-earth and I was trying to teach her how to survive there . . . to give her something to grasp when life seemed impossible to live.

When she reads this she'll know it's about her. And she now understands about hell-on-earth. About fighting battles and wondering why she doesn't win. About doing her best, but coming up short. I know she's also learning we must often retreat and regroup . . . before we can attack again. That retreating is not giving up, it is not surrender. Sometimes we must retreat to find our energy and our center again. Our reason for pushing forward in the face of uncertainty, and even defeat.

I won't allow her to quit because I understand her dream. I understand it because it was my dream, too. Because we all need someone pushing us from behind and pulling us from the front to get to our dream. There will be no giving up! There will be no surrender!

Rule #11: Deny, Delay, & Defend

2012-01-17T09:25:00.000-06:00

Ok, this one isn't original. But it's still a good one and worthy of my list. The 3 Ds of criminal defense work; Deny, Delay, & Defend.

The first thing the police want is a confession. Let's face it . . . a good confession makes their job so much easier. My advice to folks . . . the targets of criminal investigations . . . is to keep your mouths shut. Speak to no one on the planet, except your criminal lawyer. And for goodness sake, if you're going to say anything, at least DENY it. Since once you admit, you are probably toast.

I love DELAY. It gives me time to work. It mucks-up the system and judges loath it. It helps my case get old, mildewed, and smelly. We don't want speedy trials. Speedy trials are bad for the accused. Provided my client is keeping out of trouble, DELAY can do wonderful things to a criminal case. Witnesses forget, get in trouble themselves, move off. Prosecutors get sick of my case . . . and me. I love it. It works. As long as they haven't convicted my client, we've got hope. DELAY whenever you can.

Finally, DEFEND. Defend only when you must. Frankly, defending a criminal case often doesn't work out well for the accused. It's a fact of life. Juries are unpredicable, they sometimes want blood. Judges are mean. Prosecutors, well, prosecutors need to get a life. In any case, DEFEND if you must, but only as a last resort. It's tough out there, you know.

The Victim of an Illegal Police Detention

2012-01-15T16:25:00.000-06:00

I enjoy walking in my neighborhood late at night. It's quiet and dark. The constellations are beautiful and I often see shooting stars streak across the night sky. Now and then I'll see a man-made satellite move like a freight train low on the horizon. I'm regularly startled by white-tailed deer snorting deep in the woods. I occasionally see their dark silhouettes cross my path. Coyotes yip and howl and get all the neighborhood dogs in an uproar.

But last night on my walk I was the victim of an illegal police detention. You see, my late night walks in the neighborhood had created quite a stir. Little did I know the local sheriff's department had a BOLO out on me. A tall suspicious man, dressed in black gloves, dark trousers, camouflaged coat, and dark cap had been regularly seen in the neighborhood . . . late at night. Sometimes he was seen running. Always avoiding oncoming traffic. But you see, my neighbors just didn't get out much. That was my favorite fleece jacket, my most comfortable black jeans, the warmest wool ski cap I've ever owned, and the best pair of cycling gloves on the market.

So you know I was astonished at about 11:00pm when a sheriff's deputy came screaming down Indian Lakes Blvd. with his emergerncy lights rolling and his spotlight shining directly in my eyes. I was almost home . . . no more than 1/2 a mile from my house. "Sir, can you come with me please?" Ha! I knew it was a bad stop. The officer had no "reasonable suspicion" I was involved in any criminal activity. Just a bunch of noisy neighbors who didn't get out much wondering why some strange guy in camouflage and gloves was out walking in the dark each night.

I could have kept walking but I decided to submit to the officer's authority. Even though I knew this was a bad stop, I also knew I'd get patted down if I refused to cooperate. I also didn't want the Benchmade 581 Barrage assisted-opening folder I had in my pocket mistaken for a switchblade. I would have beaten that rap, but not the ride downtown. So I stopped and told the officer who I was.

You see, I know most of the cops in town. When I identified myself the officer immediately asked if I was the "lawyer Gustitis." "Yes I am," I said. Out on my evening walk, enjoying the stars and the yipping coyotes. He apologized for not recognizing me, seeing how my wool cap was pulled down over my ears and forehead. He explained how the neighbors had been calling in a suspicious person report for weeks, but they'd never been able to catch the guy. I laughed and said, "Yea, that's me." No home invader, no burglar, just little-old-me trying to get some excercise and enjoy the night air. But I still didn't tell him about my Benchmade, heck, he might have taken it for his own.

The kids got a kick of the story. I told them tonight I'm wearing my full-faced leather ski mask. That should get the neighbors in a stir. You see, they just don't get out much. If they did, they'd know it was little-old me out for a bit of excercise.

Rule #29: Think First, Talk Second.

2012-01-12T18:19:00.001-06:00

I learned this one the hard way . . . clients hanging on my every word; their future at stake. Jurors, as well . . . watching to discern my true intentions. Am I a liar selling shoes or a truth teller with a righteous cause? Opposing counsel listens intently for signs of weakness, an admission, or a mistake which might give them the advantage.

Mostly, I'm talking on the run, thinking on my feet, responding to the most recent volley from an opponent. Which words do I choose? Which tone of voice . . . quick words or slow? How do I utter them with sincerity, compassion, indignation? What is needed at that precise moment to achieve my purpose? Well, I've got to think about it first.

Law school teaches you none of this. Only the trenches helped train me to think about each word and its effect in the moment just before release. Only the trenches taught me to practice my delivery in my mind . . . just before the hearer hears. The hard way, my mistakes, taught me the way.

I train my people to think like this. It's difficult, it's unnatural, they don't like to do it. But it's necessary. I train my people to think about their words before they make a sound. It can be the difference between making a sale, or losing a client. The difference between maintaining credibility or losing it, or promising too much.

It's necessary . . . it's Gustitis' Rule #29. Think before you speak. You'll never regret it.

Gustitis' Rules

2012-01-11T15:55:00.001-06:00

Throughout the fictional CBS television series NCIS, Leroy Jethro Gibbs periodically reveals his numbered rules to live by . . . his Code. (Gibbs' Rules) Rule #1 is "Never screw over your partner." Rule #2 is "Always wear gloves at a crime scene." Rule #15 is "Always work as a team." There are over fifty rules in all. Rules which he learned over the course of his life as a Marine Corps sniper and NCIS Special Agent.

In my work as a criminal defense attorney I - like Gibbs - have developed a set of rules . . . my Code. Rule #1 is "Always keep your promises." Rule #6 is "Read everything in the file." Rule #22 is "Wear a suit." I've got over 40 rules to live by. My rules have come from my life in the legal profession, but extend further into everyday life and character development, as well. In the coming weeks I'll be posting Gustitis' Rules, my Code, here on my blog. Stay tuned.

Often Times It's All About the Energy

2011-10-10T12:13:00.002-05:00

Here's an important way to inject YOUR energy into a trial. YOUR energy is important. YOUR energy helps persuade. Trials are often a battle of energy: YOURS v. THEIRS. You are always on the prowl for ways to inject the appropriate energy. Remember this: "You are in charge. From the beginning impress the judge you are not one to be taken lightly. "A fine line between confidence and arrogance. Watch you don't cross into arrogance, you'll lose credibility. "Look at the judge directly. Speak decisively and with authority. "Forget "if it please the court." Address the judge as "judge" and not as "your honor." If you need a moment in the courtroom, take it without asking. "If you want to show a document or piece of evidence to a witness, grab it off the prosecutor's desk and approach the witness, without asking. "If you want to ask some objectionable question on cross-examination, go ahead and ask. "Force them to deal with it. "Act like you're in charge. Doing so injects YOUR energy into the battle. Often times it's all about the energy and the side with the most energy wins."

The Acquittal of Amanda Knox

2011-10-05T12:40:00.000-05:00

Amanda Knox was convicted of murdering her Italian roommate in 2009. She was sentenced to 26 years in prison. However, in a dramatic turn of events Amanda was acquitted by an Italian appeals court this past week and set free. The appeals court reversed the conviction based, partly, on a report that called into question DNA evidence used by prosecutors to convict her, and her then-boyfriend Raffaele Sollecito. Here are the interesting aspects of Amanda's case and Italy's criminal justice system that are very different from our own.

First, Amanda's appeal from her murder conviction was not a typical appeal we'd see here in Texas or the USA. Amanda received a full new trial, in front of a new jury, with opportunity for a "second bite at the apple." We call that a "trial de novo." In some Texas lower courts a person can appeal and received a trial de novo. But in most courts an appeal is based strictly on the record of the original trial. The questions are whether the jury had enough legal evidence to convict and whether there were errors occurring which might be reversible. The volume of criminal cases going through the USA systems is so high that trial de novo is an impracticable method of appeal. It would consume too much time and too many judicial resources.

The second aspect of the case is more frightening. In Italy, the government has the right to appeal an acquittal! That is, if the prosecutors lose THEY get a second bite at the apple, as well. The Knox prosecutors have vowed to appeal the acquittal. In Texas (and the USA), in contrast, once a person is acquitted any further prosecution is barred (prevented) by our concept of Double Jeopardy. That means a person cannot face conviction a second time if the government did not convince the jury to convict at the first trial. It's a Constitutional right under the 5th Amendment.

Luckily, Amanda Knox is now safely home in Seattle, Washington. Authorities say if Italy's appeal court reversed the acquittal, ordered a new trial, and Amanda was again convicted, her extradition back to Italy is highly unlikely.

You Know What I Miss Most About You?

2011-10-02T13:18:00.001-05:00

During my visit to China a few years ago a fabulous Chinese woman, named Louise, was my interpreter. I was there for only a few days but Louise turned out to be so much more. She was my protector, my facilitator, and my friend. In a land truly foreign to me, she helped me succeed and feel safe. I loved her for helping me. In the years to come I agreed to support Louise each month with a small financial contribution to assist in her mission to spread the Gospel of Jesus Christ throughout China. Just lately I agreed to continue my financial support and expressed my desire to return to China sometime soon. Following is a quote from her email thanking me:

I pray that Father could arrange time for you to visit China again soon. You know what I miss most about you? Your tight hug! Chinese seldom hug each other, and I'd never been hugged that tight before. :-)

I hope to visit China again to see and hug Louise once more. And to those of you who I've tightly hugged like this . . . ? You know who you are! It's because I love you, too.

True Trial Lawyering

2011-09-24T12:29:00.002-05:00

In this year's edition of Texas Super Lawyers, Attorney Robin Gibbs was interviewed about his 40 year life as a commercial litigator. Gibbs answered a question about the volume of work required to be a successful trial lawyer and how he achieved a work-life balance. Gibbs said,

"One of the happily and sadly inexorable truths about being a trial lawyer is you have to work enormous hours. It is a very interventionist lifestyle and there is just no way around it. If you're not prepared, it's going to show, and it's not going to go well for you. There's just no way I've ever seen to avoid that aspect of it; and that's a lifestyle choice because it ripples through your entire life."

His answer struck a chord with me since my experience as a criminal defense lawyer was the same. The fresh-faced, aspiring young people who cross my path are taught this lesson. I don't know if they learn, but I try my best to teach them the life of a trial lawyer is very difficult. It's often thankless. It often feels like failure. Not many people truly understand the sacrifice we make to perform at our best. And Gibbs was right. If we don't invest the hours our performance will show. The jury might not know. Our client might not know. But the judge will and so will our opponent. It's embarrassing to come up short, looking like an idiot, because we didn't prepare.

But that won't be happening around these parts. Nope, it never will.

Depositions in Criminal Cases

2011-09-19T10:02:00.002-05:00

Criminal defense lawyers have a duty to investigate their client's case and interview witnesses. The clients expect it and so do the courts. The Court of Criminal Appeals has repeatedly held that defense counsel "has a responsibility to seek out and interview potential witnesses . . . and the failure to do so may be ineffective, if not incompetent . . . "

To this end, in this month's "Voice for The Defense," William Copeland writes about interviewing State's witnesses through a seldom utilized article of the Texas Code of Criminal Procedure, (art. 39.02). Copeland writes:

The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. There is more law supporting your right to take depositions than you might realize.

Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough. You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.

So criminal defense attorneys have an out when confronted with a witness who refuses to speak to them, or the defense investigator. Use the Code of Criminal Procedure to compel the uncooperative witness to talk. Furthermore, interviewing State witnesses is essential in providing effective assistance of counsel.

Honored by Texas Super Lawyers

2011-09-15T09:52:00.001-05:00

Stephen Gustitis Lawyer in Bryan, Criminal Defense Attorney TX : Super Lawyers

New Texas Laws Take Effect Thursday

2011-08-31T14:39:00.003-05:00

New Texas laws go into effect September 1, 2011. A package of bills proposed by the Innocence Project of Texas will go onto the books, overhauling eyewitness practices by law enforcers, ensuring that if DNA evidence exists and is available to prove a person's innocence then it will be tested and creating uniform standards regarding the collection, retention and storage of biological evidence. Cory Session - brother of Tim Cole, a Fort Worth man who died in prison for a crime he didn't commit - now serves as the policy director for the Innocence Project and supported these bills. HB 215, SB122, SB 1616.

The Romeo and Juliet law is geared to spare teens and young adults who have consensual sex from being labeled sex offenders. It prevents a young defendant from having to register as a sex offender if he or she had consensual sex with someone 15-years-old or older and there is less than a four-year age gap between the couple. SB 198

Texas minors who like sexting - or sending sexually explicit pictures or messages, generally from one cell phone to another - better watch out. Until now, prosecutors either dropped the case or had to prosecute minors under adult pornography laws. Starting Thursday, youth who sext and get caught can be charged with a misdemeanor - which can lead to jail time with repeated offenses. Not only that, but underage Texans convicted of sexting will take a state-sponsored educational class about the dangers of sexting - with one of his or her parents. However, the sexting conviction may be removed from the youth's record at the age of 18. "Here's the message to parents -- pay attention to this new technology," said state Sen. Kirk Watson, D-Austin, who carried this bill. "Pay attention to your kids. Know what it is they're doing with regard to text messages, sending images and that sort of thing, and take the time to talk to them." Senate Bill 407

And my personal favorite. Victims of domestic violence will now be able to not only cover themselves, but also their pets, under protective orders. Victims have said this is important because they often have to leave pets behind when fleeing violence and their abusers may threaten to kill or injure the pet. SB 279

Contact your local Bryan|College Station DWI defense attorney for questions about these changes in the law.

The Weakness of Police Lineups

2011-08-29T16:08:00.003-05:00

A recent New Jersey Supreme Court case may change the rules for how juries (and judges) treat evidence from police lineups. The Court's decision applied many years of eye-witness identification research showing that eye-witness procedures are flawed and can result in mis-identifications. The decision went on to attached consequences for police, and other law enforcement, who fail to take necessary precautions to reduce the subtle pressures applied to eye-witnesses to make an identification. Such pressures often result in mistaken identifications, which send innocent people to prison. The most important aspect of the research mandated two practices: First, that lineups are blinded and administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and second, photo arrays should be presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

Performance Guidelines in Criminal Cases (2)

2011-07-18T15:08:00.004-05:00

Last week we saw that the State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" early in 2011. The Guidelines provided a standardized "how to" of potential courses of action and best practices for every stage of a Texas state criminal proceeding. That is, from arrest through direct appeal. The Guidelines were detailed. However, they were not designed to micromanage the competent defense of a criminal case. Rather, the Guidelines created a framework through which criminal defense attorneys could deftly exercise their professional judgment. And just as importantly, the Guidelines were not designed as disciplinary rules. They were not designed as hard-line standards of practice when evaluating ineffective assistance of counsel claims. Instead, the Guidelines were a compilation of tools for use by defense attorneys, judges, and county officials to improve our criminal justice system.

Performance Guidelines in Criminal Cases

2011-07-14T15:07:00.005-05:00

Criminal defense lawyers face unique problems and challenges. The criminal law is complex. Criminal procedure is complex. Every case presents legal and factual problems that can only be solved through time, effort, and expense. Unlike prosecutors, court-appointed defense lawyers have no easy access to investigators, experts, or even the fact witnesses.

The State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" in January 2011. The Guidelines are a step-by-step guide to what lawyers should do in defending criminal cases. They remind attorneys that certain actions should be considered in every case regardless of the funding issues, or problems in local practice. Similarly, the Guidelines remind judges and county officials that lawyers have work to do and steps to take and that defenders must be paid no matter how constrained counties feel about their budgets.

The right to counsel is the most basic guarantee of our criminal justice system. Without a good lawyer, innocent citizens may be convicted of crimes they did not commit and people who need another chance may never get one. The Guidelines encourage defense lawyers to perform to a high standard of representation and to promote professionalism in the representation of persons accused of crime.

Going Straight for the Heart

2011-07-11T11:35:00.004-05:00

My day in court went straight to the heart. The docket was short with the typical Monday morning assortment of expunctions, non-disclosures, and civil matters. If you've hung-out reading my ramblings over the years, you've learned the courthouse is a daunting place. Not many up-lifting things happen as lawyers argue over motions, plea bargains, damages, and the like. However, this morning was remarkably different. Two babies were up for adoption and an army of family accompanied the soon-to-be parents.

I speculated the couple was unable to conceive children on their own. I don't know this for sure, but the way mom and dad explained to the judge the wonder and excitement of the moment lead me to speculate as such. Some old neighbors of mine were in the courtroom taking pictures and beaming, as well. The judge got hugs and kisses. The lawyer got some, too. I was just inches away from the action and felt myself holding back a desire to jump in and get some love, too, just for being there.

It was a wonderful moment, even for a casual observer. I don't recall the last time I witnessed so many people in one place, happy, and looking toward the future with so much anticipation. I knew those young children were in the best of hands. I knew the couple's dream of a family had just come true. The judge thanked me for patiently waiting my turn as he took his place in photograph after photograph.

It was a great moment in court this morning. The moment went straight to the heart. I was glad to have been a part of it.

US Supreme Court Rules Like a Kindergartener

2011-06-30T13:36:00.008-05:00

Last week the U.S. Supreme Court disappointed prosecutors and police when it ruled to require state experts who perform scientific analysis to also appear and testify in court about their work. In other words, the Court rejected the notion that a surrogate could show up for trial and testify about work done in their lab. But a kindergartener could have figured that one out. Persons accused of a crime have the right to cross-exam their accusers. That includes the person who performs a scientific test that incriminates them.

The case was Bullcoming v. New Mexico, No. 09-10876. It arose from the arrest of a New Mexico man on suspicion of DWI. At his trial, prosecutors presented a crime lab report showing Bullcoming's blood-alcohol levels were elevated. But prosecutors did not call the analyst who had prepared and signed the report, telling the court he was on unpaid leave for unspecified reasons. Instead, they presented a colleague who had neither observed nor reviewed the analysis.

The Supremes said that was unacceptable. Duh? Their ruling followed from Melendez-Diaz v. Massachusetts and Crawford v. Washington, which breathed new life into a person's right to confront the witnesses against them. Even Antonin Scalia and Clarence Thomas joined the majority opinion on this one. Taking a swing at the dissent's argument that such a requirement created an unreasonable burden upon the state, Scalia said: “The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”

In any case, another small victory for the defense and the Bill of Rights. But even a kindergartener could have figured this one out.

Anticipating Client Needs Reaps Loyalty

2011-06-26T15:02:00.003-05:00

I continuously encourage my staff to anticipate client needs whenever possible. Anticipating needs (and meeting needs before the client expresses them) sends the message we care about them as individuals. When clients know we care they become fiercely loyal to our firm.

Anticipating needs is achieved by simply paying attention and knowing the people we're serving. It's achieved by training each person in the firm to recognize the need for personalized service. Hiring support staff and other criminal defense lawyers based on a few key client-friendly traits such as warmth, empathy, teamwork, and optimism.

We work to align our systems to center on what clients really want from us. We endeavor to never treat anyone the same. Our great service requires custom fitting every day as we work with the special people who've trusted their future with us.

So, if you want to glue clients to your firm, learn to anticipate what they need and provide it before they ask. Thanks, Micah Solomon, for the many insightful tips into developing client loyalty.

The Death of the Bill of Rights

2011-06-21T09:46:00.004-05:00

I'm no libertarian. (at least I don't think I am) But I'm appalled as the Bill of Rights continues to take a beating. I talked about the change in the "no-blow paradigm" months ago as it relates to DWI investigations in Bryan/College Station. I like Eric Peters' take on this tragic sequence of events. (h/t to my friend Robert Guest)

Putting Up My Legal Skills for Awhile

2011-06-20T09:32:00.006-05:00

One of the easiest ways to alienate a client is to behave like a lawyer all the time. Sometimes criminal defense lawyers simply need to act like regular people to help their clients through difficult times. This is especially true when resolving client-service issues.

When clients point out "service lapses" by their lawyers, we must know how to accept responsibility and apologize. Most of the time the client doesn't need an "analysis of the facts." They don't need us to "allocate responsibility." Rather, they want our empathy. They need us to see their side of the situation. And most importantly, they require us to "man-up."

Regularly taking the client's side is another way to develop long-term client loyalty. Heck, it is just the right thing to do. Make this a habit and clients will forgive our small foibles. Make this a habit and clients will become immune to competitive entreaties from the firm across the street.

Another Quiet Defense Victory

2011-06-14T09:08:00.006-05:00

Most victories in criminal defense work are very quiet. Nothing in the newspaper or on the radio. Many are worked out by agreements with prosecutors and plead-out before a judge in the, proverbial, dead-of-night. No one hears about them but the office staff. And the only recognition for a job well done is the thanks of a loving mother and the gratitude of a relieved client. That's enough . . . it needs to be enough.

We concluded a very important case last week in which my client was indicted for sexual assault of a child. The potential long-term damage to my client involved sex offender registration, conviction, a destroyed career, and limitless unintended consequences. He was a teenaged boy who meet a teenaged girl on the Internet. They got together one day and had sex. My client confessed. The problem was he was 19 years old and the girl was 15. In Texas, that is a felony offense.

The sexual assault indictment was ultimately dismissed by the prosecutor and I owe him thanks for that concession. In exchange, my client accepted a plea agreement for a misdemeanor offense of assault. No sex offender registration. No destroyed career. Two years probation and big fine was the worst of it.

It took four years to resolve, but in the end my client was pleased. His parents relieved. It was a quiet victory plead-out in the dead-of-night. No newspaper article, no radio coverage. Just a happy client and family. It was enough for this week.

It's About the First and Last Thing We Do

2011-06-13T11:00:00.007-05:00

According to Micah Solomon, psychological studies show our clients remember the first and last thing we say during a meeting or phone call more vividly than anything else. It's the principles of primacy and recency at work during a customer service encounter. Another way of looking at it is whether we, or our support staff, sound interrupted when the client calls. That's the first thing they hear. Wouldn't it sound better if our voices communicated genuine pleasure to hear from them? At the end of a case, what is the last thing the client hears from us? A form letter advising our legal representation agreement is terminated, or genuine thanks for trusting us to provide them such a valuable service?

Criminal defenses attorneys should assure the first and last elements of our client interactions are well-engineered, since they will stick in the client's memory the longest. What our clients remember first, and last, will go far in developing the client loyalty we can be proud of.

Fast Service is King, But Delay Wins Cases

2011-06-09T10:39:00.005-05:00

Fast service impresses clients and fosters client loyalty. Even though clients don't know what's involved in completing our work as criminal defense lawyers, modern clients expect speedier service than previous generations. However, the key tenets of criminal defense work are deny, delay, and defend. So how does the effective defense attorney square the need for speedy service with the necessity of delay in successfully defending a criminal case?

Most importantly is adjusting client expectations at the front end of the representation. The criminal client should be informed how the process of delay works in their favor. How police witnesses lose memory, how prosecutors lose interest, how mitigating facts can be developed over time to favor the client.

Adjusting client expectations, notwithstanding, is never a justification for tardiness in other areas of the representation. For instance, returning phone calls and keeping clients informed of case developments. This is where fast service is king and where improved client loyalty is developed.

In other words, take good care of your clients by responding quickly to their questions. But let them know, up front, the best results in a criminal case often come after long periods of delay.

First Step to Client Loyalty

2011-06-07T13:25:00.008-05:00

This month's Texas Bar Journal had a great article, by Micah Solomon, on steps toward developing better client loyalty. Much of what Micah concluded were ideas most good business people develop on their own as they gain experience in the business world. This includes criminal defense lawyers, too. In any case, developing better client loyalty means, in the end, the criminal defense client is happier. That's always the goal.

Step One is to remember and acknowledge each client in a way that is personal to them. In other words, treat each client as unique. Micah believes, and I agree, that criminal defense law firms thrive once they dedicate themselves to achieving the effectiveness of a beloved bartender or hairstylist. Remembering something special about each client leads fosters this important relationship.

That's step one. With six more to go, please check in for later thoughts.

PrePaid Legal Services

2011-05-31T13:13:00.000-05:00

Prepaid legal service is a generic term for "legal insurance" and there are several companies that offer plans. However they are variations of the company that started the concept named Pre-Paid Legal Services, Inc. located in Ada, OK. Essentially, it's insurance and your "benefit" is legal service. You pay a monthly membership fee and you purportedly have unlimited access to an attorney for your legal questions, traffic ticket representation, will preparation, and other benefits. Here's the problem with prepaid legal services.

I got a call last week from a prepaid legal service provider looking for a criminal lawyer in Bryan/College Station to represent one of their insureds. The insured was a parent whose Texas A&M Aggie got into trouble with local police for a DWI breath test case. The provider asked whether I'd be interested in taking the case for their stated maximum benefit of $1,500.00. I asked whether they offered an additional benefit if I tried the case. Nope.

I told this guy his legal insurance sucked. The only lawyers in town who might take a DWI breath test case for $1,500.00 would be either starving or unqualified. I hadn't seen any starving lawyers at the courthouse lately, so I figured the poor lady who paid the insurance premiums wasn't getting the quality benefit she assumed (I suppose) she would receive.

The moral? Beware of prepaid legal services. You might not be getting what you paid for.

The Criminal Lawyer's Flat Fee

2011-05-23T15:31:00.019-05:00

Folks often wonder why I charge so much for my legal services. Why aren't legal fees more affordable, they wonder. You're killing me, they say. The truth is, when compared to fees charged by lawyers in civil firms with comparable experience, my fees are reasonably priced. What's more, my fees are predictable because I charge by the case. That is, I charge a flat, or fixed, fee. The flat fee is probably the best way for criminal defense lawyers to make quality legal fees affordable to the paying public. And the flat fee is simply that . . . a fixed fee as compared to an hourly fee, which is more unpredictable. So how does the flat fee make legal services more affordable to the client? Well, let's take a look at how an hourly fee might stack up against, let's say, a $4,500.00 flat fee for services in a typical DWI refusal case.

On a simple DWI an attorney will, at least, defend the administrative license revocation (ALR) hearing and appear at several court dates – let’s assume three court appearances, which in my experience is on the low end. Assume with travel time and waiting time in court, each court appearance is a half hour. For the ALR, first we must request the hearing, then request the discovery, then review the discovery, then go to a hearing. Let’s just assume it’s 2.0 hours for all of that. Initial interview? Let’s assume an hour. Watching the video with the client will be another hour for purposes of our hypothetical. In all, we have about 4 hours invested.

But what if there were a possible suppression issue needing a couple hours of research? Add two hours. That gets us to six. And if we actually litigate the motion to suppress, add another two hours. That gets us to eight. What if we must make five total court appearances? Now we are at 10 hours invested. Believe me, these time estimates are on the low end of reasonable. If any experienced criminal lawyer actually counted their hours in a case they'd be surprised how quickly the time adds up.

Let's build on the hypothetical. Let’s assume a board certified criminal lawyer with 15 or so years’ experience. She wants $350 per hour. Let’s assume also the more reasonable scenario of the time counted above, plus the modest preparation time of one hour out-of-court per one hour in-court and about four hours invested into the suppression issue. At $350 dollars per hour, that makes about 15 hours or so, (if my math is correct) or a total bill for fees of $5,250.00. This does not include the lawyer's out-of-pocket costs for online research, etc., which are typically absorbed by the lawyer and not charged out to the client.

So, when comparing the hypothetical hourly fee against the $4,500.00 flat fee, we see the flat fee is a bargain. Beyond this, in many cases the criminal lawyer will include any trial fee within their flat fee, which makes the flat fee all the more economical for clients.

Consequently, when folks ask me why I'm killing them with fees, I trust they see their advantage when paying a predictable, reasonable, and yes, affordable attorney fee to obtain the best defense against their criminal charges.

I Figure It's Time for Me To Start Playing Ball

2011-05-23T15:10:00.003-05:00

In the 1986 sports movie classic, Hoosiers, the town's star player, Jimmy Chitwood, is sitting out the basketball season on the sidelines. During a town meeting to vote on the fate of new coach, Norman Dale, Jimmy walks into the meeting and announces he has something to say. After Jimmy is given the floor he proclaims that "I don't know if it'll make any change, but I figured it's time for me to start playing ball." It's been almost a year now since my last blog post. I don't know if it'll change anything, but I figure it's time for me to start playing ball again, too. I'm working on my next post . . . a little something about legal fees. I hope you'll visit again.

New iPad Makes My Criminal Defense Practice Sing

2010-06-14T16:13:00.009-05:00

Apple's new iPad is a welcomed addition to my arsenal of courtroom technology. Tons lighter that my laptop. It's brilliant and loaded with both business and legal applications. It should make my courtroom experience all the better.

The iPad builds upon the success of the iPhone by incorporating a simple gesture-based touch interface and thin, sleek profile. The display is bright and compelling and is about four (4) times the size of the iPhone's screen. For performing legal research on the go, responding to emails, checking my calendar, and just browsing the web while I'm waiting on the judge . . . the iPad really can't be beat.

Much of my criminal law research is done on an iPhone application called "Fastcase." Its interface is intuitive and fast. On my iPhone the text is a bit small for my aging eyesight, so the large and bright display on the iPad is like heaven. With a Wi-Fi/3g equipped iPad I'm able to access the research database predictably and reliably.

Apple's presentation software, "Keynote", is available in application form for the iPad. Great for preparing jury trial presentations. Moreover, it's a fraction of the price (only about $10) of the full blown software package for my Macbook Pro. With Keynote on the iPad, I can import Microsoft PowerPoint files and Keynote presentations from other computers. Furthermore, using an optional iPad Dock Connector to VGA Adapter, I can connect the iPad to a TV or projector and show my Keynote presentations to the jury on a big screen.

I can't wait to get into action with my new courtroom techo-weapon. I think every criminal trial lawyer ought to consider the iPad. I'm thinking it'll make my life much easier and effective in the courtroom.

Speaking Now Required to Remain Silent

2010-06-03T11:45:00.005-05:00

If you have the Constitutional right to remain silent and remain silent in the face of police interrogation, have you preserved your right or waived it? Well, in the recent U.S. Supreme Court (SCOTUS) of Berghuis v. Thompkins, the Court ruled 5-4 that a suspect must speak in order to assert the right to remain silent.

Van Chester Thompkins was given his Miranda warnings and remained silent for almost 3 hours. During that time, the police continued the interrogation. Thompkins eventually made an incriminating statement. A lower federal court found Thompkins had successfully asserted his right to remain silent by actually remaining silent. Further, the lower court held that officers should have ended the questioning. The Supreme Court overturned the lower court.

The majority of the Supreme Court said if police give Miranda warnings to a suspect, they may begin questioning and continue questioning the suspect unless the person clearly and unambiguously announces he desires to remain silent or wants a lawyer. Police are not required to expressly ask a suspect to waive their rights. If the suspect shows incredible stamina (like Thompkins) and manages to remain silent through hours of intense interrogation, he "waives" his right to silence if he eventually caves in to pressure. Consequently, his incriminating statements can be used against him.

The Ballistics Expert in Criminal Defense

2010-05-28T15:38:00.003-05:00

Ballistics has been on my mind these past few weeks. I'm defending a criminal murder case in Brazos County which relies heavily upon the prosecutor's ability to link my client to the alleged murder weapon with the expert testimony of a firearms examiner, or ballistics expert.

The criminal defense attorney defending such prosecutions needs a fundamental understanding of the firearms examiner's role in presenting evidence concerning the identification of firearms and ammunition. This is especially true in cases where such identifications are the lynchpin of the prosecution or defense case. Understanding how bullets and cartridge cases can be identified as having come from a specific weapon depends on some knowledge of how firearms are manufactured, particularly pistols and rifle barrels.

First, a hole is bored through a cylindrical bar of steel of the desired diameter. That diameter determines the caliber of the weapon. Next, after the hole is bored, twisting grooves (or rifling) are created inside the barrel. This process causes a fired bullet to spin as it leaves the barrel, giving it more rotational velocity and, consequently, more stability with better accuracy. Regardless of the manufacturing process, each barrel acquires minute marks, called striations (or striae) through minor accidental occurrences in the rifling process. These striations are supposedly not the same for any two barrels and are the basis for the "individuality" of each rifle barrel. Any bullet fired through the barrel will be effected by the unique rifling of that particular weapon.

If a bullet (or bullet fragment) is obtained during the police investigation, often the police want to determine whether a particular weapon fired it. Assuming the police also possess the suspected weapon, the process of identification is straight forward. First, the examiner fires a series of test bullets from the suspected weapon and uses them to compare with the "unknown" bullet obtained during the investigation. The examiner uses a binocular comparison microscope, which is an instrument consisting of two separate microscopes mounted side-by-side. The unknown bullet is placed under one microscope and the test bullet under the other. The examiner then scrutinizes both bullets and attempts to locate similar striations that "match" both the test and unknown bullets. In theory, a careful study of all the detail on both bullets permits the examiner to conclude whether both bullets were, or were not, fired through the same barrel.

In a later post, we'll discuss the identification of a cartridge case and whether is was fired from a particular weapon. Although different from bullet identification, the same principles of probability apply.

Computer Forensic Experts

2010-05-08T13:00:00.005-05:00

The spread of crime using computers was inevitable, even in the sleepy towns of Bryan|College Station, Texas. The ease with which people can access literally billion of documents and images over the internet has made computer "crimes" a hot area in law enforcement in recent years. Our question is how to defend against such charges by the government? One answer is using computer forensics, that is, utilizing a defense expert to preserve, analyze, and produce data from computer media storage.

When conducting an analysis in computer forensics, the “expert” uses tools (i.e., software) to examine and extract information pertaining to the alleged crime. However, a problem area is whether one can be considered an expert solely based on their ability to use a tool or software package to analyze the computer data, without the ability to clearly define how the tool works or reviewing the source code. The majority of the tools and software used by computer forensics experts is proprietary and copyrighted. This eliminates the ability to access the source code. Currently, this inability of the expert to test the code and understand how it works has not hindered the admissibility of an expert’s testimony. In Texas, criminal courts have found that an expert does not need to know the code of the software package nor the background processes. (see Williford v. Texas 127 S.W.3d 309) Questions arise concerning whether an expert who cannot attest to area three of Daubert qualifies as an expert.

The third criteria of Daubert states specific factors such as peer review, error rates, and acceptability in the relevant scientific community are important elements to consider when determining the reliability of a scientific test, including proprietary software programs used to analyze a computer hard drive. However, it's difficult to meet the third criteria due to a lack of error rates for most of the software used by the forensic experts. Additionally, there are no standards in the field or peer reviews of methods. The courts have found that an inanimate object (e.g. a software package) cannot be considered an expert. This does not mean the object (or results from that object) cannot be used for scientific testimony. The individual using the software package simply needs to testify regarding the procedures used.

A possible argument to be made in criminal court regarding the third criteria of Daubert is that the computer forensic community has accepted certain industry standard tools such as EnCase, a common program used by experts to analyze computers. The question, then, becomes whether it's justified to say that the "relevant scientific community" has accepted certain software packages? Currently, experts must qualify their educational background, which includes courses taken by corporate or federal agencies on how to operate software packages (like EnCase).

The bottom line is that computer forensic experts can be invaluable to the computer crime defense attorney. For court-appointed cases, the defense lawyer can use ex parte motions for expert assistance to obtain funds to hire such experts.

AKE Motion for Expert Assistance

2010-04-21T11:30:00.004-05:00

The Ake v. Oklahoma motion for expert assistance is one of the most powerful tools at the criminal defense lawyer's disposal. Typically utilized by criminal lawyers appointed by the court, the motion is used to compel trial judges to approve funding to hire anyone from a private investigator to forensic computer expert to polygraph examiner. The beauty of this approach is two-fold. First, the defense lawyer is authorized to approach the judge ex parte, meaning without the knowledge of the state prosecutors. This allows the lawyer to reveal his defensive theories to justify the expense without the prosecutor learning about it. Second, the hired expert now becomes part of the "defense team" and is protected by the attorney's work-product privilege. This means the expert is now prohibited from revealing anything about their investigation to anyone without the client's express authorization.

There are important hoops the defense lawyer must navigate to compel judges to approve funding. The lawyer must first show the defendant is indigent and cannot afford to hire an expert on their own. The lawyer must also show the need for the expert involves some "significant factor" at the guilt/innocence or punishment phase of trial. This usually means the expert will be needed to develop certain types of evidence used in rebuttal or used to challenge the prosecutor's case. At times, the defense lawyer might need to demonstrate the legal admissibility of the evidence they are attempting to develop through the expert.

Next, the lawyer must present the expert's qualifications. This takes the form of a resume or vita. The judge will also need an estimate of the fees and expenses anticipated. I typically use the letter sent to me by the expert setting forth the proposed work, including trial testimony.

Lastly, the lawyer must state that neither he, nor his client, is sufficiently knowledgeable in the area of expertise for which they need assistance. I suppose if a lawyer was trained in forensic child psychology, the lawyer could serve as his own expert in a child abuse case. Sounds pretty silly, but still one of the necessary hoops we need to jump through.

Brazos County judges are usually very cooperative in granting funding when I apply. They might quibble over the cost at times, and sometimes I'll need to convince my expert to work for a bit less, but usually I get exactly what I ask for. Then, with the funding in hand for my expert of choice, I feel more confident in providing my clients with an effective defense.

Dropping Charges - The Non-Prosecution Affidavit

2010-03-24T15:10:00.003-06:00

Clients often ask whether the prosecutor will dismiss their criminal case if the complainant "drops the charges?" During this scenario the complaining witness may contact the prosecutor and ask them to stop the prosecution of their case. In Brazos County, the prosecutors require the complainant sign a "non-prosecution affidavit" in support of this request.

Note the complainant has no actual authority to compel the State to dismiss a case. Rather, the prosecutor has absolute authority to continue, or not, the prosecution of any criminal case in Bryan|College Station or any other area of Texas. However, in the right situation a non-prosecution affidavit from the alleged victim can go far in giving the accused person negotiation leverage. That is, many times the prosecutor does agree to dismiss the case, or sometimes reduce charges, based on the wishes of the victim. But in other cases, like those involving serious violence, I've seen prosecutors give a non-prosecution affidavit the "circular file" treatment. That is, no value whatsoever.

So, when speaking with your criminal defense attorney about the issues in your case, don't forget to let them know if the alleged victim might be willing to sign a non-prosecution affidavit. Be very careful, though. DO NOT attempt to persuade, convince, or coerce an alleged victim to "drop charges." There are criminal laws prohibiting retaliation against a person who is a victim or one who reports the occurrence of a crime. You could be prosecuted for a serious felony offense, like retaliation, if you said the wrong things or inadvertently frightened the victim. LET YOUR LAWYER handle this matter after consulting with you.

Failure To Communicate Plea Offers

2010-03-15T11:45:00.001-06:00

The criminal defense lawyer's professional responsibility to each client is to timely communicate plea bargain offers made by the prosecutor. When defense attorneys fail to communicate plea offers to clients they commit ineffective assistance of counsel, which can often lead to reversal in a criminal case.

To establish an ineffective assistance of counsel claim the client must, first, prove their lawyer's representation fell below an objective standard of reasonableness. Second, the client must prove the deficient performance resulted in prejudice.

Failure of defense counsel to inform a client of plea offers made by the prosecution is an omission that falls below a standard of professional reasonableness. Furthermore, courts have been unanimous in finding that defense counsel's failure to inform a client of a plea offer constitutes a violation of the person's Sixth Amendment constitutional right to effective assistance of counsel.

But the failure to advise the client of the offer is not quite enough to obtain a reversal. The client must also show they were harmed by the lawyer's unprofessional conduct. In other words, the client must further prove they would have accepted the plea offer had it been communicated. Luckily, the courts have not required defendants prove the trial court would have accepted the plea bargain to establish harm. Only that the defendant missed the opportunity of accepting such a bargain and presenting it to the trial court for consideration.

If you find out your lawyer failed to communicate a plea offer to you, contact new defense counsel immediately. Relief might be available and you need to discuss the matter with an informed and experienced criminal defense lawyer as soon as possible.

Patience's a Virtue in Brazos County

2010-03-02T15:43:00.006-06:00

The smile on my client's face made the long wait worth it. He'd been arrested in November 2008 and charged with 8 counts of aggravated robbery, one count of burglary, and assorted controlled substance charges. During each visit with my client I encouraged him to remain patient. We had investigated the facts of the serious robbery charges and determined there was little evidence to prove guilt, if any.

The nature of this case dovetailed well with my earlier post regarding the corroboration of accomplice testimony. Here my client was being held on the testimony of an accomplice. (which can be probable cause enough to indict and detain) However, with the help of my investigator we demonstrated the State had no corroboration. After we brought this to their attention, we went before the judge requesting a bond reduction. Although we failed to obtain the personal bond we sought, the judge did lower the bonds significantly. However, we continued to wait and wait for the prosecutor to perform their follow-up investigation and come to the same conclusion we had, no corroboration.

That was 9 months ago. Finally, our patience paid off when the State agreed they'd dismiss 8 counts of aggravated robbery and one county of burglary against my client. We resolved the remainder of the charges with a plea bargain for time-served, and my client couldn't be happier. He's going home very soon.

So the moral of the story is be prepared with a large dose of patience. A good criminal defense lawyer can help you understand the ins and outs of your particular situation. But most of the time it's the prosecutor that must come around and see the handwriting on the wall.

Probation and the Motion to Revoke

2010-02-15T10:28:00.008-06:00

Probation can be a welcomed second chance for good folks running afoul of the law. A person on probation can expect to attend monthly meetings with a supervision probation officer, attend education classes for offenses involving drugs and alcohol, perform community service, and pay fines, fees, and court costs. Depending upon the trouble the person got into, there may be other conditions of probation, even county jail time, that must be complied with before they are successfully discharged from probation.

Problems arise when a probationer begins to violate the terms of their probation. Something as simple as a dirty urine screen can land one back in court to endure the wrath of prosecutor and judge. In the worse cases, motions to revoke probation are filed by the prosecutor which result in warrants issued for your arrest. In Texas, if a motion to revoke is filed on a misdemeanor offense the probationer is entitled to a bond. However, in a felony case the probationer can be held without bond, in the county jail, until the resolution of their case.

An important thing to remember is that everything you say to your probation officer can ultimately be used against you later. If you admit doing drugs while on probation, for instance, the probation officer can come to court later and testify about what you said. Your statement alone can be used by the judge to find a probation violation and sentence to jail, or prison. Like I tell all my clients going onto probation, your probation officer can be your friend, and slit your proverbial throat, all at the same time.

Unfortunately, probationers must be guarded in what they say to their probation officer. Especially folks who tempt fate by violating their conditions hoping the officer does not find out. If you violate probation and are confronted by your officer, remember you have the absolute right to remain silent. In that case, the supervising officer might make your life miserable, but at least you aren't supplying them information to use against you. The best approach is to contact a qualified Bryan|College Station criminal defense lawyer before saying anything incriminating to the officer. At a minimum, the criminal lawyer can talk with the officer and prosecutor without the risk of incriminating you.

Possession of Marijuana, Drugs, and Other Illicit Contraband.

2010-02-11T10:42:00.006-06:00

Bryan|College Station criminal defense lawyers regularly deal with possession issues in the field of criminal law. The most common charges brought against folks in Brazos County involve marijuana, controlled substances (including dangerous drugs), alcohol, and weapon charges. Certainly possession of illicit pornography and stolen property could be included in this list of potential offenses. The question I most often answer for clients is the difference between possession and ownership as it relates to charges brought against them.

Texas criminal law prohibits more than ownership of illegal materials. In fact, possession is the key issue. Or should I say "knowing" possession is the most common hook upon which the defense lawyer hangs their hat. Let's look first at how possession is defined.

Possession is typically defined as having "actual care, custody, control, or management" of some illicit contraband. Notice that "ownership" is not included in this definition. In other words, someone need not own something in order to possess it. A simple example helps explain the point. Suppose several college buddies (all under 21 years of age) go out for a night on the town. One person brings along a twelve pack of Bud Light which they purchased earlier in the evening. (a separate offense, by the way) Each person has a beer and finishes by throwing their empty can on to the backseat floorboard. A traffic stop then occurs where the police observe the unopened cans of beer in the front seat. Although the one friend owned the beer, each person in the car could potentially be charged with possessing the alcoholic beverage.

Another, often overlooked, aspect of the possession case is whether the charged person "knew" they were in possession. If the police cannot prove the defendant knowingly possessed contraband they are unable to obtain a conviction. Supposed the same group of friends went out together, but this time without the beer. Instead, the owner of the car had baggies of marijuana stashed under the seats, in the glove box, and in the trunk . . . all without the knowledge of his friends. The same traffic stop occurs and the marijuana is located by the police. Now, although the marijuana was within easy reach of each person in the car (and arguably in their possession) only the driver actually knew it was there. Commonly, each person would be arrested and charged, but unless the prosecutor can prove knowledge the accused friends should escape conviction. (with the help of a good criminal defense attorney, of course).

Possession charges are one of the most common criminal offenses charged against persons in Brazos County. However, the experienced defense lawyer can help the accused person navigate these dangerous waters. Help is available, so don't go it alone.

Texas Drug Free Zones

2010-02-01T13:51:00.002-06:00

Possession of controlled substances (including marijuana) within "drug-free" zones in Brazos County (and all areas of Texas, for that matter) result in more sever penalties and punishments. Depending upon the alleged offense, the range of potential punishment can rise to the next higher level, or minimum possible punishments can be increased. Even more problematic is the provision that punishments increased under the drug-free zone provision MUST run consecutively to other sentences imposed for other crimes. In other words, sentences under this scenario are stacked one upon another.

For instance, a person gets into a knife fight within 1000 feet of premises of a school, public youth center, playground, or on a school bus. Further, the person has several grams of a controlled substance in their possession and it's found upon their arrest within the zone. If convicted of aggravated assault and convicted of possessing the controlled substance in a drug-free zone, the punishment for the drug-free zone offense must be stacked on top of the punishment for the aggravated assault. Very onerous, indeed.

Assuming facts exist to convict, the accused is in a very tight spot. The criminal defense lawyer would be successful if able to persuade the prosecutor to waive the drug-free zone allegation, thereby removing the automatic stacking provision. In any case, the prosecutor's in the driver's seat and defense lawyers must work hard to help client's make the best of a poor situation.

Corroboration Required: Accomplices, Jailhouse Snitches, and Drug Informants

2010-01-21T14:42:00.007-06:00

Thank goodness the Texas Legislature had the good sense to require corroboration of certain prosecution witnesses before a jury could legally convict someone for a crime. For years the accomplice witness rule prevented the government from convicting someone based solely upon the testimony of an accomplice. That is, someone who was involved in the crime, got caught, and then turned State's evidence to save their own hide.

Even the village idiot knew such testimony was inherently unreliable and could routinely lead to the imprisonment of innocent people. Consequently, the accomplice witness rule demanded a defendant not be convicted of an offense on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the crime. Moreover, corroboration was not sufficient if it merely showed the commission of the offense. In other words, even if a jury believed everything an accomplice witness testified about, the law prohibited a conviction unless there was other evidence connecting the accused to the crime.

In recent years, two new laws were enacted requiring corroboration of other types of prosecution witnesses. First was the jailhouse snitch rule and then the drug informant rule. Both rules were similar to the accomplice witness rule in that corroboration was required before a jury could convict someone based on the testimony of these witnesses. Again, the inherently unreliable nature of this testimony raised the specter of convicting innocent persons.

Interestingly, Texas case law has held one type of unreliable witness cannot be used to corroborate another. For example, a jailhouse snitch cannot be used to corroborate the testimony of an accomplice, and vice-versa. The same holds true for drug informant testimony.

The challenge for the criminal defense attorney is getting the jury to commit to corroboration. In other words, if a jury believed the accomplice was telling the truth, they'd be reluctant to acquit someone based on their perceived moral responsibility to convict the guilty. Sometimes a crime is so awful, or the jury so afraid, that they invent corroboration in order to convict. The good news is that appeal courts use the corroboration requirement when evaluating evidence sufficiency questions. Stated another way, if there truly is no corroboration, the defendant has an excellent chance on appeal for a reversal.

More On Polygraphs

2010-01-12T17:22:00.014-06:00

Polygraphs continue to serve as invaluable tools for Bryan|College Station criminal defense lawyers when clients are accused of a crime in Brazos County. Recently, while talking with my local polygrapher, Stuart Ervin, owner of Central Texas Polygraph, Bryan, TX who reminded me how often a client's skin is saved by a clean polygraph chart. Stuart noted how the polygraph is used to demonstrate the client's truthful story to a grand jury. Stuart also noted while the number of people who fail the polygraph is high, clients often share valuable information with him they hadn't disclosed to me, their defense lawyer. This confidential information is important in planning an effective defense, nonetheless.

Stuart noted the risk of taking a PRIVATE polygraph is zero. (polygraphs given by the police, however, ARE NOT confidential and can be used against the client) The entire polygraph record is considered attorney/client work product and is always absolutely confidential when the polygrapher is hired as a defense expert. Furthermore, professional polygraphers and their staff remain obligated to keep all client interviews completely secret.

Finally, if the results of a polygraph are positive, then the price for the exam (usually around $500.00) is a small one. We now possess a report widely utilized by grand juries demonstrating the truthfulness of the client. If the polygraph results are negative, the exam remains confidential . . . as if the exam never took place.

So don't be afraid of a private polygraph administered by your lawyer's hired expert. It just might save your skin, too.

Changing the No-Blow Paradigm

2010-01-07T15:30:00.000-06:00

For years the standard operating procedure for DWI suspects in Brazos County was no-blow. That is, once a person was arrested for driving while intoxicated, the best defense was a good offense and suspects were encouraged by College Station criminal defense lawyers to refuse any breath or blood test requested by the arresting officer. However, times have changed over the past several years with the gathering momentum of blood draw warrants.

Blood draws pursuant to a search warrant occur shortly after a person arrested for DWI is taken to the local police department and refuses to submit to a chemical test. Blood draw search warrant affidavits and search warrant forms are now readily available to law enforcement in Bryan|College Station. Local judges are on call 24/7 to review affidavits and grant warrant requests when the facts support the officer's request. The DWI suspects are then transported to a local hospital, their blood is drawn and sent to DPS for analysis.

What's the problem for citizens from whom blood was drawn after their DWI arrest? Simply, a blood test is much more difficult to defend than a breath test. Breath samples analyzed by the Intoxilyzer 5000 can be attacked in many credible ways. We've discussed the problems with the Intoxilyzer on many occasions here at the Defense Perspective. However, blood testing does not suffer from the same, wide array of problems. There are ways to attack a blood test, but not nearly as effectively.

Consequently, the no-blow paradigm may be changing around these parts. The best way to avoid the problem is to avoid drinking-and-driving. However, in a large college town like Bryan|College Station, students rarely take this issue into consideration before a night out on the town. So, if you drink and drive in Brazos County, it may be time to start saying yes when asked to submit to a breath test. But better you never get asked.

Football Coach Acquitted

2009-09-18T13:35:00.006-05:00

I've stirred up some conversation with my Facebook friends concerning the recent acquittal of Jason Stinson of reckless homicide. If you recall, Coach Stinson was coaching high school football in the great state of Kentucky when, during summer sessions in 2008, a 15 year old player, Max Gilpin, collapsed and later died of heat stroke.

I was always troubled by this prosecution. Not because I'm a closet law breaker, but because the idea of charging a coach for running a difficult (maybe brutal) summer practice for a crime was inherently suspect. I say inherently suspect because I endured summer football sessions when I was in high school, running sprints, bear crawls, and the like without water in 90 degree heat. In fact, basketball practices were not not much easier although winters in central Pennsylvania kept us cozied-up inside the warm (and sometimes sweltering) gymnasium.

Those days were different, of course, and times have changed coaching practices as medical research revealed the need for proper hydration and protection from the elements for players. Nonetheless, I suspect the Kentucky high school that hired Stinson expected him to work the players hard, develop their mental and physical toughness, and play to win. Running wind sprints, gassers, and bear crawls was part of that process. I don't fault the coach for working his players hard . . . even past, what they believed, were their physical limits.

Max Gilpin's death was tragic, without question. But the use of governmental power to pursue his conviction was unreasonable. Sure, the Gilpin family probably supported the prosecution whole-heartedly. But a prosecutor is not bound by the will and wishes of an alleged victim (or their family). I guess if you want to protect your political future, you bow. But a prosecutor must also be cognizant of community standards and the chilling effect a prosecution might have on lawful activities. This is even more evident in the Stinson prosecution as the evidence clearly showed the Gilpin boy was taking amphetamines (Adderall) which affected his body's ability to regulate its own temperature.

Anyway, I was glad coach Stinson was acquitted, but equally saddened by the loss of Max Gilpin. I hope all prosecutors will step back from their cases and make sure they prosecute citizens for crimes and not terrible accidents. When we start seeking convictions to make a point, rather than to seek justice, we're heading down a slippery slope very quickly.

The Governor's Veto Pen

2009-09-17T11:32:00.003-05:00

During the recent 81st Texas Legislative Session, Governor Rick Perry stayed true to form by vetoing a number of criminal justice bills sent to him for signature which benefitted the defense bar. My guess is the powerful Texas prosecutor lobby, TCDAA, had a hand in many of these vetoes. Here's a short list of bills Perry struck down that aided those accused of crime:

1. HB 3148 would have expanded the authority of judges to waive or reduce sex offender registration for young offenders;

2. HB 3481 would have expanded the ability to obtain expunction to defendants charged with misdemeanors that were not presented within 180 days after arrest and defendants against whom the statute of limitations had expired;

3. SB 223 would have allowed a person who successfully completed a term of deferred adjudication probation to become eligible for a pardon, followed by potential expunction. (currently, those who complete deferred are not eligible for a pardon); and my personal favorite . . .

4. SB 488 would have created a crime for failure to allow three (3) feet of operating room between vehicles and "vulnerable road users," including bicycles, runners, highway workers, and stranded motorists.

So there you go. And by the way, one new crime of interest that became effective September 1, 2009 is the use of a wireless device (e.g., a cell phone) in a school crossing zone. That can get you up to a $200 fine. Funny the Texas Legislature did not pass a total ban on cell phone usage while driving. I bet it's because the law makers use THEIR cell phones all the time while driving.

The Loss Of Privilege Redux

2009-08-05T15:05:00.014-05:00

From reliable sources I learned that feathers ruffled from my recent post on the loss of privilege when a "professional" becomes aware of "child abuse" during their professional interaction with clients, patients, and the like. What really got someone upset was my vehement position on the defense lawyer's duty of loyalty toward their client, even concerning communications about possible child abuse. Here's my quote:

"Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence."

First of all, persons need to know when they call me to discuss legal problems what they tell me will remain confidential. That's lawyering 101. If a client wasn't assured communications were secret, the chilling effect upon attorney/client relationships would be devastating. No one would trust anyone, including their lawyer. Beyond this, the last thing a paying client wants to hear is what they just revealed to their lawyer will now be revealed to the police.

Rest assured if someone called me explaining they were in the midst of criminal activity, of any kind, my first instruction would be to terminate the criminal activity immediately. I'm a loving father and certainly encourage the protection of children from any abuse. In fact, the ethical rules to which I am professionally bound require me to reveal a confidential communication "[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act." But this ethical rule pertains to future criminal acts. What about past acts, particularly involving child abuse?

The feather ruffling issue was whether lawyers have a duty to report "past" acts of child abuse after a client consults with the lawyer for their professional services. In particular, what was my personal duty if someone called me on the telephone, told me they had sexually molested a minor child, and needed my professional legal services to protect them? My position last week was "hell no." However, after consultations with my reliable sources and another look at the Texas Disciplinary Rules of Professional Conduct I might need to qualify my "hell no."

The ethical rules also say: "A lawyer may [not must] reveal confidential information: 'when the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.'" So, is Section 261.101 of the Texas Family Code "other law" compelling me to reveal private information otherwise protected? My professional instinct says no. But I'm willing to leave the question open for a time and allow my reliable sources to help me figure this out.

It's a difficult question. It also directly effects my practice of criminal defense law and the practice of law for thousands of professional colleagues all over the state facing similar ethical dilemmas. We'll revisit this again soon.

A Pitcher's Life

2009-08-05T10:41:00.011-05:00

A pitcher spends much time waiting. Waiting on the warm-up call. Waiting on the call to the mound. Waiting on the catcher's sign. When the call comes he heads to the mound all eyes upon him. Each pitch a work-of-art. No works-in-progress. Each batter an adversary to vanquish. Each swing . . . each crack of the bat . . . an unknown. Either the hero or the bum. That's the life of a pitcher. I know one. I understand his life. It IS the thrill of victory. It IS the agony of defeat.

I love the pitcher's life. Not because I am one, but because my life's work is like one. Waiting on the call. Waiting to respond. All eyes upon me. Adversaries to vanquish. Works-of-art. Often the hero, sometimes the bum. Unknowns. The risk. Willing to fail but always working to win.

Yea. I understand the pitcher. He's an artist. He's a warrior. Tough minded. Yea. I know the pitcher's life. I respect him. He lays it out there for all to see. In victory and defeat I love the pitcher's life. The pitcher is me.

The Loss of Privilege

2009-07-29T10:58:00.008-05:00

A potential new client (PNC) contacted my office recently. He was concerned about his recent communication with a member of the clergy from whom he'd sought spiritual advice. Seeking absolution with the assistance of his spiritual adviser, the PNC confessed, in confidence, an inappropriate sexual contact with a minor child.

If you read Article V of the Texas Rules of Evidence (concerning privileges) you'll find several rules about the admissibility of statements made to certain persons. For instance, communications made in confidence to your lawyer generally cannot be disclosed. Statements made in confidence to your spouse generally cannot be disclosed. And statements made to a member of the clergy generally cannot be disclosed.

Unfortunately for my PNC, and others similarly situated, there are other rules and statutes trumping the evidentiary rules of privileges. For example, if a person obtains the services of a lawyer to enable or aid anyone to commit a crime, the government can compel the divulging of those communications. Furthermore, the spousal privilege does not apply in situations where the communications concern a crime against the other spouse or any minor child. Finally, a major exception to the rules of privilege relate to the "duty to report" provisions of Texas Family Code.

Section 261.101 of the Family Code compels the reporting of "child abuse" by just about everyone on the face of the planet. In particular, "professionals" are required to personally report the occurrence of child abuse. Following is a quote from the Code concerning this duty:

(b)In this subsection, "professional" means 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 or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

Note section "c" destroys the privileged communications occurring with your pastor, social worker, mental health professional, and yes, even your lawyer. Dangerous stuff. In fact, my PNC is not the first person contacting my office to discuss privileges and the duty to report. I've had this discussion with pastors at my church, accountants, and others facing similar dilemmas.

Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence. But others must be cautious to whom they reveal private information, especially when it involves alleged child abuse of any kind. If you have any questions, call and ask. I promise I will never tell!

Conservative Bias Alive and Well

2009-07-12T13:18:00.015-05:00

Conservative bias is alive and well. Being one myself (a conservative, that is) I support tax breaks for business, strict constructionism, outlawing abortion, prayer in schools, limited government, and yes, even the U.S.-Mexico border fence. I voted for George W., Sarah Palin, and I don't believe water-boarding is necessarily torture. However, my life as a defense lawyer has brought me into contact with the underside of our affluent, gluttonous society. Many on the underside are from other countries, other cultures, other ethnicities.

Cultural sensitivity was the theme of several posts of late. Not really a conservative tag-line, but a required mindset for those taking oaths to zealously defend the criminally accused. Following my post about the Mexican national whom we recently defended, I received the following anonymus comment:

What utter nonsense! How far do you think we should take this cultural sensitivity? Should we allow rural Nigerians to stone witches to death like they do in their home country? How about honor killings, that Muslims do when their women "dishonor" the family? Is that ok? How about polygamy? Any problems there? Should we allow Afghans to lock their women in the house and not allow them medical care or education? How about equal treatment under the law? That means that American 19 year olds don't get to boink 12 year old girls in this country, and neither does anyone else. I don't recall being a foreigner being a defense in the penal code. If the person is in the country legally, he took an oath to obey the laws, and if he isn't, then he needs his ass deported. Bottom line, if they come here, they need to obey our laws. No exceptions.

Following the short essay in which I used Billy Hayes as a preamble before discussing fair treatment of foreigners within the American criminal justice system, I got this comment after sharing facts about a Zimbabwean man I represented last year:

My attitude is short sighted? Why is that? So they were here on student visas, but she can't speak or understand English? Didn't that make it sort of hard for her to go to school? Or did they have Shona ESL for her? Hell, maybe abandoning their child wasn't really a crime, it was some sort of Zimbabwean cultural ritual? Maybe they were teaching the kid to find its way home by celestial navigation? Its always amazing to me how you libs that abhor the thought of America being a superpower or of being a world leader or of having the premier military in the world are always so anxious for us to be the super nanny state of the world and provide cradle to grave everything to everyone, regardless of whether they belong here or not or regardless of whether we can afford it or not. The only good thing about it is that American taxpayers are starting to get tired of their wallets being raped daily to pay for all this liberal crap. The easiest way to solve that problem would be to put the bunch on the nearest plane bound for Zimbabwe and get their visas revoked. End of our problem and it saves money too. And now you are going to whine about oh their rights might be violated. Wrong, having a student visa is not a right, its a privilege and it can be revoked at any time. Bottom line, if I break the law, I get arrested for it and my life is messed up bigtime. Foreigners that come over here legally and break it should be sent home as soon as possible. People here illegally need to do their 6 months federal time and then be criminally deported so they can get 20 years federal time if they get caught here again. I wonder if you have looked into those border areas where illegals caught are jailed for 6 months? Amazing how illegal border crossings in those areas have dramatically decreased. But I bet you would probably lose money representing these people if any of that happened, right? We have a duty to treat our own citizens fairly, and perhaps if we weren't shelling out to support the citizens of so many other countries, we might actually have the funds to take care of our own problems.

This is what we call law-and-order bias in our vernacular. Typically a conservative malady. However, I don't mean to suggest all conservatives suffer with this affliction. Quite a few lefties do, too. Nonetheless, a large part of my skill as Bryan|College Station defense lawyer is used to identify the bias and eliminate it with the all powerful peremptory strike or challenge for cause. I'm sad though, that so many closets are filled with these misconceptions. As a Bible thumping conservative, though, I'll take time to pray for their understanding.

Does Anyone Remember Billy Hayes?

2009-07-06T11:10:00.009-05:00

Who remembers Billy Hayes? Oh yea. He was the guy who got caught allegedly smuggling hashish out of Turkey in 1970. For you movie buffs, Billy Hayes' story was chronicled in the 1978 film, "Midnight Express."

A harrowing tale, to say the least. Billy is caught at the Istanbul airport with 5 pounds of hash strapped to his belly. He is tried in a strange legal system, betrayed by corrupt lawyers, and toyed with by capricious judges. He was originally sentenced to about four years in prison, but later his prison term was enhanced to 30. After 5 years imprisonment, Billy Hayes escaped to Greece from his Turkish hell hole.

Besides being a great movie (with a great soundtrack, btw), what's Billy Hayes have to do with the price of tea in China? Well, imagine a friend or loved one arrested in a foreign country. Would we demand the justice system ensured our friend understood the proceedings in their native language, that they were represented by lawyers and investigators who understood American background and culture, and that they were able to consult with representatives of the United States government as part of the process? I bet we would and I doubt if Billy Hayes was afforded this basic due process.

Now imagine you are from Mexico, from China, or from Zimbabwe. You come to the United States and get charged with a crime. Will you get the procedural due process we expect for our friends and family accused in a foreign country? Maybe not bro. In fact, although the American system of justice is designed to provide this basic fairness, not all accused foreigners are getting it. They are put to trial without interpreters and are represented by lawyers who don't realize (or don't care) about the importance of cultural and ethnic issues in the zealous defense of their clients.

So what do we do then? Well, part of our job as patriotic Americans is to ensure our system provides this basic procedural fairness to people from other countries, cultures, and ethnic backgrounds. When you are called to jury duty and a foreign national in on trial . . . ask the questions. Does this guy need a interpreter? Does the defense lawyer understand the cultural issues involved in the case? And don't assume the judge gets it - they often are just as clueless.

Top 20 iPhone Applications For Attorneys

2009-06-24T11:46:00.004-05:00

Some of these Top 20 iPhone Apps for Busy Attorneys have been supplanted by the latest iPhone software update (3.0). But they might be worth a look, nonetheless.

Criminal Harassment . . . Or Just Bad Manners?

2009-06-23T15:31:00.012-05:00

Ok. They charged my guy with harassment. For those interested souls, the Texas harassment statute is found in section 42.07 of the Texas Penal Code. If you don't care about the code, then just sit in and listen.

Harassment can be charged in multiple ways. In this case, the bad guys say my client initiated a written communication with a person and during the communication made an "obscene" comment. Specifically, they say my client sent the person a "hand-drawn" depiction of the female genitalia with the caption, "Can I lick you, Katie?"

With the hope of not getting charged with harassment myself, let me say this is family oriented blog. The quote above is from the public record and open to public scrutiny. Any 12 year old can go up to the county court house and pull this file.

Now, the harassment statute defines "obscene" in a most peculiar way. Obscene means a writing "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." (funny, my spellcheck doesn't understand half of these words) Nonetheless, patently offensive is not defined and the law provides no guidance as to its meaning.

Certainly, my grandmother might be shocked by such an image and suggestion. But my dad, and probably my wife, would care less. So who's sensibilities is this statute designed to protect? That's the problem. There are no guidelines for law enforcement. Furthermore, people of ordinary intelligence cannot discern what type of conduct is actually prohibited by the statute. Patently offensive is open to unlimited interpretations . . . what might be offensive to one person might not be offensive to another. This is called vague and over-broad for those interested legal eagles.

And what about our constitutional right to write (and draw, I suppose) what we want? That's called free speech in this country and is protected by the U.S. Constitution. Specifically, a case entitled Miller v. California set the standard for what is obscene in America. The Miller case incorporated a community standard of decency and consideration of a writing's literary, artistic, political, or scientific value . . . all qualifications the Texas harassment statute does not include. At least under Miller, a jury would have some needed guidance in determining the limits of one's writing and drawing prowess.

So, does the prosecutor have a point, or does my client simply have bad manners? I'd love to hear what you think? (Becky, this means you, too)

Cultural Bias Among Judges, Juries, & Prosecutors (I)

2009-06-17T09:46:00.008-05:00

How much cultural bias exists within the American justice system? Among judges?Among juries? And how about the prosecutors who decide what and when to charge persons of different ethic backgrounds with crimes? Let's look at judges today. We'll examine juries and prosecutors in later posts.

Despite our impression Lady Justice is blind, racial and ethic bias exists among judges. I'm sure few judges would admit to personal bias. However, everyone has it . . . even judges. Even though most judges pay close attention to the merits of a particular case, their different (cultural) life experiences lead to different interpretations of facts and circumstances they are called upon to adjudicate.

The solution? Possibly comprehensive diversity training for judges to address their "decision-maker" bias. Maybe the installation of procedures for identifying and sensitizing judges to their personal cultural prejudices. Perhaps judges should get out into their communities more often and develop sharper cultural sensitivity.

First, and foremost however, judges must realize they possess cultural bias. They must realize their personal prejudices effect how they interpret facts and circumstances . . . especially when the circumstances involve persons of different ethnicity from themselves. Lastly, they must learn how to fairly approach situations in court which encompass their prejudices and assumptions.

Culture Issues In Criminal Defense Work

2009-06-11T10:26:00.007-05:00

Recently we defended the interests of a Mexican national charged with the aggravated sexual assault of a child. The client was a 22 year old illegal alien who, at the age of 19, had impregnated a 12 year old girl also of Mexican descent. Once the girl gave birth, police authorities intervened, identified my client as the father, and began a prosecution for one of Texas' most serious sexual offenses.

As the investigation progressed, we quickly learned the client and alleged victim were in a romantic relationship. The client had approached the girl's parents and asked permission to see her. The parents were also Mexican nationals who had come to the United States many years ago looking for a better life. Their cultural background based in rural Mexico influenced their world-view. They were happy to allow their 12 year old daughter to see my 19 year old client.

From my perspective (as a white American born male) the age difference between the client and his girlfriend seem too unreasonable. However, I started to research the cultural norms in Mexico regarding dating and marriage. Surprisingly, I found that in rural Mexico young men of my client's age, and young girls hardly teenagers, regularly began to date and marry.

Clearly, my client's world-view, and that of the girl, were shaped by Mexican cultural influences. My client was not a sexual predator as the prosecutor tried to depict him. Rather, he was young man isolated by language barriers, economic barriers, and cultural barriers who fell for a young girl . . . not unlike relationships developing everyday in rural Mexico. We hired a cultural expert who helped the jury understand the motivation behind the client's behavior. Although we were unsuccessful in persuading the jury to acquit on the sexual assault charge, we were successful in convincing them that probation was the appropriate punishment result. Rather than the 15 years hard time the prosecutor asked for, the client received 10 years probation.

In future posts I'd like to explore the issues of cultural defenses in more detail. Cultural influences shape the way individuals perceive reality and thus guide their decisions. Judges and juries must be educated in this regard to assure the American justice system works fairly and equitably when persons from different cultures allegedly commit crimes in the United States.

Go Green Death

2009-06-03T10:28:00.008-05:00

Coach, the "politically correctness police" are not welcomed here either. So saith the former coach of the Scituate "Green Death" soccer team. In an email to players and parents, Coach Michael Kinahan explained he wanted to develop soccer players who "kick ass and take names on the field, off the field, and throughout their lives. I respect Coach Kinahan's approach and teach these principles to my children. It's also the only way to thrive in the competitive world of criminal defense law practice. Out of my high regard for the Coach, below is his email in its entirety. It is worth the read.

Congratulations on being selected for Team 7 (forest green shirts) of the Scituate Soccer Club! My name is Michael and I have been fortunate enough to be selected to coach what I know will be a wonderful group of young ladies. Chris Mac will also be coaching and I expect the ever popular Terry to return to the sidelines. Our first game will be Saturday April 4 at 10:00AM. There will be a half hour of skills followed by a 1 hour game, so total time will be 1.5 hours. All games will be played on the fields in the front of the High School. Each player will be required to wear shin guards and cleats are recommended but not required. A ball will be provided to each player at the first meeting, and each player should bring the ball to games and practices. There is no set practice time allotted for the U8 teams, but I will convene with the coaches to determine the best time and place. If there are cancellations due to rain, all notices will be posted via the Scituate Soccer Club website, no calls will be made (though I will try to send an email). Attached is the Schedule and Code of Conduct. After listening to the head of the referees drone on for about 30 minutes on the dangers of jewelry (time which I will never get back), no player will be allowed to play with pierced ears, hairclips, etc. We used to tape the earings, but that practice is no longer acceptable. Please let me know if your child has any health issues that I need to be aware of. My home phone is 781 XXX XXXX, my cell number is 781 XXX XXXX, and I check my email frequently. According to my wife, my emails get too wordy, so for those of you read too slowly, are easily offended, or are too busy, you can stop here. For the others……

OK, here’s the real deal: Team 7 will be called Green Death. We will only acknowledge “Team 7” for scheduling and disciplinary purposes. Green Death has had a long and colorful history, and I fully expect every player and parent to be on board with the team. This is not a team, but a family (some say cult), that you belong to forever. We play fair at all times, but we play tough and physical soccer. We have some returning players who know the deal; for the others, I only expect 110% at every game and practice. We do not cater to superstars, but prefer the gritty determination of journeymen who bring their lunch pail to work every week, chase every ball and dig in corners like a Michael Vick pit bull. Unless there is an issue concerning the health of my players or inside info on the opposition, you probably don’t need to talk to me. Coach MacDonald has been designated “good guy” this year. Some say soccer at this age is about fun and I completely agree. However, I believe winning is fun and losing is for losers. Ergo, we will strive for the “W” in each game. While we may not win every game (excuse me, I just got a little nauseated) I expect us to fight for every loose ball and play every shift as if it were the finals of the World Cup. While I spent a good Saturday morning listening to the legal liability BS, which included a 30 minute dissertation on how we need to baby the kids and especially the refs, I was disgusted. The kids will run, they will fall, get bumps, bruises and even bleed a little. Big deal, it’s good for them (but I do hope the other team is the one bleeding). If the refs can’t handle a little criticism, then they should turn in their whistle. The sooner they figure out how to make a decision and live with the consequences the better. My heckling of the refs is actually helping them develop as people. The political correctness police are not welcome on my sidelines. America’s youth is becoming fat, lazy and non-competitive because competition is viewed as “bad”. I argue that competition is good and is important to the evolution of our species and our survival in what has become an increasingly competitive global economy and dangerous world. Second place trophies are nothing to be proud of as they serve only as a reminder that you missed your goal; their only useful purpose is as an inspiration to do that next set of reps. Do you go to a job interview and not care about winning? Don’t animals eat what they kill (and yes, someone actually kills the meat we eat too – it isn’t grown in plastic wrap)? And speaking of meat, I expect that the ladies be put on a diet of fish, undercooked red meat and lots of veggies. No junk food. Protein shakes are encouraged, and while blood doping and HGH use is frowned upon, there is no testing policy. And at the risk of stating the obvious, blue slushies are for winners.

These are my views and not necessarily the views of the league (but they should be). I recognize that my school of thought may be an ideological shift from conventional norms. But it is imperative that we all fight the good fight, get involved now and resist the urge to become sweat-xedo-wearing yuppies who sit on the sidelines in their LL Bean chairs sipping mocha-latte-half-caf-chinos while discussing reality TV and home decorating with other feeble-minded folks. I want to hear cheering, I want to hear encouragement, I want to get the team pumped up at each and every game and know they are playing for something. Lastly, we are all cognizant of the soft bigotry that expects women and especially little girls, to be dainty and submissive; I wholeheartedly reject such drivel. My overarching goal is develop ladies who are confident and fearless, who will stand up for their beliefs and challenge the status quo. Girls who will kick ass and take names on the field, off the field and throughout their lives. I want these girls to be winners in the game of life. Who’s with me?

Go Green Death!

Much of "Forensic" Science Unreliable

2009-02-24T13:33:00.008-06:00

Juries are awed by forensic science in the courtroom. Fingerprint comparison, DNA, handwriting analysis, ballistics, blood-splatter, shoe print comparison, etc. Prosecutors across the county depend upon this evidence to obtain convictions and juries are conditioned by television shows, like CSI, to expect it. However, a recent report from the National Academy of Sciences says much of what passes for forensic "science" does not meet minimal scientific standards. Yet, when forensic scientists testify in court they are often shamefully overconfident about their "scientific" findings.

Following are several significant problems identified by the study:

1. Bias: Forensic scientists are often exposed to information which fosters bias in their stated opinions. That is, forensic "scientific" tests are rarely performed "blind." The examiner knows what they are supposed to find in the samples, which effect the outcome of their testing. Contrast this with doctors who test a new medicine. They are not told which patients are taking the medication and which ones are receiving placebos. This is appropriate "blind" testing and eliminates bias.
2. Error Rates: Most forensic sciences lack good information about how often examiners make mistakes - a basic requirement of any good science. Experts testifying in court often claim error rates for their technique is zero. Preposterous! Even the best of scientific techniques have an error rate. Without objective information about a technique's rate of error a jury cannot properly assess the credibility of the information.
3. Over-claiming: The only forensic science making regular use of probabilities is DNA profiling in which experts testify to the probability of a match. None of the traditional forensic sciences (ballistics, fingerprints, fiber analysis, or handwriting) currently have the necessary statistical foundation to establish accurate probabilities. Adding insult in injury, experts who testify are allowed to claim their methods are 100% accurate. Again, preposterous.
4. Structural Independence: The cops and prosecutors employ and pay the experts who testify in court. Do you believe these experts might have difficulty maintaining their professional independence from police and prosecutors who put food on their tables? I dare to say, yes.

So what can be done to control this "out-of-control" system leading to the condemnation of thousands of accused persons each year?

First, judges presiding over trials in which forensic evidence is used must exercise their role as gatekeepers to protect the integrity of our criminal justice system. They do this by requiring higher standards for forensic science when used as legal evidence. They should prohibit experts from testifying to impossibilities like "zero" error rates. They should compel the experts to establish the reliability of their scientific techniques with peer review and other methods establishing the credibility of their testimony.

Second, the criminal defense lawyers who defend the accused must object to the use of forensic evidence until the proponent proves its scientific reliability. That means the defense lawyers must learn about the forensic methods being used, learn about the scientific pitfalls, and raise objections in court based on established case law requiring judges to make findings of reliability. Finally, they must hire their own defense experts to dispute the prosecutor's evidence and cast doubt upon its credibility.

Our justice system demands no less.

Texas Criminal Appeals

2009-02-17T14:35:00.003-06:00

Several new appeals came into the office this year. Fortunately, my clients possessed the presence of mind to call early in the appeal process to preserve as many of their rights as possible. The appellate timetable is unforgiving and must be complied with strictly to preserve one's right to review. Criminal defense lawyers, and prospective appeal clients alike, must be familiar with the time limits applicable to criminal appeals in Texas.

A plea bargain, where the trial judge does not exceed the punishment recommendation from the prosecutor, usually waives the defendant's right to appeal except for matters raised by written motion and ruled upon prior to the plea. Motions to suppress evidence, for instance, are examples of such appealable matters. Most appeals, however, result when a criminal case is contested and fought-out before the trial judge or jury. The defendant appeals the conviction itself and errors committed during the punishment phase of the trial.

One's sentencing date is the key point in the appeal process. Most time limits imposed upon the defendant in a criminal appeal begin to run on the day a person is sentenced. In general, the defendant has 30 calendar days in Texas to file a motion for new trial or to file a notice of appeal which vests jurisdiction in the appellate court.

A motion for new trial is the best way to develop non-record claims such as ineffective assistance of counsel, disproportionate sentences, or juror misconduct. Other possible claims raised in a motion for new trial include the denial of counsel, the misdirection of the jury, defense witnesses prevented from appearing in court, or evidence tending to establish a person's innocence being intentionally destroyed or withheld. Also, any time the verdict is contrary to the law and evidence a claim can be raised in the motion for new trial.

The notice of appeal must be filed within 30 calendar days of sentencing unless a timely motion for new trial was filed. This extends the deadline for perfecting appeal to 90 days after sentencing. After the appeal is perfected the "reporter's record" (i.e. transcript) must be requested and a "designation for material" (e.g. exhibits) filed with the clerk. Although the request for the reporter's record and the designation are not subject to the 30 day deadline, it's a good idea to file these papers early to assure the ball is rolling and the appeal is proceeding in a relatively rapid fashion.

After notice of appeal is filed the defendant may request an appeal bond, provided his sentence did not exceed ten (10) years confinement. Granting an appeal bond is discretionary with the trial judge. The judge may also order the defendant comply with bond conditions like regular reporting , a curfew, or other reasonable conditions.

If you have any questions about appealing a criminal case in Bryan|College Station, or other jurisdictions in Texas, please contact the Texas Criminal Appeal Attorney immediately to discuss your case.

Defending a Child's Accusation of Sexual Abuse

2009-02-03T15:22:00.009-06:00

Defending a child's allegation that Daddy or Uncle Bill "touched my private" or "made me touch his bottom" is an incredibly daunting task. Prosecutors, police, child protective services, and the general public believe young children rarely conjure-up these allegations out of nowhere. However, there's a reservoir of research showing young children are susceptible to suggestive interviewing techniques by local child advocacy center employees, or even the police, who question a child once an outcry of this nature surfaces.

Research on suggestive interviewing techniques has identified six types of interview behaviors associated with false outcries of sexual abuse. These interview behaviors are as follows:

1. Positive Consequences - Giving, promising, or implying praise, approval, agreement or other rewards to a child, or indicating the child could demonstrate desirable qualities like helpfulness or intelligence, by making a statement to the interviewer;
2. Negative Consequences - Criticizing or disagreeing with a child's statements, or otherwise indicating the statement was incomplete, unbelievable, dubious, or disappointing;
3. Other People - Telling the child the interviewer has already received information from another person regarding the topics of the interview;
4. Questions Asked and Answered - Asking the child questions already unambiguously answered in the immediately preceding part of the interview;
5. Inviting Speculation - Asking the child to offer opinions or speculation about past events or framing the child's task during the interview as using imagining or solving a mystery; and
6. Introducing Information - Introducing information not previously mentioned by the child. The new information in either an interviewer's statement or question represents a substantial addition or discontinuity with the child's previous statements.

These six suggestive interviewing techniques are by no means an exhaustive list of all the different ways a forensic interviewer might impose suggestive questioning on a child. However, these techniques are typically the primary focus of forensic analysis of child "victim" interviews.

Sexual assault defense lawyers need training to recognize a suggestive child interview. The better practice is to hire experts in the field to evaluate and critique an interviewer's questioning of a child. If necessary, the experts can testify at trial, or inform prosecutors, that an interview was tainted by poor methods and technique.

Arrogance Raises Its Head Again in Brazos County

2009-01-16T11:45:00.011-06:00

Precinct 3 Justice of the Peace, George Boyett, was recently admonished by the Texas State Commission on Judicial Conduct after taking the law into his own hands by ordering a Texas A&M student into his courtroom following a traffic incident involving the judge and student. It was the third admonishment received by the judge from the Judicial Conduct Commission. (read the full story in the Bryan Eagle) Judge Boyett's jurisdiction includes much of the Texas A&M campus and students attending the University should be aware of his public record for violating provisions of the Texas Code of Judicial Conduct.

During the investigation of the current incident, Judge Boyett was found to have "acted in a manner that failed to promote public confidence in the judiciary." Further, he was found to have "used the prestige of his office to advance his private interests." And finally, he "did not act in a 'patient, dignified and courteous' manner toward those in his courtroom."

Several of the comments on the newspaper's story are worth repeating:

"This is the type of behavior that gives public officials a bad reputation in general. I think a 3 strikes and you're out rule should be considered by State Commission on Judicial Conduct. Boyett clearly does not show the restraint necessary for any Judge. Talk about road rage. I am delighted to say I have never met this man. I hope that remains the case."

"I have known this jerk for more years than I like to mention. He was a jerk from the begining and is still a jerk. He does not belong in a position of authority at any level. have you seen him in the film for defensive driving? It is a total embarrassment."

"Boyett needs to be removed from office. He's notorious for his abuse of his position. There's certainly conflict of interest, as his office deals with a lot of landlord-tenant issues and guess what? He's a major owner of rental property in the northgate area. "

"This judge needs a good strong opponent to run him in the next election. He needs to be removed from office.
JP Boyett thinks he rules the world, or the part near him, anyway. It's not surprising he did as described. The wonder is he didn't try to jail someone. "

A justice of the peace is a public servant and member of the judicial branch of government, not the executive. The job of the judiciary is to interpret the law, not enforce it. The bottom line? Judge Boyett has built a track record and reputation for arrogance and discourteous conduct toward those appearing before him. I agree a strong opponent should run against him in 201o and bring his record to light for the public's evaluation. I know Judge Boyett attempts to bring a sense of strength and accountability to his courtroom by being tough. But violating the rules of judicial conduct goes over the line, especially the 3rd time around.

Reversing a Bad Result - Ineffective Assistance of Counsel

2009-01-07T10:22:00.013-06:00

Several prospective clients called me recently asking how they can appeal their criminal conviction and sentence resulting from a plea bargain or an open plea to the court (a guilty plea and waiver without a punishment recommendation from the prosecutor). "With great difficulty," I say. A plea bargain accepted by the trial judge waives most of a defendant's rights to appeal. However, there are a few cracks in the armor which potential clients should be aware.

First, a defendant's waiver of rights and plea of guilty must be voluntary. That is, the person's plea must be knowingly and intelligently made. Furthermore, the trial judge must make this finding on the record. However, if a person received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, a good involuntary plea argument can be fashioned. In that case, the defendant's plea and waiver can be withdrawn and the defendant can start from square one defending the charges against them. There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea. Following are just a couple to consider.

The failure to investigate is a common basis for ineffective assistance of counsel. If the criminal trial lawyer failed to uncover facts about their client's case that, had the facts been known, would have created a "substantial likelihood" the defendant wouldn't have waived his rights but insisted upon a trial, can cause an involuntary plea. The failure to locate an alibi witness is an example of the failure to investigate. The failure to discover a prior conviction, being used to enhance punishment, was void or voidable, is another example.

Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case and that erroneous advice leads the client to plead guilty and waive their rights. One example might be where the client is charged with multiple counts of sexual assault upon a child. The trial lawyer tells their client "if you plead guilty and ask the judge to assess punishment the sentences cannot be stacked upon one another, but can only run concurrently." (WRONG!) The client pleads guilty, waives his rights, and the trial judge guts the client with stacked prison sentences. In short, the client's guilty plea was based on the erroneous advice of his lawyer. Had the advice been correct the client would have insisted upon jury trial. That's an involuntary plea.

Another common example of ineffective assistance is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor. Had the plea offer been communicated to the client, they would have accepted it. Although this is not an "involuntary plea" situation, it is yet another way to reverse a bad result for the client based on ineffective assistance of counsel.

Reversing a guilty plea and waiver is tough and technical legal work. Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions. However, a good Texas criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for a second bite at the apple. But critical time limits often apply! Contact an experienced criminal appeal attorney immediately to discuss your case.

The Jury Expert

2009-01-02T14:11:00.012-06:00

I am not a consumer of jury consultant services. However, for the well-to-do client, who has money to burn, a jury consultant might be an expense worth incurring on a big case. If you cannot afford the high-priced services of a warm-bodied consultant, then maybe reading a good journal on the subject might serve your interests, as well.

The Jury Expert is a publication of the American Society of Trial Consultants edited by Dr. Rita R. Handrich. Dr. Handrich's goal is to translate social sciences research findings into practical and relevant tools for the trial lawyer. To that end, the journal features articles by academics on their research areas. The journal then gets reactions to those articles by experienced trial consultants who translate the theory into practice. Trial consultant responses to the articles focus on how the research can be used in litigation advocacy.

In addition to articles by academics, The Jury Expert also features practice-oriented articles by trial consultants on a wide array of litigation topics. The journal publishes six times a year and subscriptions are free. Their current issue features articles on cross-examination of narcissistic witnesses; juror reactions to successful women; varying attitudes of liberals and conservatives toward punishment; conceptual persuasion; the relationship between juror damages awards and generation; and more.

The Hole In The Non-Disclosure Statute

2008-12-19T10:22:00.009-06:00

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 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?

2008-12-09T14:20:00.013-06:00

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.

The Statutory Warning - Legal Coercion

2008-11-26T12:13:00.007-06:00

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.

ABA Journal Survey on the Job Market

2008-11-21T13:40:00.002-06:00

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

2008-11-19T09:44:00.005-06:00

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

2008-11-10T09:45:00.006-06:00

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

2008-10-23T10:41:00.009-05:00

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

2008-10-13T16:27:00.017-05:00

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

2008-10-07T11:20:00.009-05:00

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

2008-09-29T09:36:00.016-05:00

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

2008-09-22T08:58:00.011-05:00

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

2008-09-15T13:09:00.016-05:00

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?

2008-09-08T08:00:00.005-05:00

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

2008-09-01T13:53:00.013-05:00

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

2008-08-25T13:40:00.006-05:00

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

2008-08-19T15:06:00.016-05:00

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

2008-08-07T16:24:00.012-05:00

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

2008-07-30T10:29:00.018-05:00

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

2008-07-23T07:00:00.009-05:00

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 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.

Intoxilyzer 5000 Machine Tolerance

2008-07-11T12:30:00.008-05:00

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 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 defense lawyer 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.

The Blood:Breath Partition Ratio

2008-07-08T09:58:00.008-05:00

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. The 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.

Mouth Alcohol and The Intoxilyzer 5000

2008-07-04T17:21:00.007-05:00

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.

Chemical Interference and the Intoxilyzer 5000

2008-07-02T09:45:00.004-05:00

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.

Temperature's Rising

2008-06-30T09:01:00.015-05:00

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.

More On Henry's Law

2008-06-27T10:41:00.008-05:00

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.

More about temperature problems in a later post.

The Intoxilyzer 5000

2008-06-25T16:41:00.009-05:00

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.

From His Porch

2008-06-25T16:31:00.002-05:00

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

2008-06-10T15:32:00.004-05:00

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

2008-06-09T11:07:00.005-05:00

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

2008-06-09T10:18:00.006-05:00

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?

2008-05-22T13:45:00.000-05:00

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.

Using the Badge

2008-05-21T15:24:00.018-05:00

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.

Are Bear Crawls the Answer?

2008-05-13T11:30:00.002-05:00

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

2008-05-07T06:00:00.000-05:00

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.

Finding Truth is TV Law

2008-05-05T14:56:00.011-05:00

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?

2008-05-05T06:50:00.015-05:00

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.

A Politicized Criminal Justice System

2008-04-24T11:50:00.008-05:00

Over at the Exposed blog, Chuck Ross wrote about the rogue state of affairs in the American criminal justice system. Chuck commented on some articles by New York Times writer, Adam Liptak, about the alarming U.S. statistic we lead the world in producing prisoners over even larger countries, like China. Reflecting on Liptak's articles, Chuck pointed out:

I began my career as a criminal defense lawyer around the same time this country began its “get tough on crime” campaign. It is clear to me that the pendulum has swung much too far in the direction of draconian retribution. Liptak proposes several possible causes for this alarming situation, among them the politicized nature of the criminal justice system. In my experience, each election cycle brings a new clarion call for longer, harsher, and more punitive sentences. The election of prosecutors and judges, and even the politicized process of appointing federal judges, feeds this out-of-control wildfire.

Chuck's thoughts reminded me of a trashy post last summer where I bemoaned the over-criminalization of America, starting with my local garbage man. No doubt the rise in potential felony offenses and harsher sentences are symptoms of the politicalization of our justice system. Tough on crime means votes. Tough on crime means job security. Tough on crime means not having to think through society's problems anymore - you simply lock them up or kill them. Beyond this, the public buys into these ideas effecting punishment verdicts and even plea bargaining.

Anyway, I'll leave with one last quote from Chuck:

Until legislators, judges, and prosecutors recognize the futility of our obsession with protracted imprisonment for individuals whose lives can be salvaged, we will continue to be a “rogue state” when it comes to making the punishment fit the crime.

Hired Guns

2008-04-23T08:41:00.011-05:00

Jamie Spencer brought attention to an interesting post by West Palm Beach criminal lawyer, Ron Chapman. Ron was lamenting that experienced prosecutors often cut their nose to spite their face by dismissing substantiated claims by a defense lawyer their client is innocent. Ron spoke of his personal experience representing a man charged with assaulting his wife by cutting her with a knife. A forensic pathology examination showed the wounds on the wife were self-inflicted. The prosecutors summarily dismissed this evidence. At trial, Ron's client was acquitted and the jury inquired why the case hadn't been dumped long before trial. Jamie surmised the prosecutors gave little credence to the defense expert because he was a hired gun. Since the hired gun was paid for his expertise, in the prosecutor's eyes, he must be lying.

I don't think prosecutors are that sophisticated. I think they just don't trust the defense on issues they've already made up their mind about. I've worked with prosecutors who, unbelievably, insisted police officers never lied or shaded their reports to support their theory of a case. They argued "why would a police officer risk his career to nail my client with a lie or prevarication?" The answer is simple, of course. Police officers are human beings and they like being right. They don't want their mistaken judgment discovered since it's embarrassing to be exposed in this way.

But back to the question whether a paid expert is less credible in the eyes of the prosecutor. Well, maybe. But the important folks to worry about are the jury. And it seemed Ron Chapman made the right call to press his case to trial and convince the people who really mattered that his client was falsely accused.

No More Excuses

2008-04-17T12:30:00.000-05:00

Grits has called us out to comment on the West Texas Polygamy case. I certainly appreciate a good prodding now and then. Scott, this is what I think.

First, I'm against polygamy. I'm against 14 and 15 year old girls having sex with 50 year old men. I'm against women being raised in a sheltered environment to believe their God-given purpose in life is to serve the needs of men. I'm against many things I don't agree with. But I'm also against the government sticking their nose into places it doesn't belong. I'm against searches and seizures based on less than probable cause. I'm against a set-up. I'm also against Child Protective Services imposing their moral worldview upon others through the use of powerful governmental resources. Who are we to impose our morality on people who want to live their lives separate from the world they view as hostile and sinful?

It's difficult not to be torn. Although many religious sects live their lives separate from mainstream society, we certainly don't want people using their religion as a justification for exploiting their young. Of course, where does one draw the line between freedom and exploitation? A tough question.

The problem is how to allow people to live in freedom, yet police their liberty enough to prevent injustices. If a seventeen year old girl wants to marry a 50 year old man, who are we to say no? I don't agree with it, and I'll say so, but imposing my moral worldview on others rubs me the wrong way. The trouble, again, comes when human beings use religion and freedom to exploit others, including their own. But like I said earlier, where does exploitation begin?

Beyond this, the initial entry and search of the West Texas compound couldn't look more like a set-up. A 16 year old complainant who they can't find and can't identify? A supposed 50 year old abusive "husband" who's living in Arizona at the time? Come on. I imagine law enforcement and CPS were just waiting for a chance to get onto this ranch and round up the usual suspects.

Furthermore, the idea of the Texas court system bearing the burden of this mess is beyond my comprehension. While the cops and CPS were itching to make THEIR mark on this isolated community, I suppose nobody gave any thought to the burden of placing 416 children in foster homes. (many of which have living conditions worse than where the kids came from in the first place)

So I don't have any answers right now. I just didn't want you to think we weren't thinking about these problems. Maybe things will become clearer as time goes on.

The Minefield of Texas A&M Student Discipline

2008-04-16T16:00:00.004-05:00

Navigating the labyrinth of administrative rules and procedures in student disciplinary hearings at Texas A&M University can be daunting, even for the well informed. At the beginning of the fall semester I posted here, here, and here about disciplinary procedures, sanctions, and student rights. These posts are must reads for students who find themselves embroiled in the administrative system of student discipline at the University.

A few weeks ago two young A&M students contacted me about a disciplinary hearing which had gone badly for them. A young woman had charged these boys with sexual assault which was fully investigated by the College Station Police Department. The criminal case was presented to the Brazos County District Attorney who refused to prosecute for lack of credible evidence. The boys had talked with the detectives (without legal counsel) and given their stories. Luckily, the sexual assault case was refused. However, this aggrieved woman then took her case to the Student Conflict Resolution Office at Texas A&M. She made a complaint of sexual assault and the boys were given notice of hearing which would address the merits of the woman's complaint.

Since the boys had been "exonerated" by local law enforcement, they wrongly assumed they could walk into the student hearing, tell their side of story again, and everything would be alright. Well, they were dead wrong.

After the hearing the boys were found responsible for violating sections of the University student rules prohibiting sexual assault and suspended for one year of school. They were required to complete several remedial educational courses before reapplying to the University without any guarantee of readmission. Finally, they were saddled with a permanent blot on their educational records which would follow them around forever.

Then they called my office for help.

The Appeals process was a minefield in its own right. Winning any appeal is like a snowball surviving in . . . well, you know where. Anyway, the Appeals panel would give great deference to the original panel's finding of responsibility. So, we worked like dogs to develop a showing the boy's student rights were violated and the evidence was insufficient to support the original finding of responsibility. After 3 1/2 hours of testimony and two hours of deliberation, the Appeals panel remanded the case back for a new hearing on the merits. We were relieved, to say the least. Although we'd hoped for a dismissal, as least we had another rare bite at the apple.

The moral of this story? Students involved in disciplinary proceedings should never assume things will be alright. They must call a qualified lawyer immediately to help them navigate these treacherous waters. Disciplinary sanctions on one's educational record can haunt you as much as a criminal conviction. Unfortunately, the students mired in these matters are very naive. They rarely tell their parents what's going on. A HUGE mistake.

Please don't err by failing to act. Call an experienced College Station student rights attorney immediately if you find yourself in trouble with the University. Tell your parents. Remember, you'll only get one bite at the apple . . . make it a good one.

Real Work

2008-04-16T11:55:00.001-05:00

Real fee paying work is getting in the way of blogging lately. I'll be back soon.

sg