You Don't Make Friends with Salad

Jeopardy! Tryout Update!

2008-07-02T13:11:00.006-05:00

So in between Jeopardy tryouts, my bachelor party in New Orleans, moving into our first house, additional wedding planning, a visit from the soon-to-be in-laws, a 3 day criminal defense lawyer's conference, etcetera, it's been a long few weeks.

Trying out for Jeopardy was a great time. I have wanted to get on the show for about 18 or 19 years now, though it's been about 5 years or so since I regularly watch the show. I had participated in the online contestant search earlier this year and heard back from them two months ago letting me know that they wanted to put me through the motions in person. Flew into Dallas, found the hotel, camped out at a Starbucks, drank way too much juice and iced tea, went back to the hotel, went to the restroom 4 times, and signed in for my appointment.

I was very surprised about the people at the tryout. Like me, they seemed normal enough. Or maybe that means I am so far down the geekhole that I can't tell the difference. There were only a few that met my stereotype for the typical contestant; one guy actual did declare that he lived in his grandmother's basement. Considering that I had expected to come in and be the most socially adept person in the room, I was a little crestfallen at this point.

We took another 50 question test, that I felt pretty good about. The scuttlebutt is that 35 or more correct (70% +) will qualify you to be on the show. I think I was somewhere between 38-40, and my studying did actually pay off to the tune of 2 questions. They next have you come up in groups of three and play a simulated mini-round. The Internet revelations about how the buzzer timing works were extremely accurate and helpful (even though I wasn't technically on the Hollywood set). There is a delay between when the question ends and the light comes on and you can ring in slightly before the light comes on and not be locked out. Still, I am not a particularly fast buzzer operator, but I'd say I got about 6 out of 15, which makes me slightly above average. The capper is the interview, which I thought went OK. I had hoped they would ask me to do my Celebrity Jeopardy Sean Connery impression, but I'm pretty sure there's one douche bag per audition who thinks they do it spot on. I was that douche bag.

After all of that, there was nothing more than the vague statement that we may be called in the next 18 months to fly to LA to be on the show. Based on my highly unsophisticated calculations (30 people per session x 3 sessions per city x 8 cities = 720 applicants), if a whole season is about 180 regular episodes and there are at least 2 new contestants per episode, I figure I have about a 1 in 2 chance of getting a call. Let you know what happens.....

MIA No More (At least beginning next week....)

2008-05-21T12:51:00.003-05:00

I apologize to my reader (Hi Mom!) for the sounds of silence the last couple of weeks. We bought our first house last week, and I am preparing for my audition on "Jeopardy!" tomorrow and my New Orleans bachelor party this weekend. I think the audition deserves a more in-depth treatment here, but I am reviewing some weak areas (Books of the Bible, Opera, English literature, Current World Leaders) and that is taking up most of my time.

To tide you over, here's some interesting stuff I have discovered in the past few days:

- Richard Wagner, whose work was heralded by Hitler, was quite the anti-Semite. In addition to being adopted golden boy of the Nazis, he published his own anti-Jewish screeds in the middle to late 1800s. Jackass.

- Deuteronomy 25:11-12 prohibits women for coming to the aid of their husbands by attacking the other man in the crotch ("[11] When men strive together one with another, and the wife of the one draweth near for to deliver her husband out of the hand of him that smiteth him, and putteth forth her hand, and taketh him by the secrets: [12] Then thou shalt cut off her hand, thine eye shall not pity her."). Something to keep in mind, ladies.

- Joshua, after destroying the walls of Jericho, took the Israelites born during the Exodus to a place in the desert and had them all circumcised. This is place is known by the name Gibeath Haaraloth, which means "hill of foreskins".

UPDATE: Smart Start's PR Team at Work

2008-04-30T14:09:00.005-05:00

This week I received my first lesson in the "someone's actually reading this thing" department. I posted a few weeks back about how one of my clients had been having some problems with his Ignition Interlock Device mandated as a condition of probation. I had no luck getting anyone at the company locally or at the corporate number given to me by the local offices.

Surprise, surprise, Debra Coffey left a comment and wants me to call her (and the number is one of Smart Start's exchange, so it seems legit). I will post if anything comes of this conversation.

The squeaky wheel may just get the grease, folks.

Diorama Drama

2008-04-24T14:05:00.007-05:00

Most of the clients that I have seen charged with criminal mischief fall into three categories: jilted lovers, road ragers, and graffitists. As it turns out, it may be time to reconsider my attempts to categorize people charged with criminal mischief.

The director of the Texas Military Forces Museum here at Camp Mabry is alleged to have destroyed a diorama built by high school students in Arizona. A previous museum director commissioned the diorama from the school, but Jeff Hunt (who was dismissed from a previous job at the Nimitz Museum in Fredricksburg) decided that because the work was historically inaccurate. Former employees claim that Hunt lost his temper with the diorama and tore it down over a weekend during Fall 2007. But wait! If there was an explanation for any inaccuracies, it might be because the book that the students based the diorama on was flawed. The author of the book? Jeff Hunt.

Now the high schoolers want criminal charges filed against Hunt, alleging that the diorama was valued at over $23,000 (and took over 6,000 hours to build!). They have enlisted some heavy hitters, getting both Sen. John McCain and AZ Gov. Janet Napolitano to petition Rick Perry to file some charges. Presumably, the State would try to charge Mr. Hunt with criminal mischief (Texas Penal Code Sect. 28.03). That section reads:

(a) A person commits an offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys the tangible property of the owner;
(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or
...
(b) Except as provided by Subsections (f) and (h), an offense under this section is:
...
(5) a felony of the third degree if the amount of the pecuniary loss is $20,000 or more but less than $100,000;

Ouch. 10 years in jail because he didn't like the diorama based on his own flawed book. Sounds like that bent Wookie could cost you, Jeff.

FLDS and the Fourth Amendment

2008-04-22T15:09:00.005-05:00

Scott at Grits for Breakfast called criminal blawggers out for not taking a stronger stand either way on the recent events in Eldorado, Texas.

The reason I haven't posted on this, Scott, is that I'm really torn. The culture of the Mormon polygamists is so foreign to me. I've seen the 20/20 episodes, the Dateline exposes, all detailing the harrowing tales of how women are trapped at any early age, how they are physically assaulted, sexually abused, emotionally trapped, and generally imprisoned in these communities.

But, as I have slowly realized, the only response to this laundry list of terrible things that I may "know" or think about FLDS communities that really matters is: so what? The Fourth Amendment says that that the suspicion must be particularized to individuals in criminal cases, and in this case the State of Texas has nothing. The subject of the alleged call for distress has yet to be located, and there's very strong evidence that the call came from a woman in Colorado, not a 16 year old girl. Further, the man who was supposed to have sexually assaulted this girl was not even in Texas at the time she said he was, a fact that was imminently verifiable by Texas authorities (he has been in Colorado, dutifully reporting to his probation officer). Moreover, the detention of 400+ children and their forced separation from their mothers and fathers has uncovered no evidence of any sexual abuse.

It doesn't matter legally if the searches and seizures did uncover anything, because the validity of the warrant to search YFZ Ranch is based on what's referred to by lawyers as "the four corners of the warrant". Basically, it doesn't matter what the search uncovers to corroborate the suspicions of law enforcement or whatever other information was available to law enforcement; all that matters is was there probable cause to believe a crime had been or was being committed based on the information contained in information used to obtain the warrant from the magistrate.

As much as I might abhor the polygamist lifestyle, as much as I might have an unsubstantiated hunch that something's wrong there or that a crime has been committed, it don't mean jack. The true measure of a democracy is how the government treats politically and socially unpopular groups. Texas, we have failed in this regard.

UPDATE: DWI still not a "violent crime"

2008-04-16T11:00:00.002-05:00

If you'll recall, I posted a few weeks back about MADD and Smart Start mischaracterizing DWI as a violent crime, a position which goes against the language used by every law enforcement agency and government organization in the USA. Well, the US Supreme Court released a decision today in which it held that a felony DWI did not constitute a violent crime (under the Armed Career Criminal Act). Just in case there was any question.

Texas Harrassment Law Struck Down

2008-04-08T16:36:00.005-05:00

It doesn't happen very often in Texas, but the 2nd Court of Appeals in Fort Worth struck down Texas Penal Code Section 42.07 governing Harassment by electronic communication in deciding Karenev v. State. The defendant in that case had been convicted for sending several emails to his soon-to-be-ex-wife which the jury felt were in violation of Section 42.07(a)(7). 42.07 reads:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: ...
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

The Fort Worth Court held that the statute was impermissible vague and offended the First Amendment, striking it down. This is because, as the Court of Criminal Appeals has told us, "vague laws offend the Federal Constitution by allowing arbitrary and discriminatory enforcement, by failing to provide fair warning, and by inhibiting the exercise of First Amendment freedoms." In other words, it's hard for a person to know what kind of conduct that a vague statute would prohibit (and ti gives law enforcement an unclear idea of what behavior they need to curtail), and therefore such a statute can not be enforced.

Much like a prior stalking law stuck down in 2006, the statute used terms from which it was difficult to discern what constituted prohibited conduct. The law did a poor job of defining what exactly "annoy, alarm, abuse, torment, embarrass, or offend" meant and who decided whether or not such conduct. Even if the statute more clearly defined the context of those terms and applied a reasonable person standard, 42.07 "employs, in the disjunctive, a series of vague terms that are themselves susceptible to uncertainties of meaning."

It's this kind of sloppy drafting that leads to laws being overturned. I would hope that someone in the legislature, especially given that many of them hold law degrees, could have seen this one coming. Instead, the legislature went ahead and passed a law that used almost the exact same language as the old Stalking law!!!! Let's stop whining so much about "activist judges" and worry a little bit more about "lazy legislators", OK?

(As a side note, this kind of stereotyping that hurts us all; not everyone from Bulgaria is an email harasser or a Quidditch-playing wizard-in-training.)

Why I practice criminal law

2008-04-08T11:04:00.005-05:00

From Orin at The Volokh Conspiracy: what at first glance is a humorous actual patent application for a "Method and instrument for proposing marriage to an individual." Sadly, this patent application is written by an actual patent attorney in the actual form, and thus goes on and on for about 5,500 words.

Allow me to suggest an amendment: [0044a] In the more likely event that Ellie comes to her senses and realizes she is signing up for a lifetime of this sort of tedium, she should instruct the limo driver to take her to the international terminal and freedom.

Lehmberg v. Montford, or Dirty Games in Local Politics

2008-04-06T00:22:00.016-05:00

As if shadowing every other race this year, the runoff for the Democratic nominee for Travis County District Attorney (and actual DA) has gotten considerably hotter over the last week. The race features veteran Assistant DA Rosemary Lehmberg and Mindy Montford, also a ADA in Travis County. Recently, an anonymous blogger posted that a fairly unpopular fellow around these parts, former TC Sheriff and Craddick-enabler, Terry Keel, was supporting Montford (along with Karl Rove, too.). Lehmberg's campaign seized upon the post and ran with it, hammering Montford for being a wolf in sheep's clothing. Well, as it turns out, the anonymous blogger turned out to be Kelly Fero, also a paid political consultant for Ms. Lehmberg. Oops. While this screw up could cost Lehmberg the election, Terry Keel went a step further and filed a criminal complaint against Fero last week, alleging that Fero had violated Texas election laws, as well as threatening a libel suit. Is there something to either of these claims?

Texas Election Code, Section 255.004 (a) & (b)
Section 255.004, True Source of Communication, reads:

(a) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person enters into a contract or other agreement to print, publish, or broadcast political advertising that purports to emanate from a source other than its true source.
(b) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person knowingly represents in a campaign communication that the communication emanates from a source other than its true source.

The implication made by Keel and his lawyer is that there was some sort of deal between Fero and Lehmberg to publish this information anonymously on Austin Political Report. I would think that the biggest hurdle for Keel's complaint to work under subsection (a) is that he's got to show that Fero's claim on a website constituted "political advertising". But if you look at the definition of political advertising under 251.001, you'll find that the Texas legislature defines it as

a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(B) appears:
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.

Wow. That means essentially that any statement subject to an agreement between a candidate and another that supports or opposes a candidate for political office is a political ad if it appears anywhere on the Internet. Wrote a blog entry? Political ad. Commented on a message board? Political ad. Left a comment to a news story on a website? Political ad. Needless to say, this seems like an exceedingly broad definition of "political ad" which offers greater First Amendment protection to a statement made on the radio or on TV than to anything that has anything to do with the Internet. You would even have a decent argument that an email (unless the State could show that it is a "similar form of written communication") has more protection than some pissant comment on some pissant website. I could go on TV and make a statement while misrepresenting my identity (or call into a radio station or write a letter to the editor that is subsequently published) and be in the clear, but all of a sudden I post on a lightly read blog and I'm a criminal? There might be some traction for a overly narrow attack via the First Amendment here. That is, the statute unfairly penalizes those who engage in this sort of conduct via the Internet and doesn't touch people who do the same thing (or the equivalent act) via TV, radio, or a newspaper.

Suppose, however, that the statute did survive First Amendment scrutiny, then Keel will struggle to prove that the "ad" "purports to emanate from a source other than its true source". Austin Political Report is posted anonymously and makes no representations about who is posting. If you don't state your name, then your not representing anything about your identity other than you're not willing to reveal it to the reader. If Fero had said represented his blog as being written by Keel himself or Rick Perry or Walter Cronkite, then there might be some traction under 255.004. He may have played a very misleading trick on his readers, but he didn't say he was someone he wasn't.

Lehmberg would also be immune from prosecution under subsection (a). She certainly can deny the requisite intent by virtue of her ignorance of the actual source. But assuming you (or a jury) disbelieved her, the campaign attributed the remark to Austin Political Report, not someone else. Technically then, she can argue that she may have failed to completely disclose her relationship to Fero/APR, but did not misrepresent the source of the report.

TEC 255.004, subsection (b) is a different story. A campaign communication is "a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure." This much broader net catches both Fero's publication of the statement and Lehmberg's use of it for her campaign. But it also catches any statement, spoken, written, or posted on the Internet, that has anything to do with any election. I would hope that a court could be persuaded that this is an overbroad restriction on political speech, but I'm not sure the State couldn't convince the court otherwise.

But the conduct required to constitute a violation under subsection (b) is pretty vague (at least in consideration of sources posted anonymously). Basically, any statement that says that a communication is from a source different from the one to whom it is attributed. As near as I can tell, Lehmberg cited APR for the Keel news. This was the source of the news. It just so happens that APR is also owned, operated, and written by Fero, a political consultant working for Lehmberg. "True" is not defined by the statute, so it's not clear if it would be satisfied by disclosure of one's "web handle" or a more "whole truth" or absolute/total disclosure. (Sorry if it seems like I'm parsing words here, but that's what we have to do, especially when it's not entirely clear what the legislature intended.) I guess given this nation's strong connection to anonymously (think Publius and the Federalist Papers) and the protections that courts have extended in similar circumstances (Paris-site's legal victory) I'd have to come down on the side of at least allowing this to satisfy the definition of true.

Texas Election Code, Section 255.005

A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person misrepresents the person's identity or, if acting or purporting to act as an agent, misrepresents the identity of the agent's principal, in political advertising or a campaign communication.

Misrepresentation is defined by my very dusty copy of the 3rd Edition of Black's Law as "[a]n untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." Black's isn't the end-all be-all of what the Election Code takes as the definition of misrepresentation, but the term is not defined in that code, so it's at least a good starting point. Let's take each of these definitions in turn with regard to Fero:

- Untrue statement of fact: I'm not sure, as I suggested above, that writing anonymously is necessarily "untrue". If you are clearly writing without identifying yourself, you can at least argue that you are being truthful about your anonymity.
- An incorrect or false representation: The same logic applies here. I haven't said I'm John Smith, I just haven't said who I am.
- Apprehension of condition other and different from that which exists: This definition casts a wider net and arguably picks up the whole truth notion. Specifically, the fact that Fero is not disclosing the fact that he is a paid consultant for Montford's opponent.
- A statement made to deceive or mislead: Again, a wider net means more potential trouble for Fero. He would have no defense here that he didn't know the campaign was going to use this one; the loose definition of "campaign communication" picks up any statement made relating to a campaign.

There is a difference between not naming oneself and giving oneself a false name. But this charge would just come down to how "misrepresents" is defined under the Election Code. And a pre-existing relationship between Fero and Lehmberg makes this even more difficult to sort through.

Texas Civil Practice and Remedies Code, Section 73.001

A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Mr. Keel also hinted that he was considered a civil action for libel against Fero. Basically, a person has a cause of action if another writes a defamatory statement about the person. I think it would be pretty hard for Keel to show that his reputation in Travis County/Austin is somehow impeached or otherwise damaged by Fero's statement; Keel did a good enough job of that as a legislator and a vital cog in Tom Craddick's attempts to retain the Texas Speaker's position. (He's widely vilified here in Travis County, an opinion which ha s been expressed many times, just in case he doesn't like my assessment either.)

I am not a civil attorney, but I know enough about the law to confidently tell you that this claim is a bunch of horseshit. I'd rely on the lawyer retained by Mr. Fero, Buck Wood, who said it best: "What's in that blog is true ... If they will just file their libel suit, let's get after it. They are afraid of a libel suit." Ah yes, truth is an absolute defense to libel, so if Fero could show that Keel made such a statement, then it's game over. We haven't heard anything more about this supposed lawsuit, and like the whole incident, this is more about trying to make Lehmberg look as bad as possible than it is about Keel recovering any damages or seeking redress for any crimes allegedly committed against him.

Ultimately, this may prove to be a distinction without a difference. Lehmberg and Fero could very well prevail in all of the above legal arguments, but this arrangement still stinks. All the backpedaling and post hoc remedies in the world can't make the stench go away. I guess we'll see what effect this had Tuesday night....

UPDATE: As I was writing this long-winded post, I stumbled on TexasKaos' take on the same subject. I can't say I disagree much. The Legislature has gone after critics on the Web and created a much more privileged spot for people on traditional mass media (maybe because they hate some of the things written about them online???).

Lawyers and Web Ads

2008-04-04T15:40:00.001-05:00

Jamie at Austin Criminal Defense Lawyer is decrying the online ad spending of the local criminal defense bar. According to his estimates, in the Austin market alone, criminal defense attorneys are spending about $1 million per year on Google's cost-per-click AdWords program. I'm not sure that the number is quite that high, but if it's an overestimate, it's not by much.

For the lawyers who are getting in and bidding upwards of $50 for the most popular keywords and phrases, I have to think that Jamie's right. This cost is being passed on to the clients. But lots of costs get passed on to clients: rent/mortgage payments, staff salaries, etc. In a market like Austin where the fight for clients is so competitive, you have to have some way to drive potential clients to call, email, or walk in the door. Referrals are great, especially from former clients, but it takes a long while for a practitioner (however great) to develop a critical mass of new clients based solely on reputation.

So we advertise. We run ads on TV, radio, newspapers. We send out direct mail flyers and post ads in restrooms. We print up key chains, lighters, matchbooks, pens, and all manner of things just to get our names out there. We might even buy terribly misleading 1-800 numbers. All these costs are passed on to our clients. I think people understand the need to advertise. But if clients are so upset about having these costs passed on to them by the big ad buyers, then they need to do a better job of researching their attorneys better and speaking to more than one or two lawyers about their cases. (I encourage every one of our potential clients to seek at least a second (and preferably a third) opinion about their case.)

Buying keyword ads on search engines is one of the smarter ways to target your clients. You can go for huge market share and try to get as many customers as possible, but you can also be smart about your placements, carefully track your costs, and (this is the best part about Internet ads) track what ads and keywords do well and generate actual clients. You struggle to do that with TV or Yellow Pages, but I can say confidently that our website redesign and ad campaign has paid for itself 3 times over in the few months since we relaunched. We haven't had to raise our prices to cover that. Ultimately, we want to be high in organic search results, too, but that takes time and knowledge to do it yourself or a huge commitment to an SEO company. More importantly, eye tracking studies have confirmed that the first place that most users tend to look (and click) are the top ad placements and the first three organic results. You should do both, at least where it makes financial sense.

Ultimately, it's up to our clients to say how much is too much. There are several lawyers here in town that charge several times more than we do, largely because they're collecting their trial fee in every case. If 98-99% of all criminal cases in Austin are settled without a trial (that's just a number I hear thrown around a lot), then why are potential clients paying for something they don't get (or don't want or shouldn't have, etc.)? If you're looking for a lawyer, these are the kind of questions you have to ask. Don't be pulled in by a sales pitch. Do your homework.

Sidestepping Proof

2008-04-03T16:17:00.005-05:00

Lawrence Taylor at DUI Blog touched on an interesting way that state legislators have tried to get around proving that a person was actually driving while intoxicated. Most states require that the prosecutors engage in a process called retrograde extrapolation to prove that a breath, blood, or urine test taken some time after arrest (and obviously, after driving) has the requisite bearing on BAC while the person was driving. In California, Vehicle Code Section 23152(b) makes it a:

rebutable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

This forces the defendant to prove that a sample taken 3 hours before he was observed driving is inaccurate, essentially flip-flopping the presumption of innocence. How? Well, the body could still be absorbing alcohol into the blood from the stomach and the person who blows a 0.09 at 12am could easily have been a 0.05 when pulled over at 9pm.

Under Mata v. State (46 S.W.3d 902 (Tex. Crim. App. 2001)), the State must prove that the defendant was actually intoxicated while driving, not while submitting a breath test. But it's not as if MADD isn't trying to destroy the presumption of innocence through legislation. Look for this bill to get re-submitted in the 2009 Legislative Session by another legislator who doesn't grasp one of the most vital cornerstones of our criminal justice system.

Attempting to Navigate MADD's DWI Maze

2008-04-02T12:53:00.009-05:00

The San Antonio Express-News reports today about a new program in Bexar County designed to reduce the DWI caseload there. Basically, people accused of DWI will have those cases dismissed in exchange for pleading guilty to "Obstructing a Passageway-Intoxication" and being put on a more heavily supervised form of probation. DA Susan Reed noted that the two-year backlog in DWI cases has led her office to create the program. Maybe that's because the Bexar County DA's office doesn't offer reductions in borderline or bad cases for the State. So in essence, this is a problem that her own policies have created, but she wants to cast this as something caused by defense attorneys or defendants (How dare they insist on a trial!!!!).

Beyond her misunderstanding about why there is a 2 year wait for jury trials, there are several problems with her program:

- First, there is no crime of "Obstructing a Passageway - Intoxication". Section 42.03 of the Texas Penal Code outlines the offense which is basically blocking a road. The charge is popularly used by County and District Attorneys as a reduction from a DWI (along with Reckless Driving) on those plea bargains where the State knows it would have a difficult time proving a DWI. In their mind, it's better to put folks on probation and be able to monitor them than run the risk they walk out the door with an acquittal. For defendants, it's sometimes a good deal because you avoid all of the direct and collateral consequences of a DWI conviction (The $3000 DPS surcharge, the stigma of a DWI conviction, a possible criminal license suspension, higher insurance rates, and maybe the defense attorney's jury trial fee). However, there is nothing in the statute or the Code of Criminal Procedure that allows for a finding that the person was also intoxicated while doing so. This would be akin to saying "Failure to ID - Leprechaun" or "Providing Alcohol to a Minor - Unicorn". It's fantasy language that has no legal bearing.

- Second, I don't this policy will operate as smoothly as DA Reed seems to think it will. Section 49.09 of the Penal Code specifies that a DWI charge can be enhanced "if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated." Now I don't have the legislative history for this, but the descriptive language of 49.09 is likely there so that out-of-state convictions for crimes that aren't called Driving While Intoxicated (e.g. Driving Under the Influence, Operating Under the Influence, Operating While Intoxicated) can nevertheless be used to enhance that new charge to a Class A Misdemeanor. (In Texas, this enhancement is no small thing; a DWI-2nd carries many higher penalties and includes mandatory jail time even if the defendant is given probation.) But it does not mean that an offense like "Obstructing a Passageway - Intoxication" can be used to enhance a subsequent DWI arrest to a DWI-2nd. Pay attention to 49.04(c), which limits those offense to actual DWI convictions.

So what, right? Well, what this means is that people who have Obstructing a Passageway convictions (even if with some language indicating an intoxication "finding") cannot be enhanced on a second DWI arrest; they can only be charged with a DWI 1st. This is what will ultimately kill any support of MADD (the spokesperson quoted in the article seemed to think this was still a possibility), and hence the long term viability of this program.

- Third, the program requires an IID. I have less of a problem with IID for someone who's pleaded guilty, but I still say it's a very unreliable machine and any failures fall at the feet of the probationer, so I'm not entirely thrilled about it being a mandatory condition.

- Fourth, the scheme proposed by Bexar County is time sensitive; you must apply for the program within 30 days of the date of your arrest. In Austin, the video of your arrest isn't available until about 60-75 days after you have been arrested. Assuming San Antonio takes at least 31 days, this program has the effect of pressuring the accused to forfeit their right a trial (and a lot of the concomitant rights that go along with that) on a ticking time bomb. What if the video would have shown that the officer was misleading or lying about bad driving? What if the behavior and alleged "clues" are equally misrepresented or lied about in the officer's probable cause affidavit? This is the same dilemma that the accused who languish in jail (get out today without knowing all the facts or stay in jail and fight the case for a few more weeks) and it really troubles me to think that this DA's office is just refusing to engage in any reasonable sort of good faith negotiations after 30 days.

Ubiquitous Snitches

2008-04-01T17:25:00.001-05:00

Grits for Breakfast, who has written extensively on the problems inherent in snitch-based evidence, picked up this story from the Austin American Statesman regarding a high profile cocaine arrest.

Scott Mitte, who among other things, sat on the board of his parents' charitable trust, had apparently been spotted by a civilian at a strip club parking lot with coke in his car, and the officer saw white powder [of course he had blow below his nostrils, check out the 'stache!]. The officer approached him and a subsequent searches revealed "plastic bags of cocaine in his pocket, wedged in a chair at his table in the club, in his vehicle's glove compartment, and on the car's center console." So the good folks did what they (and APD) almost always do, they offered Mitte a deal: get us some other arrests and we'll help you on your case. (Mitte screwed the pooch, though, showing up at a meeting to set up another controlled buy with his own one ounce stash of yayo. Deal taken off the table and homeboy has two cases now.)

In my experience, the suspect has a menu of options: x number of arrests equals a probation offer (negotiated supposedly by the law enforcement agency), y equals a deferred adjudication, and z (somewhere closer to 10) equals a dismissal. Hell, it's not as if they're being secretive about this arrangement ("It's offered to everybody.")

So someone arrested for possession is told in no uncertain terms that by getting others arrested, he can secure his own freedom. Is there any more unreliable system than that? Is he now going to be truthful about what he alone witnessed? I haven't yet had on of these go to trial, but I would be interested to know if the DAs regularly disclose this as part of their Brady obligations. I think it would be great for the jury to hear that they consistently rely on this kind of information to prove their drug cases, information obtained under the shadow of a threatened felony prosecution and for no other reason. Blech.

UPDATE: Hat tip to an anonymous commenter, who pointed us (is that the royal we?) to a story in Chronicle of Philanthropy (subscription only) that reported the Mitte Foundation had to withdraw some scholarships it committed after it ran out of money earlier this year. As it turns out, this is not the first time Scott or his dad have been accused of wrongdoing (Scott for being sued 4 times for sexually harassing Mitte Foundation employees, and dad, Roy, for misusing company funds). Why can't I have clients like this?

UPDATE: More details about misdeeds at the Mitte Foundation were reported by the Boston Globe in 2003 (Check out Page 6 of the article for the specifics). According to the article:

Since 1999, the foundation has purchased Tony Bennett concert tickets worth $4,003, a $4,037 custom tuxedo, and six doors totaling $6,090 that were delivered to Mitte's home, according to an audit of foundation expenses. During Mitte's tenure, the foundation's spending on travel and meetings rocketed from about $50 a year in the late 1990s to $183,000 in 2001, while his compensation also leapt from $31,000 in 1999 to $220,000 in 2001.

And it paid $368,000 in legal fees last year, up from $6,689 the year before, in part to cover a legal battle between the foundation and Roy Mitte's company. Also last year, the foundation footed the bill for an out-of-court settlement with a woman who sued Mitte for alleged sexual harrassment. The foundation disclosed a $139,000 "legal settlement'' on its 2002 tax return.

The foundation's lawyer, Jeffrey T. Knebel, declined to discuss the settlement or answer questions about other foundation spending. Mitte resigned as executive director in August, 2002, when the harassment charge became public, but remains on the foundation's board of directors and serves as its senior vice president. He did not return calls from the Globe.

In a statement, the foundation said it believed its expenses were "reasonable, appropriate, and have been greatly justified."

Self-Affirming Sensastionalism and DWI Prevention

2008-03-24T16:31:00.010-05:00

Texas law allows for a probation requirement whereby DWI offenders must have an Ignition Interlock Device installed on their cars. Travis County judges will also require it as a condition of pretrial release in certain cases (i.e. repeat offenders, egregious offenses, or especially youthful suspects). Several companies sell products which affix to the person's ignition and prevent them from driving. Amazingly, one such provider, Smart Start, has marketed their products to defense attorneys in what I can only guess is an attempt to get us to suggest their product over others.

Two things happened today which give me pause (above and beyond recommending a company that has the potential to put my clients back in the pokey):

1) We have a client who is alleged to have violated the terms of his probation by submitting breath samples with alcohol in them while trying to operate his vehicle. He noted that he received a different message from the machine than what is normally received for a failure. Trying to clear this up, I gave Smart Start a call and expected them to at least generally discuss the machine and it's operation, since I am, at least potentially, in a position to send them business. The local employee I spoke with said that their position was that they would not share any information about the product with the client or the client's lawyer. In short, he concluded, "Sir, I'm not telling you anything." Fair enough, but tell your Marketing folks to stop blowing smoke up my ass, OK? Besides, your stonewalling notwithstanding, a subpoena should produce the information we're looking for.

2) While I searched for technical and operational information about their products online, I stumbled across something that I found a little disturbing and a lot misleading on their homepage. At the bottom of the page, the have some text which claims "DWI is the nations [sic] most frequently committed violent crime" (you may have to Reload a few times to see the same banner). It's certainly a noble goal to prevent drunk drivers from re-offending, and I can honestly say that the alternative to an ignition interlock device is ridiculously cost-prohibitive for most people convicted of a DWI, so I do give IID companies credit for helping to allow my clients to drive so that they can keep their jobs.

But calling DWI a violent crime is ridiculous (those are all law enforcement sources, BTW). DWI is completely outside the common understanding of what a violent crime is. A "violent crime" is one where one person threatens or does violence to another (think murder, rape, aggravated assault, child abuse, robbery, assault, etc.) Yes, some people who are DWI kill or injure innocent victims. But not everyone who commits a DWI (or who is arrested for DWI) fits that description. This is the same as saying "Speeding is a violent crime", "Weaving in a lane of traffic is a violent crime", or, as happened to a client who came in today, "Stopping to aid another motorist who got into an unrelated accident is a violent crime." It's dishonest, even if it's well-intentioned.

More proof that words do (should?) matter.

UPDATE: The US Supreme Court agrees with me. In the context of defining "crimes of violence" under the Immigration Code, a DWI does not belong. So says Leocal v. Ashcroft. Take that Smart Start webmaster!!!!

Travis County's Finest

2008-03-21T08:28:00.004-05:00

Not your best moment, Adam. With all apologies to Judge Breland, though, it is sort of humorous to see "simulated masturbatory gesture" in a official court document.

Perhaps it's time to reconsider using "Bulletproof" as your nickname? Besides, you can't give yourself a nickname, Coco.

(FYI, "contumacious" means obstinate; stubbornly disobedient; persistently, willfully, or overtly defiant of authority.)

Loyalty Defined

2008-03-20T10:25:00.005-05:00

It's nice to see that the Sixers crowd last night was so classy in welcoming The Answer back to South Philly. The Illadelph is not known for this kind of behavior and it was great to see him get so emotional too.

If only the rest of the city could behave this way. I still believe Joey Vento's signs at the cheesesteakery-that-shall-be-unnamed are awful and likely intimidate non-whites, but the city attorneys just didn't do a good enough job of convincing the Commission on Human Relations that "Please Speak English" signs resulted in discriminatory refusals of service. Now, if someone was to put together an elaborate hidden camera sting (I'm looking at you Chris Hanson....), then they could likely connect the dots. The city won't push too hard, though. They're not out to commit political suicide.

(Of course, the ultimate irony is that Joey Vento's ancestors likely suffered terrible discrimination when they arrived in Philadelphia from Italy, a fact that is entirely lost on him.)

SXSW: Days 2-4

2008-03-19T09:58:00.004-05:00

So, after having a great time on the first day of SXSW, I completely lost steam going into the weekend. I think, at age 30, the simple act of going out until 1am for that many nights in a row has the tendency to wear you down.

In any event, on Thursday the Missus and I made the trek into the Mouth of the Cat. We parked and walked 13 blocks to see The Presidents of the United States of America. These guys were part of the mid-90's influx of moderately talented bands who rocked hard and were marketed harder. I came more for the cache of seeing how far they had fallen from Top 40 fame.

Wheatus was performing when we got there. I can't say much about them other than their name is oddly similar to weenis (where have you gone Wicked Sceptre?). We met an old friend of ours there, so maybe it was just because we were too busy catching up to pay them very much attention. Oh well, next time I'm in Long Island....

PotUSA really caught me off-guard. I expected this to be the typical "we're still playing the string out on our top 40 hits" moment of SXSW. However, despite being about 2 times as old as the crowd, they brought it, enough to make me ignore the old friend. They had great energy and their new material was excellent. Secondly, they played both their radio songs ("Peaches" & "Lump"), and both were well-received (which makes me incredibly two-faced since I will with one breath accuse them of being two hit wonders and in the next, express joy over the fact that they played said hits). I might actually take a flyer and purchase a CD.

Friday was super-packed on W. 6th. by the time I got down there, hoping to see North Mississippi All-Stars or The English Beat, it was full up. Oh well.

My vote for the coolest show that was booked as an official participant that I did not get to see was Wing. For those of you not familiar with her work, here's a quick summary: Wing is a Hong Kong native and current resident of New Zealand who has released 14 albums of her covers of popular music. She does not appear at all familiar with any of the covers she performs, all songs are sung about 3 or 4 octaves higher than originally composed (except apparently for her Alto album), and most are off-key (I suggest you listen to some samples here). She also appeared in a South Park episode. Unfortunately, the Missus and her dad were not as enthusiastic about the performance as I was, and I guess I need to work on my persuasion skills if I have any shot at making this law thing work.

SXSW Music: Day 1

2008-03-13T10:27:00.007-05:00

I have something embarrassing to confess. Despite growing up in Austin, being in Austin during Spring Break after that on numerous occasions, and living here for the past two years, I have never been to a single official musical event. There. I said it. Flashback to Monday. A guy who we met at our local had made a ridiculous bet (whether Dan Rather would win his lawsuit) and I think realized his judgment had been affected by the sauce and was looking to settle up. Boom! Two wristbands! I am a South By virgin no more.....

Last night, I spent about an hour on the official website narrowing down what bands sounded like they would be fun. I found a lot of interesting sounds there, but the venue I was settling on had to overcome my fear of dealing with East Sixth Street. Finally, I found music I liked at a venue I could park at: Warp Magazine's Show at Opal Devine's Freehouse. The Missus was not enthusiastic about going out (probably because she didn't have the last 1 1/2 hours invested in finding a place to go to). I saw three performances, and my neophyte reviews follow:

Kanko: These guys are actually from Austin, and their music is a little hard to describe. Their were some moments of mariachi, some surf rock sounds, a rapper's delivery, and a little bit of punk thrown in. The mostly Mexican crowd didn't seem to get it at first, but by the end they had people moving.

Los Dynamite: Mexico City band with English lyrics and a huge following who came up to support them from DF. Fucking brilliant. Strokes-y, Hives-y, Energy. Made a 32 year old feel young again. For 35-40 minutes, at least.

Sussie 4: I talked to their front man, Odin, while we were waiting for Los Dynamite to play, and he had a great attitude and seemed real psyched to be down here. Then they came out and blew me and the audience away. The idea of live techno doesn't appeal to a lot of people, but everyone in that tent was moving within 2 minutes of the first song. Odin was all over the place, playing drums, tweaking the Korg, playing bass, and he probably played a xylophone too, but I couldn't see from my angle. For God's sake, his name is Odin, dammit!

Brilliant.

Immigration Follies at the Travis County Jail

2008-02-17T15:00:00.001-06:00

(Work has been very busy, I just relaunched our website, and we've had solid plans for the last 6 weeks. A weekend with no plans, and I have a whole bunch of stuff to write about. For God's sake, relatives of my friends are taunting me.)

Recently, the Travis County Sheriff invited the Immigration and Customs Enforcement division of the Department of Homeland Security to set up an office in the Travis County Jail. ICE has recently hired a bunch of new agents and is trying to deport as many folks as possible and one the easiest ways they see to do this is to grab everyone they suspect may be illegal at local jails.

The uproar, even among lawyers, has been very loud. There's a lot of folks who suggest that the effects on locals will be huge by deporting people who were otherwise detained for non-criminal offenses (maybe unpaid traffic or parking tickets??). Families will be ripped apart and forced to leave well-established lives behind (and at one meeting on the subject I attended, several people noted that this had already happened in the mere days that policy had been implemented.)

But reasonable people (and unreasonable ones, too) can disagree about whether this is such a bad thing. After all, I've had a few conversations where I've been made to feel that just because I don't think we should have a screen door at the border, I've got to turn my pinko-liberal card in. So the biggest and best objection I have to the scheme is one Jamie at Austin Criminal Defense Lawyer recently nailed down: that this scheme allows ICE to detain anyone who they think may be here illegally. This means that once the bond for a criminal charge has been set and the detainee is free to go, ICE can essentially hold that person until they prove their citizenship. I don't know about a lot of you, but I don't carry my birth certificate or my passport around with me. So it could theoretically be a couple days before they are released.

This scheme seems similar to the phenomenon known as "DWB", or Driving While Black. This policy encourages law enforcement to engage in discriminatory conduct. Faced with the dilemma of arresting someone or just giving them a citation and a notice to appear? Well, are you brown-skinned? Is your last name Martinez? Well, then you're going to spend a couple days locked up while we sort this thing out. You don't mind, do you?

All Austinites should mind and all Austinites should be pissed off. But I won't hold my breath.

UPDATE: Apparently, Phoenix PD is starting to use the same policy.

UPDATE 2/19/08: If you question whether or not citizens actually are getting caught up in this web, take a look at what ICE's Deputy Director fo Detention and Removal Operations testified to before Congress. Keep in mind, he is admitting that citizens have been deported. Not just detained, but deported!!! As in grabbed off the street and taken to Mexico! Does it have to happen to you or someone you know before you care?

Cats don't like Kiddie Porn either

2008-02-16T17:45:00.004-06:00

A woman called the Austin Police Department a few weeks back after her cat found something between the cabinets and the ceiling in her apartment. The woman had a friend stick his hand in the hole, and out popped a stack of kiddie porn DVDs. Police found some fingerprints and tracked down the old tenant, Luis Jimenez, who told police he had stuck his hand in the hole and must have touched something in there. Nice. Unfortunately for Mr. Jimenez, Article 38.23 only applies to people, not animals.

Please folks, when you move out of your rented apartment that someone else is going to occupy, don't forget to bring your rat hole stash of child pornography with you. Cats hate that shit.

Random Australia Observations

2008-01-07T11:23:00.000-06:00

Just got back from 2+ weeks in Australia. Some random observations:

- Australia has tons of camels. Seriously. In fact, Australia has the biggest wild camel population in the world. So naturally, being tourists, we had to go on a camel ride. Our guide was quite quick to correct me when I asked if the camel I was riding on was a spitter. Camels don't spit. They "hiss when they have water in their mouths." (Apparently, the Australian Bill Clinton works for the Frontier Camel Farm.) Anyway, he did confirm that camels did bite but ours seemed nice enough. They all had camel toes, though.

- We did not see a single wild kangaroo, despite being told by the fiancee and her parents that they were everywhere. We did see one whilst feeding wallabies, which are the Mini-Me equivalent of regular kangaroos. I can only regard that one as being semi-wild since it was at the tourist feeding station.

- Everything in the Outback is deadly. Lizards, snakes, crocodiles, plants, the weather, the lack of water, spiders. Even the rocks are poisonous.

- You walk into any restaurant in Australia and you are likely to get excellent food. Every meal we had in Australia featured great food, even in the middle of nowhere. Alice Springs was especially surprising. If I went to a city of 23,000 in the US, I would not expect much quality or variety from the restaurants. But Australia knows how to cook.

The service, on the other hand, was below average at best. Part of it probably had to do with the European style: slow meals to be enjoyed with wine and inattentive wait staff. Part of it seemed to be just disinterest in the customers. One cook asked us how we wanted our eggs and then told us that scrambling them would take too long. Another waiter told us that a special on the board was not available because she couldn't pronounce the Indian name (or at least that what we suspected). Still, given the quality of the food, the service thing was pretty minor.

- When we were in Alice Springs, nearly every 50 feet there was an Aboriginal sacred site. According to our hosts, it's OK to go on sacred sites (given that 2 or 3 were in the middle of their neighborhood) but it's not OK to die on them. I was given a boomerang on Christmas and my first throw ended up in one of the sites. I have no idea what that means.

- We visited Uluru (Ayer's Rock), which is Australia's most recognizable natural landmark (on land, at least). It was pretty cool to see in person, but the walk to the summit was closed while we were there. Owing to the fact that it is a sacred site, my understanding was originally that it was OK to climb the rock just not to die on it. Immediately next to instructions and rules about climbing Uluru is a plea by the Aboriginal tribe who own the park for visitors not to climb. So what they really are saying is: "Please don't climb, but we recognize that you have spent thousands of dollars to come here and we want to continue to take your money so it's OK if you really want to climb."

- De juris segregation lives in the Northern Territory. While we were in Alice, there was a grog ban in effect which prohibited the sale of alcohol to the Aboriginal communities (bush towns populated by the Aborigines). But in town, the Aborigines are welcome to drink at Todd's Tavern, so long as they don't go into the Whites Only room. I kid you not. They might not have the signs up, but they are channeling the Jim Crow South in many respects. Also, our cousins to the south, due to not having a constitution, can set up roadblocks to catch grog-runners, the Dukes of Hazard of the NT, without having to worry about a silly thing like the Fourth Amendment. Must be Dick Cheney's idea of heaven.

Life for indigenous Australians seems pretty bleak from what I saw of it. European Australians generally have a lot of hostility towards them, alcoholism and sexual abuse appear to be rampant, poverty and malnutrition are widespread, and there is little employment in the communities themselves.

When life imitates disgusting art

2007-12-10T13:23:00.003-06:00

Canada's soon-to-be worst serial killer apparently fed his victims to pigs at his British Columbia farm. I think Bricktop said it best: "Never trust a man who owns a pig farm."

(While you ponder which one of the above gentlemen is creepier looking, please c onsider that Snatch is not the only recent movie to feature pigs performing this function. Maybe it's time for the PADL (Pig Anti-Defamation League) to get to work on some full-page NY Times spreads....)

Civil Rights in Southern Louisiana Two Years after Katrina

2007-12-04T14:04:00.000-06:00

This study by the ACLU came out in August 2007, so I'm a little behind the curve here. In any event, it reveals some disturbing truths about what it means to be poor, black, Hispanic, or accused of a crime in Orleans Parish after the hurricane. Problems run the gambit from:

- Voter disenfranchisement;
- Housing discrimination ("We're not taking anymore of you people");
- Over-policing and racial profiling;
- Deplorable (read: Third World or 19th Century) jail and prison conditions (not just for people who have been convicted but who have merely been accused); and
- Continued problems with adequately funding indigent defense.

It's very depressing to even think that this sort of thing could happen here in the US and A, but I think the fact that it continues to happen in New Orleans is probably probative of the fact that it does happen elsewhere in our country (especially where the light of day doesn't or won't shine). Let's give thanks to folks like Katherine Mattes of the Tulane Criminal Defense Clinic who are out there fighting for people who don't have anyone else to fight for them.

(By the way, for those of you inclined to ignore a study like this because it comes from the ACLU, keep in mind that the ACLU is active in protecting all our right s, even those related to the Second Amendment.)

Racism in Williamson County: How far have we come?

2007-11-30T11:02:00.000-06:00

Georgetown, Texas (just up the Interstate from Austin) is very proud of the fact that in the 1920s, the local DA (and future governor), Dan Moody, led a successful murder prosecution against the KKK for what amounted to murder and organized crime. Several Klansmen were sent to the pen, and the event helped propel Moody to state office. In fact, Georgetown regularly performs the play "You Can't Do That, Dan Moody!" to celebrate this proud moment where white citizens finally stood up to the Klan. In fairness, the community's disgust with the Klan had more to do with their promotion of lawlessness and their killing of a white man than it did with a rejection of the Klan's position on racial superiority and threats to the black community.

The story makes for a nice whitewashing of the past, but the reality of racial dynamics in modern-day Williamson County is much more disturbing, much less noble, and frankly, repugnant. The prosecutor's office routinely gives much better offers to similarly situated white defendants than their black counterparts, based on a story that ran in the Austin Chronicle in September 2004. The reporter looked at two sets of defendants: 9 African Americans originally charged with distribution of crack cocaine in an alleged drug ring in Tyler and 2 White men arrested for their alleged involvement in separate methamphetamine manufacturing operations. The black defendants got harsh results: one defendant who had prior felonies received life in prison from a Wilco jury. The offers from John Bradley's DA office weren't better either: 50 years in prison for a 57 year old man, 5 years for a first time offender who sold .79 grams (less than a paper clip), and 15 months in state jail for another first timer for selling .12 grams (!!!!!).

Surprisingly (that's my tongue in my cheek there), the white defendants were made good deals. One defendant was charged with possessing with intent at least 400 grams of methamphetamine, had numerous firearms in his trailer at the time of arrest, and had what detectives called several apparently stolen trailers on his property. In an unrelated arrest, two other men were charged with possession of between 200-400 grams and were cooking when the cops showed up. Despite the fact that two of these guys had long rap sheets, they were offered 1deferred adjudication (a kind of pretrial probation) with 180 days in jail as a condition of the probation. (One defendant got 7 years in prison.)

I'll leave it to you to draw your own conclusions about why these cases turned out differently, but would Dan Moody still be proud? Would he do that, John Bradley?

Innocent after all these years? Well, time to lawyer up

2007-11-28T08:10:00.001-06:00

If you were falsely convicted of a crime and convicted and the indignation of false imprisonment, having years of year life taken away, losing your family, your job, and everything else wasn't enough, now you have to worry about the prosecutors and investigators who put you in prison suing you for libel and slander.

Dennis Fritz and his daughter

No, seriously. An Oklahoma prosecutor and former DA investigator have sued both author John Grisham and Dennis Fritz, one of the men recently exonerated for the 1982 murder of Debbie Sue Carter. The parties claim that the defendants engaged in a civil conspiracy "to commit libel, publicity placing a person in false light and intentional infliction of emotion distress."

You know, you put someone in prison for 11 years based on shoddy work and I think you waive any right to complain about the names they call you when they get out. Pussies.

Miles v. State of Texas: Does the Court of Criminal Appeals Want to Bring Vigilantes Back?

2007-11-26T13:25:00.000-06:00

To those not familiar with Texas law, we actually have some criminal procedure provisions that offer broader protections to citizens accused of crimes than the Federal Constitution. Take, for example, searches and seizures conducted against people. The Fourth Amendment's protections have only been extended to protect against action taken by the government or its agents. Article 38.23, on the other hand, specifically provides that: "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." (emphasis added)

Well, so what's the big deal? With some very limited exceptions, this meant that if a private citizen decides to act illegally and break the law, any evidence they obtained and turned over to the police would be inadmissible in a criminal prosecution against the accused. Think of it as a disincentive for citizens that discourages them from taking the law into their own hands (and for law enforcement for encouraging them to do so to subvert the Fourth Amendment) by punishing them in the same fashion as police officers who ignore the Constitution.

That is, until Miles v. State. A group of tow trucks went in hot pursuit of a hit-and-run (and likely drunk) driver through the streets of Houston, violating numerous traffic laws, and eventually blocking the driver in to wait for cops. The driver was later convicted of DWI and unlawfully carrying a weapon. To trap the suspect, the tow truck drivers followed him the wrong way on down busy city streets in order to prevent him "from harming himself or anyone else." The court turned the above rule on it's head, holding that "if an officer may search or seize someone under the particular circumstances, then the private citizen's equivalent conduct does not independently invoke the Texas exclusionary rule, and the evidence obtained by either the officer or the private person may be admissible."

A concurring opinion written by Judge Price pointed out the problematic reasoning of the CCA, even though Judge Price concluded that the defendant had no standing to invoke 38.23 since he suffered no harm (other than the conviction). He rightly points out that the majority twists and turns the plain language of 38.23 to the point of flatly ignoring it in order to reach it's conclusion. Price writes:

"Even assuming that the legislative intent was to prohibit any evidence-gathering conduct on the part of private citizens that would be prohibited to police officers, it does not necessarily follow that the legislature also intended to implement the converse proposition: that any evidence-gathering police conduct that we would regard as lawful under the circumstances we would also permit a private citizen to engage in. Simply stating the converse proposition does not establish that it is true. Ours is not the federal exclusionary rule; the core rationale of Article 38.23 is not just to deter police misconduct, but to deter any and all misconduct perpetrated in the name of gathering evidence. Police officers and private citizens are not "equivalent" in the kinds of conduct they can lawfully engage in; there are some kinds of otherwise-unlawful behavior that a police officer may undertake in the lawful execution of his official duties that are simply not available to private citizens. If it is objectively reasonable for a police officer to break the traffic laws in hot pursuit of a dangerous suspect, then should it always be deemed equivalently reasonable, and hence permissible, for a private citizen to do the same? Did the Legislature really mean to encourage that? Does the Court?"

(Allow me to add: "Since we're already engaged in the mental gymnastics that the majority must use to reach this conclusion, do we give vigilantes qualified immunity to protect them from any tort claims that may arise from their conduct?")

The State should not encourage people to take the law into their own hands. This should be readily apparent, but some folks just can't seem to figure it out. (This is not to suggest that spraying cars with water is the equivalent a racially-based lynching. But I also don't think it's too much of a stretch to see a fight or a shooting come out of such an incident.)

Westlake High School: Where Teachers Wear Bullseyes

2007-11-26T11:59:00.000-06:00

Eanes Independent School District is home to some of the best "public" schools in the country. Every year, it ranks in the top percentile for the State of Texas and compares quite favorably with private schools. Last week, it came to light that one of my old science teachers at Westlake, Dan Harper, was in danger of having his teaching certification yanked because he left for a job at Akins High School without giving at least 45 days notice. (At least he has the Editorial Board of the local paper on his side.) The story is not as simple as a teacher being poached.

In my experience, all that money means an above average percentage of people with too much time on their hands and with vastly over-inflated opinions of just how special their kids are. One of the best teachers I ever had at Eanes was subjected to the process her student's mother trying to get her fired (She was also one of the few black teachers in the District). Why? Because her daughter: a) had too much homework; and b) wasn't doing very well in the advanced courses. Predictably, the District was bowing to her wishes of punishing the teacher until 50 former students showed up at the hearing and drowned out the whining with a dose of reality. She survived the incident but eventually quit the District, frustrated with all the additional administrative BS thrown her way. (As an aside, thanks for "Macbeth" and "The Girl Who Owned a City".) This is just a random example of how the District treats its teachers (I can think of three other teachers offhand who were similarly forced out).

Once the story hit the paper and there was a huge public outpouring of support for Dan, the District predictably backtracked and claimed that they didn't want Harper to lose his license. Unfortunately, the matter is now in the hands of the State Board of Educator Certification. In order to protect itself, the District had to report the violation to the State Board. A lot of the early uproar centered on why the District would do such a thing, but I think EISD has a pretty good argument that Dan violated the Texas Education Code:

§ 21.160. RESIGNATION UNDER CONTINUING CONTRACT. (a) A teacher employed under a continuing contract may relinquish the position and leave the employment of the district at the end of a school year without penalty by filing with the board of trustees or its designee a written resignation not later than the 45th day before the first day of instruction of the following school year. A written resignation mailed by prepaid certified or registered mail to the president of the board of trustees or the board's designee at the post office address of the district is considered filed at time of mailing.
(b) A teacher employed under a continuing contract may resign, with the consent of the board of trustees or the board's designee, at any other time.
(c) On written complaint by the employing district, the State Board for Educator Certification may impose sanctions against a teacher who is employed under a continuing contract that
obligates the district to employ the person for the following school year and who:
(1) resigns;
(2) fails without good cause to comply with Subsection (a) or (b); and
(3) fails to perform the contract.

Nevertheless, I think the equities of his situation should prevent his license from being suspended in lieu of some sort of written reprimand attached to his certification. If you had Mr. Harper as a teacher and want to help him out, please write in his defense to:

Texas Education Agency
Educator Certification & Standards
1701 North Congress Ave
WBT 5-100
Austin, TX 78701-1494

I'd also encourage as many people as possible to go to the next School Board meeting to voice your support for Harper. I will point out however, that the matter is out of their hands at this point (and that they probably have to report incidents like this just to protect themselves). But it might be a good time to ask them why nothing was done about Coach Ron Schroeder when he retired in 2003. I presume that the answer will be that he retired, but when he "unretired" last year, presumably he was subject to some retroactive discipline for walking out on his students (yes, coaches teach classes) and his players with less notice than Harper gave. It might be good to give some support anyway and rattle the cage of the Board, the Superintendent, and WHS's principal about how to treat their employees.

A little uproar from time to time is a good thing, especially when it's right-minded.

Fricking Hilarious

2007-11-26T11:23:00.000-06:00

Entire Precinct Made Up Of Loose Cannons

LOS ANGELES—"McCluskey's a good man, but he needs to clean up his act," Chief William J. Bratton said. "Same goes for Conroy, Peterman, Tobias, and Black."

Getting the Answers Before the Test

2007-11-19T15:37:00.000-06:00

While YDMFWS is a huge fan of the TV show Cheaters (if you never have seen the show, please, please do a YouTube search post haste), but that doesn't mean we are big fans of little "c" cheaters. So we weren't to happy when Austin Police Chief Art Acevedo announced that all officers involved in shootings of civilians would be allowed to view their videotapes before making statements to investigators.

Regardless of the subject matter, when an investigator is trying to get information from a witness, it is important to speak to them as soon as possible after the incident, before the witness's memory becomes tainted by other witnesses, third parties that are trying to influence the outcome, or anything else that confuses the issue of what exactly the witness, saw, heard, smelled, or generally perceived. Naturally, this sentiment was reflected in subsequent communications to Acevedo by current and former investigators.

You simply cannot give people evidence, then turn around and expect them to give an independent recollection of what happened. Let's take a simple example: an officer tells an investigator that he thought the suspect had a weapon in his hand when the suspect exited a vehicle. There are three general possibilities here:

- If the video reflects that fact, then clearly investigators can more easily conclude that the officer was telling the truth because it is verifiable on video

- If the video reflects an object that looks similar to a gun, then the same result is likely. It is easier for the investigator to conclude that the officer made a mistake and that a reasonable officer in that situation would have discharged his or her weapon.

- If the video shows that the witness is clearly not holding anything, then we have a different situation. The cop gets to watch the tape, let the facts play out that are on the tape, then craft a story that reflects what's on the video. Clearly, there are limits to how far someone can go to this, but a reasonably savvy person can at least eliminate a story that does not match up with the video.

If the facts surrounding a civilian shooting suggest that a crime has occurred, this procedure could very well infect any subsequent investigation into the shooter's criminal or civil liability. The procedure in effect legalizes the Blue Shield and gives cops a chance to protect their own. Civilian suspects are not allowed to view evidence of their suspected crimes before offering statements, and there's no good reason cops should automatically be afforded this opportunity.

Hell, it's an idea that doesn't make any sense when it comes to athletes, so how does it make any sense when we're talking about cops shooting civilians?

Bonds' Big-Ass Head, Big-Ass Feet, & Big-Ass Mouth Finally Catch Up With Him

2007-11-17T11:53:00.001-06:00

Barry Bonds was finally indicted this week by a federal grand jury on four counts of perjury and one count of obstruction of justice. If convicted on all counts, he faces a maximum of 30 years in prison.

Now I know next to nothing about actual Federal practice, but from what little I have heard from other lawyers, it is very difficult for the criminally accused to win acquittals or dismissals, especially compared to State court. The prosecutors usually are faced with people who violated both Federal and State laws so they get to defendant shop and have pretty overwhelming evidence by the time they indict (they get some sort of conviction in 99% of their indictments, according to the Pittsburgh Post Gazette). If you're convicted, the judges are hamstrung by the Federal Sentencing Guidelines (even though these are supposedly only advisory now), so there's little ground gained by arguing your client's equities at sentencing. There's no parole, so you get sentenced to 30 years, you're doing about 85-90% of that time (there is extra time for good behavior).

In a semi-related note, this new Barry news reminded me of this other great article that came out before he broke Aaron's home run record this year. The author argues quite convincingly that the brace that Bonds has worn on his arm for years (and I should add, that several other MLB players wear) has given him an exceedingly unfair advantage versus non-braced players.

Good riddance and good luck, Big Head.

Shakespeare was wrong

2007-11-13T10:12:00.000-06:00

For all the scariness coming out of Pakistan in the last few days, some of the most positive things have been the anti-Musharraf protests led by lawyers. Yes, that's right. Lawyers. Lawyers putting their necks (literally in this case) on the line for the principle of the rule of law.

In solidarity with the lawyers and the Pakistani people, please consider wearing black suits with white shirts tomorrow, November 14th, to protest our "number one Muslim ally" General Pervez Musharraf.

Your Pennsylvania Tax $$$ At Work

2007-11-07T14:12:00.000-06:00

If I'm a Pennyslvania citizen, I'm wondering where my share of the $4,157 is.

Do I really want someone who was swayed by this commercial giving me any sort of medical attention? ("Well, I was going to go to cosmetology school, but Rapping G-Hog did do a good Cabbage Patch....")

Random Football Observations

2007-11-05T08:17:00.000-06:00

- The best thing to come out of the Eagles 38-17 loss at home to the Cowboys was my friend Dan's query as to "[h]ow it's possible to stick 89 pills up your ass." One person who can answer that question is Garrett Reid, who was ratted out by his cell mate in Montgomery County jail after being sent up for 2 years last week. That's right, after being convicted of heroin-induced DWI and spending time in jail for violating terms of your release by doing more drugs, you decide to jam a bunch of pills into your butt and walk into jail?

- Also on the Iggles front, the latest loss has strengthened my resolve. The Missus saw the score at one point and asked if this meant I was going to be in a bad mood. Well, obviously. But it won't mean that I'm going to abandon the team. In fact, I'm going to sign a notarized statement at the office today that I will maintain my fanship regardless of the Eagles' continued craptacular performance. I will scan and post this for future reference. (Hell, I might even take it as a good sign if I were still in Philly. After all, I would be that much closer to season tickets.)

- Patriots v. Colts was good, but not quite the epic battle most expected (or the 60 point shootout I predicted). Still, the better team won and hopefully we will get to see the folks from the '72 Dolphins finally get their comeuppance. If they do go 19-0, the Patriots will at least have the benefit of being able to say they played at least four good teams in the regular season (Dallas, Indy, Pittsburgh, NY Giants), something that, for all the bluster about being undefeated, is a hard argument for the '72 Dolphins to make.

- What was up with Indianapolis' continued use of fake crowd noise yesterday? The curtain was pulled back again at the start of the 4th with a completed pass to Randy Moss. The audio of the crowd noise suddenly started to skip, strangely like my CD player trying to play my scratched up Spin Doctors CD (Crap. Did I just say that or think that?) Well, I'm no audio engineer, but it wasn't a CD skip, it was the microphones picking up the output of the speakers (or something like that). Indy denied doing this in 2005 but were threatened with the forfeiture of draft picks, etc. if it happened again. Does Goodell make this defeat a double whammy?

Northeast Penn, Represent , Represent, -sent!!!

2007-10-29T12:55:00.000-05:00

Owing to the success of the still-funny NBC series, The Office, Scranton, Pennsylvania is enjoying a boom in tourism related to the show. (In what I think is a move that should have been made years ago, NBC is offering all of its original programming as streaming media online. Popular shows have 2-3 commercials every 10 minutes or so, but according to the Missus, crappy ones, like Las Vegas, only have one commercial at every break.)

Now, let me say that I have never actually "visited" Scranton. I did drive through in 2002 on the way to skiing in the Poconos. It did not appear to be a particularly nice place to visit (one mountain was covered with what looked like oil/gas wells) and my friends from the area confirm that most of the traffic to the town is headed one way in the wrong direction. So it's good to see the town's government being smart enough to embrace whatever bones get thrown their direction by doing stuff like putting up a Dunder Mifflin banner at City Hall and recognizing a fake company on the Chamber of Commerce web site. This is in contrast to how the nation of Kazakhstan reacted during the buildup to the release of the Borat movie. They held press conferences denouncing Borat, pulled Borat's .kz web site, and e ven decided they needed to run several full page ads in the New York Times about the reasons why Kazakhstan was a great progressive place to do business (Reason #327: Age of consent has been raised to 8 years old).

Remember folks: any publicity is good publicity.

I bet Judge Keller got a chuckle out of this.

2007-10-26T17:24:00.000-05:00

The Onion does judicial incompetence and intellectual chicken shittery.

More Errors & More Tragicomedy

2007-10-23T17:10:00.001-05:00

To be filed, I suppose, under "If you're not angry yet, then you haven't been paying attention".....

Judge Sharon Keller, who never met a death penalty appeal she didn't want to ignore, has decided to stop taking calls about her crackpot decision to shut it down at 5 p.m. and let the folks down in Huntsville "get 'er done". If you are an elected official, you need to face the heat, Judge. Don't hide behind your robes. Come clean and tell us the truth: you just didn't give a crap. You knew what the ultimate result would be so you just took it upon yourself to stop the appeals process and save the taxpayers some money. (What, ho? Judicial activism? Not by a Republican judge!!!!)

(Note to the Texas Commission on Judicial Conduct: when former briefing attorneys for the Court of Criminal Appeals are calling out a sitting Presiding Judge for what amounts to chicken-shittery, it might be time for some appropriate punishment. In the unlikely event of a sanction with balls, I'm sure Mrs. Keller will be allowed to make full use of her appellate rights.)

I think I just threw up in my mouth

2007-10-17T19:50:00.000-05:00

Joe Francis, the model American who created and owns Girls Gone Wild, has apparently listened to his advisers and has created a PR web site entitled "Meet Joe Francis" (trust me, you'll throw up too when you see the classy soft filter image of Joe laughing and looking off-camera). I prefer this shot:
Earlier this year, Mr. Francis was thrown into jail for contempt by the judge overseeing a civil suit against him in Panama City, Florida (and he also had a tax evasion charge in Nevada). The charges were dismissed last week and I guess the fact that the ad was running in the Destin paper was an attempt by Mr. Francis to rehabilitate his "image" to the good folks of Florida's Panhandle.

You know, some of these women may have actually consented to waiving their rights to images and videos taken of them in night clubs. But is Girls Gone Wild really without blame? I mean, as near I can tell, their operation relies on women who are either drunk, intoxicated, or buzzed (or in environments where the majority of the people are) get them to sign waivers (often while crowd members are chanting for them to take it off) and film their breasts or them making out or having sex with other wild girls (depending on how drunk they are). They're not going into Starbucks in Anchorage or the Philharmonic in Boston or a Chili's in Dallas and asking women to take their tops off when they're in full control of their rational or even their emotional minds.. They're going to Spring Break in Daytona or Destin or South Padre or Panama City and buying drinks for folks, then asking them to sign something, then filming their titties. It's exploitation at it's worse, as it's not like these girls receive anything approaching "fair"compensation. They get a t-shirt or a hat for their work and Francis makes millions. Maybe the next law suit needs to focus on the unequal bargaining power of the parties and pursue some sort of contract of adhesion theory.

And what this site is really about, is grabbing the attention of all the bar and club owners in Destin and Panama City and saying "Look. I promise you will not be sued if we film at your establishment." (So I guess it's "Titties, Ho!" for Spring Break 2008.)

Anywho, the site is just sellout garbage and I have to think it made the designers/programmers sick to their stomachs. But I bet they could afford a lot of Pepto.

The Texas Court of Criminal Appeals: A Comedy of (Harmful) Errors

2007-10-17T14:43:00.001-05:00

The news and blog community has been abuzz the past few days with the story about how Presiding Judge Sharon Keller made sure her staff got to go home at 5 p.m. on the button, preventing a last-minute appeal from be filed in the case of Michael Richard. As a result, his execution went ahead as scheduled. Editorials from across the state (and the world) have lambasted her for allowing the clerk staff to go home at 5 p.m. while Richard's defense lawyers were trying to overcome a computer crash and submit his appeal.

Before we talk about how ridiculous this is, let's set a few things straight:

- The appeal was based on a recent grant of certiorari by the SCOTUS on the issue of whether the lethal injection cocktail used in Kentucky (and in Texas) constituted a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Basically, the Kentucky defendant argues that cocktail very often results in an agonizing death for the folks it's administered to. (The fiancee also likes to point out that the same cocktail has been banned from use as a euthanizing agent for animals for the same reason.) Some people may say, "Hey, great! Fuck these people. They killed and they should suffer." But that's not the way things operate in the U.S. & A. The Eighth Amendment acts as a restraint for this impulse. It requires that if we are going to kill people we must do it in a "civilized" way. Apparently, that means that death by a firing squad, the gas chamber, the electric chair, hanging, or some other form of lethal injection is OK.

- There is a legitimate question about what Richard's lawyers did in this case. Keller has said she had no idea that the delay was due to some technical glitch, and it is unclear if that information would have resulted in an extension being granted. I have also learned that since a lot of death penalty litigation is essentially delaying the process for as long as possible (especially for folks whose cases might actually merit capital punishment), that the lawyers waited to the last minute to file the brief. That's fine, but that doesn't mean you should wait to the last minute to write the brief. That shit needs to be sitting in the fax machine ready to transmit at 4:59 or whatever to insure that it gets filed on time. Furthermore, why not contact Cheryl Johnson, one of the other judges who was waiting on the appeal?

(This is not to trash capital appeals attorneys. You guys have one of the world's toughest jobs which basically requires you to defend the indefensible. But everyone still has to do their jobs, and it doesn't seem to me that every i was dotted and t was crossed here.)

All that being said, Sharon Keller deserves a swift kick to the rear for this gem (and rightly deserves the criticism leveled at her at SharonKiller.com). If you are a society that is going to show how valuable life is by having the government kill those who take it(?????), you have to absolutely be sure that you get the right guys (and Texas alone has shown it has a huge problem doing that) and that you afford every opportunity to make sure that you follow the rules. Administrative convenience is not a good justification for a failure to consider an appeal. You want to kill people? Then that clerk's office needs to be ready to accept appeals for longer hours on the days before executions. And the judges need to be available. That's why you get paid so much money; occasionally you have to work late hours.

(If you are interested, you can sign a copy of the complaint that will be forwarded to the State Commission on Judicial Conduct here. I certainly encourage everyone who believes in the principals of due process to do so. Democracy in action, y'all.)

Flag Wars & Vigilantism

2007-10-15T14:20:00.000-05:00

By now, I'm sure almost everyone has seen the story of this Vietnam Veteran in Reno, Nevada. Basically, Mr. Jim Broussard noticed a Mexican flag being flown above and on the same flagpole as Old Glory, so he called the news station, waited for the camera crew, went on to private property, pulled out a 6-inch knife, cut the American flag down, brandished the knife in the presence of the owner and said, while holding up the knife in the presence of the bar owner/manager (among other things) "If they want to fight us, then they need to be men, and they need to come and fight us. But I want somebody to fight me for this flag. They're not going to get it back." See the video here. Some good comments, too (mine excluded, of course :) )

There has been a bunch of bs flying around on this, and I think it behooves us to understand a few things.

Issue 1: Legality of the Flag Owner's Display
It is not an enforceable crime to fly the flag in this manner. Several people have pointed out that the US Code prohibits the display of another nation's flag above the American flag on the same pole (along with many other minutia about it's display and treatment). However, the provisions of Title 4 USC 1 et. seq. specify no penalty for a failure to properly display the flag. In that sense, it may be a federal crime, but it's impossible to enforce because there's no penalty. Nevada criminalizes the desecration of the United States' flag ("Any person who, in any manner, for exhibition or display, puts or causes to be placed any inscription, design, device, symbol, portrait, name, advertisement, words, character, marks or notice, or sets or places any goods, wares and merchandise whatever upon any flag or ensign of the United States, or state flag of this State, or ensign, evidently purporting to be either of the flags or ensign, or who in any manner appends, annexes, or affixes to any such flag or ensign any inscription, design, device, symbol, portrait, name, advertisement, words, marks, notice or token whatever, or who displays or exhibits or causes to be displayed or exhibited any flag or ensign, evidently purporting to be either of the flags, upon which shall in any manner be put, attached, annexed or affixed any inscription, design, device, symbol, portrait, name, advertisement, words, marks, notice or token whatever, or who publicly or willfully mutilates, tramples upon, or who tears down or willfully and maliciously removes while owned by others, or defames, slanders, or speaks evilly or in a contemptuous manner of or otherwise defaces or defiles any of the flags, or ensign, which are public or private property, shall be deemed guilty of a misdemeanor."), but it doesn't appear to penalize flying the flag the way the bar owner allegedly did.

Even if the owner of the flag was guilty of violating either Federal or Nevada law, there's small problem: it would be UnConstitutional to penalize anyone for doing so. You see, in 1989 the United States Supreme Court decided that the First Amendment prohibited criminalizing the burning of the American flag, after a man was arrested at the Republican National Convention in Dallas in 1984. (You can check out the oral arguments made in this case here. Kewl.)

Writing for the majority in Texas v. Johnson, Justice Brennan reasoned that "the restriction on Johnson's political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. ... The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the government may not permit designated symbols to be used to communicate a limited set of messages." (U.S. v. Eichman extended this to Congressional attempts to criminalize flag burning.)

If the government cannot restrict you from burning the American flag, then it cannot rightly punish people for improperly displaying it. Therefore, even though the law is still on the books in Nevada (and most states), it cannot be enforced because it is Constitutionally defect. Therefore, the bar owner is guilty, if at all, of an unenforceable crime.

Issue 2: Legality of Mr. Broussard's Actions
The elephant in the room for the folks that bent out of shape about the improper flag-flying is what about what Mr. Broussard did. I am not license to practice in Nevada, but the State's online code reveals that Mr. Broussard could be charged with the following crimes:

- Criminal Trespass (Nev. Rev. Stat. 207.200: “any person who, under circumstances not amounting to a burglary … goes upon the land or into any building of another with intent to vex or annoy the owner or occupant thereof, or to commit any unlawful act.”)

- Assault (Nev. Rev. Stat. 200.471: “Assault means intentionally placing another person in reasonable apprehension of immediate bodily harm.”)

- Theft (Nev. Rev. Stat. 205.0832: “a person commits theft if, without lawful authority, he knowingly … [c]ontrols any property of another person with the intent to deprive that person of the property.”)

- Drawing a Deadly Weapon in a Threatening Manner (Nev. Rev. Stat. 202.320: “a person having, carrying or procuring from another person any dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon, who, in the presence of two or more persons, draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor.”)

- Armed Robbery (Nev. Rev. Stat. 200.380: “Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property, or the person or property of a member of his family, or of anyone in his company at the time of the robbery. A taking is by means of force or fear if force or fear is used to: (a) Obtain or retain possession of the property; or (b) Prevent or overcome resistance to the taking. … The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property.”)

- Burglary (Nev. Rev. Stat. 205.060: “A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary.”)

Those last two are felonies and carry a lot of prison time. They are no joke, but most of the folks that are so caught up with the "let's enforce the law" line, seem only concerned about that in as far as the immigration law is concerned. Moreover, nowhere has it been reported (other than through sheer assumption) that the folks who owned the bar/flag are undocumented aliens. Reading the web chatter reveals that everyone who hates what the bar owner did has already jumped to that conclusion. Whether or not the bar owner is/isn't illegal is irrelevant in my mind. More importantly, the First Amendment draws no distinction between citizens and non-citizens in the First Amendment. (Check the language here.)

Bottom line: the whiners here are mad because these uppity Mexicans had the gall to disrespect America on our home court. Too bad, so sad. You don't have to like what I say or what I think, but part of living in America is not being able to silence those folks who you don't like. Our forefathers thought that was so important, they listed it first. Get over it. You don't like the fact that not everyone is going to line up and salute the flag? Move to a compound in Idaho. The rest of us can sigh, roll our eyes, or hey, use your right to free speech to show how ridiculous the opposing point of view is.

Friends with Salad ..... Secrets

2007-10-11T13:56:00.000-05:00

- Last Monday, I found myself rooting for the Cowboys' Nick Folk to make a last-second 52-yard kick in their game against the Buffalo Bills. He made it, propelling my fantasy team to a 4-1 record. They'll sniff me out when I go back to South Philly for sure. I feel so dirty.

- I put mayonnaise on my cheesesteak. For the record, it is not offensive to put ketchup on there, so I don't think that merits any particular confession. (Although the picture above is a Pat's Steak, let me just say for the record that my preference is for Geno's. But since Joey Vento, owner of Geno's, is a Confederate-Flag-Loving, anti-Mexican bastard, he gets no picture above. He does get his pic from when Rudy Giuliani came to town to pander to the racist vote.

And if you take away the Geno's hot sauce, it's Pat's in a runaway. Especially because their steaks aren't served with a side of "No Mexicans Need Apply".)

- Your host from YDMFWS will be portraying Carl Brutananadilewski this Skankoween.

Frickin' awesome!!!!!

The Anatomy of a Traffic Stop, The Attitude Test & Quick-Draw Officers

2007-10-03T10:53:00.000-05:00

You may have heard of the attitude test that police officers use to determine whether or not they are going to arrest someone, ticket them, issue a warning, or simply speak to a person. There are no hard and fast rules to the test, but it basically works like this: be nice, be respectful, say "yes, sir" and "no, sir" where appropriate, and you will likely walk away with minimal damage. This obviously doesn't work out very well when you've got a dead body in your trunk, but hopefully, for most of you generally law-abiding citizens out there, this shouldn't be a problem.

God help you if you get stopped for doing 70 on Mopac, though. This week, the APD's new chief issued some bold statements about the kind of cop attitude problems than many citizens are more than familiar with. Chief Acevedo pointed to the video of this encounter with the la w as an example of what not to do. Basically, the officer requests the driver's driver's license and proof of insurance 3 times, orders him out of the car when he protests, and then hits him with the Taser once he's out of the car. As the officer waits for backup, the motorist lays on the ground and tells him (I'm sure Cpl. O'Connor would characterize it in a menacing tone): "I'm sorry you have to work on Thanksgiving."

Perhaps as part of Acevedo's attempts to be more transparent (especially when his white officers are out there Tasering black folks at the drop of a hat), the transcript of O'Connor's interview with Internal Affairs has also been made available. The investigators seem to be a little suspicious of some of O'Connor's justifications (but in the end found no wrongdoing on his part). Some random observations:
- The call O'Connor was on his way to was a 911 hangup. In the Family Violence court, this is a big sign of a serious emergency (someone could be interfering with another's attempt to call 911), but 5 mph over the limit on Mopac (where drivers frequently go 10-15 over) takes precedence?
- O'Connor had no backup (or at least didn't think he did). This goes in his favor, I will admit, but I'm not sure that this rises to the level of justifying what decisions he made. APD needs to staff better on holidays, even taking into account that cops, like other folks, might be more likely to call in sick on those days (assuming they can; I have no idea if this practice is prohibited).
- O'Connor's training lead him to believe that a propped up Texas plate in the back window was a sign of a stolen car. He could have run the plate while behind the car or after seeing it on approaching the driver's side window, but the video tape shows he did not. I would think if this was his suspicion, he would have done it sooner in the stop, perhaps before making contact. That information could support (or not support) the attitude he put on when making contact with the driver.
- The officer told Internal Affairs that he didn't want to be standing there on the shoulder. But he seemed OK with having the suspect laying there.
- The officer waffles when asked if he acts like this on the majority of his traffic stops (what he characterized as being "very direct"). He said "I don't know". You don't know how you act, or you don't want to put on the record that you're a jerk on every stop? You mean with all your specialized training and years of experience as a police officer you can't recall how you act when you conduct one of your hundreds or thousands of traffic stops? Really?
- "I thought he'd pushed the door back towards me." Nope, it's clear from the video that you opened the door and got him out. The video does not reflect your version, sir. It shows you pushing the door and the door hitting him, Cpl. O'Connor (See p. 13 of transcript). The driver reacts and you Tase him.
- Throughout the interview, there's a lot of military terminology thrown around when talking about the cops ("your troops" referring the officers under Cpl. O'Connor's command). This makes me a bit uncomfortable. They're not fighting a war on citizens out here; they're supposed to protect citizens. Encouraging the mentality that there's some sort of war on the public on doesn't sit well with me. Probably because we are talking about police brutality here.

Even cooler, we have access to Corporal O'Connor's written objection to his Temporary Suspension ordered after the investigation. Something tells me someone with a law degree besides Cpl. O'Connor (perhaps at the Austin Police Association) helped craft this response, as it cites to Draper v. Reynolds, a Texas Court of Appeals case that governs the justified use of a Taser on a motorist. The officer points out the actions of the motorist that he suggests justified the use of the Taser (driving a vehicle without visible plates, passing a marked police vehicle over the speed limit, not leaving Mopac when pulled over, refusing to comply with repeated requests for DL/Insurance (that's 3x for the record), acting "verbally aggressive and making movements towards [O'Connor] that led [him] to reasonably believe that [his] safety was in danger"). This is the crown jewel though: "Mr. Snelling's actions were clearly not those of a law abiding citizen. Instead, these actions had the markings of a possible fugitive or felon."I think anyone watching the video would probably reach the opposite conclusion. To wit:
- If the officer was so concerned about his safety, why did he stand closely to traffic while he waited for backup?
-Why didn't he approach the car from the passenger side?
- What was the speed of the other traffic on Mopac at the time? Was Snelling's car traveling significantly faster than the rest of traffic?
- Where was the nearest exit on Mopac? (Hint: not for another 1.5 miles at the exit for the Southwest Parkway. Do you honestly believe Cpl. O'Connor would have testified that the car continuing for another mile or so on Mopac without noting that this was suspicious??? This is a common tactic of officers on the stand. They testify in a way that whatever the suspect would have done in a certain situation would have been suspicious or supports the suspicion of criminal activity.)
- What about Snelling's behavior was "aggressive and agitated"? The officer claims that Snelling moved towards him as if he was going to push him into traffic; my viewing of the video does not support that conclusion. Instead, the officer seems to be the aggressive and agitated (by his own admission) one. He draws his Taser 15-20 seconds into the stop and opens the car door to pull the driver into what he has already said was an unsafe position. If it was so unsafe, why the hell would you Taser him 2 feet from oncoming traffic????
- Whether or not the officer's belief was reasonable is not a matter for him to attest to. It's a conclusion based on the facts, not a fact itself. Clearly, his own Chief doesn't think it was reasonable, neither did the interim Chief, Cathy Ellison, neither do the police who are now apologizing for another officer's use of the Taser.
- O'Connor objects that because display of the Taser is not addressed in the Department's Use of Force policy, his display of the Taser should not be considered. Well, that's fine in theory, but it seems like folks don't think it was appropriate even if there was no written policy, and that should be considered in the totality of the circumstances.
- O'Connor insists that we should deal with realities and not hypotheticals, but all of his suppositions about what could have happened are just that. Hypotheticals!!! Snelling was not a fugitive or felon, and it's not clear that he even has a record. All your justifications for abusing a traffic violation suspect are just possibilities. The reality is that there are plenty of ways that people who are not cops can see would have been better ways to handle this situation instead of making it into a national spectacle.
- The officer also justified his behavior with reference to the fact that he had not eaten since the morning (5 or 6 hours before) and not eating causes him to become "a little edgy." So he was grumpy and hungry, and that's why he's yanking folks out of cars for a ridiculously common speeding violation and Tasering them??? I've got to believe that if I assaulted a cop and offered this as my defense, every jury from El Paso to Beaumont would max me out in a heartbeat.

In my mind the proof is in the pudding, not whether the Chief thinks cadets and officers are "responding" well to the video. Are we going to see fewer officers with chips on their shoulders, with short tempers, with the obvious intent at escalating the tension in roadside encounters? It comes down to bad judgment, something this officer seems to have in spades. APD can replace leadership, it can write new policies, it can issue PR statements that show how it's improving relationships with minority communities, it can have officers apologize for other officers' bad behavior, but at the end of the day, you have to do something about officers who just don't get it. APD and the City have to be willing to take the heat from the Police Union and remove guys like this who are just bullies with badges and guns and stop slapping them on the wrist with 3 day suspensions. There are plenty of good cops at APD; I work with them almost every day and am happy to know them on a semi-personal level. But there are too many jerks like O'Connor patrolling our streets.

Patriot Act Defeated? Constitution Triumphant?

2007-09-27T10:48:00.000-05:00

It's a slow week; the prosecutors are in Corpus Christi for their annual statewide conference. No doubt, the folks from Travis County will be mocked for being weak on crime and for not trying to get the death penalty on skateboarding, loitering, or illegal fortune telling. Stand strong, ladies and gents. (As an aside, I heard some interesting rumors at the courthouse on this subject. When the conference was held in South Padre, the local police stopped making DWI arrests while the prosecutors were in town. This is completely speculative and the product of massive innuendo, but markedly different from my experience at TCDLA's Criminal Trial College in Huntsville, during which 2 executions were carried out at the Walls Unit, 200 yards from our hotel.)

But even if it was a busy week, the fact that a federal judge in Oregon ruled that two provisions (relating to warrants for electronic and physical surveillance) of the USA Patriot Act are unconstitutional would be huge. In a nutshell, a Portland attorney (and Muslim convert) was investigated for an alleged connection to the 2004 Madrid train bombings, which later turned out to be based on a misread fingerprint. Under the Patriot Act revisions to the Foreign Intelligence Surveillance Act, the FBI was able to get warrants without probable cause to search this US citizen's office and home. Subsequently, Brandon Mayfield was arrested and imprisoned by The Feds for 2 weeks until the FBI finally admitted the fingerprint did not match. He eventually settled his suit against The FBI for $2 million, but retained the right to challenge the lawfulness of their searches and seizures against him.

Yesterday, Judge Ann Aiken said "This shall not stand." I recommend that you read it for yourself, but the real meat of the opinion starts at the bottom of page 28. Judge Aiken concludes with these powerful words: "[T]he constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances - a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment. ... In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The [Government] is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so. For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised."

This ruling seems likely to withstand 9th Circuit scrutiny, so we could be set up for a very interesting argument before the Supreme Court.

Convictions for 2005 Hazing Death

2007-09-26T16:47:00.000-05:00

Yesterday in Judge Earle's court, the three defendants charged with the Dec. 2005 death of Phanta Phoummarath entered their pleas. The Statesman has some pictures from the party that Phoummararth attended the night he died. It's a little creepy to look at them, seeing some one's last moments as well as people who had to stand up in court to account for what happened. (Also partly because I've done similar stupid shit.)

The defendants acted irresponsibly, stupidly, and tragically. Jack was 19 years old; that's old enough to vote and old enough to join the Army. I struggle with the fact that this doesn't seem to be the kind of behavior that we should be worried about when we try to curtail "hazing". I'm more concerned with people being force-fed liquor; not someone who by all accounts consciously chose to engage in this behavior of their own free will. Someone died, it's hard to make sense of that fact, and I think because there was irresponsible behavior by people who were at least nominally "in charge" of the deceased, we want to believe that they were responsible.

On the other side of the coin, I am struggling to understand why the defendants weren't charged with state jail felony level of hazing (Tex. Educ. Code 37.152(e)). Anyone out there care to explain it to me? There seemed to be enough interest in the County Attorney's Office (I saw the actual County Attorney and his First Assistant in the courthouse for the first time in my time here) and I bet they could get a conviction even with former fraternity/sorority members on a jury panel. I'm guessing it had something to do with the grand jury"not find[ing] that Phoummarath was required to drink alcohol as a condition of fraternity membership." In other words, the hazing did not cause death. My guess makes sense, but I would appreciate any help on figuring this one out.....

(Texas Education Code 37.153 also makes it a misdemeanor offense for an organization which encourages or condones hazing or if a member, officer, or pledge participates in hazing. I didn't witness the organizational plea on behalf of Lambda Phi Epsilon, so I'm not exactly clear on who has to appear to make that plea (CEO? Chairman of the Board of Directors? Legal Counsel?), but they were fined $5,000 by the court. For an organization with a lot of resources, this doesn't seem like too much, but I suppose it's designed to provide ammo for plaintiffs suing the same parties in the concurrent civil actions.)

Oh and by the way, Fuck You Mahmoud Ahmadinejad

2007-09-25T14:33:00.000-05:00

Allow me to step away from the criminal law for a second to issue a heartfelt middle finger to the President of Iran. Fuck you for thinking you were going to visit Ground Zero.

Fuck you for lying about how homosexuals are treated in Iran (and to the folks in the audience that think torture is funny).

Fuck you for lying about the Holocaust.

And fuck you for lying about trying to build a nuke.

The silver lining in this whole shit storm, I think, is the protester's sign outside Columbia that said: "We refuse to choose between Islamic fundamentalism and American imperialism."

Bingo.

Judge Sarokin Strikes Again: The Widening Divide Between Individual and Corporate Welfare

2007-09-24T14:13:00.000-05:00

I haven't been to Judge Sarokin's blog in a while. It doesn't look like he posts more than once a month, but he hits the ball hard when he takes a swing.

Last month, The Judge pointed out a disturbing trend in welfare laws: the "waiving" of the Fourth Amendment by individual welfare recipients and their forced submission to random "compliance" searches. Basically, the argument used by the States is that because these folks are on the dole, the Government should have a right to inspect their homes randomly and unannounced to make sure they are not committing welfare fraud. Shouldn't that mean, Judge Sarokin argues, that because defense contractors, oil companies, Big Tobacco, etc. all receive "corporate welfare" in some form (subsidies, tax breaks, contracts, etc.) that they should be subject to similar provisions? Does anyone generally think that The Government could get away with that one with the literally billions of dollars Big Business could spend on fighting these sorts of contract provisions?

"When the poverty line was established it was not meant to provide that those who fall below it surrender their constitutional rights." Touché.

Blogging and Defamation

2007-09-21T10:50:00.000-05:00

A very interesting case out of Paris, Texas this week: a Tennessee-based health care corporation has asked a federal judge to order an ISP to reveal the owner of a blog long critical of said corporation and its management of hospitals here in Texas. According to Essent, the author of The-Paris-site has defamed the company via it's postings and comments (as well as violating HIPAA by revealing confidential patient information), and they have asked the judge to reveal to them the name of "John Doe #1", the owner of the site. Let's not get side tracked; this case is not about whether or not an anonymous person can shamelessly defame a person online (and for everyone out there, a corporation is a person according to the U.S. Supreme Court). For the record, you can't commit such defamation.

(DISCLAIMER: I know next-to-nothing (past my cursory 1st Amendment law school class) about defamation and whether or not Texas/Federal defamation law allows for certain privileges or not or what law applies in this case.) The more interesting issue is: can a party to a suit reveal the identity to an otherwise anonymous party merely by filing the suit? Assume for a moment that the lawsuit is entirely frivolous and without merit. That Essent is furious about the fact that people on their payroll are talking shit about them online. Should they just be able to file a suit and have the court force the site's owner to identify themselves? I hope not. Hopefully, the judge in this kind of case would perform some sort of analysis as to whether the claim has merit first, through what is called a motion for summary judgment. What that means for non-lawyers, is has this plaintiff stated a claim that the law will recognize? If they have not, then the judge will dismiss the suit. That's arguably what should happen here, since there is a valid interest in protecting the right of an employee to anonymously criticize an employer, so long as he does so within the limits of the law. We don't want to encourage businesses or government to punish whistle-blowers, right?

The other protection that should shield the blogger here is the public figure rule. The First Amendment requires that for a successful defamation suit against a public figure, the plaintiff must show that the claims/statements made are false and that they were made/published with "actual malice" (statement published with either knowledge of falsity or in reckless disregard for the truth). There are two types of public figures: those who are "public figures for all purposes" and those who are public figures for limited purposes. For an individual to be considered a public figure in all situations, the person's name must be so familiar as to be a household word—for example, Paris Hilton. A limited-purpose public figure is one who voluntarily injects himself or herself into a public controversy and becomes a public figure for a limited range of issues. Presumably, the blogger's lawyer could show fairly easily that Essent is at least a limited-purpose public figure on the issue of the quality of it's services and management, and could prevail on the court to dismiss for the inability to prove actual malice.

What the case is really about, in my opinion, is not the defamation suit. It seems quite clear that Essent's real intent is to identify Frank Pasquale and the persons who have commented on his blog and fire them, regardless of whether they have, in fact, been defamed (thank you very much, at-will contracts). For that to happen, they should at least be required to jump the hurdle of showing that there is merit to their claim.

Baby's 1st Trial

2007-09-11T09:45:00.000-05:00

Unfortunately, Fisher-Price does not make any products for new attorneys, so I went into my first trial (as a lowly second chair) without too much of a safety net (well, aside from the other two attorneys) First, a little background. A very kindly county court judge got me involved with this client about a month ago. I helped bust the first jury panel which seemed like a big victory. The County Attorney will offer a good deal now, right? Well, maybe not when you're hero is on parole for Injury to a Child. He kind of has to fight. So we go to trial last week. I had visions of Atticus dancing in my head.

I'm not going to go through a play-by-play, but here are a few observations:

- We had a civilian witness allegedly witness bad driving by our client. I was asked to get a statement from him. In Texas (and I imagine, in most states), a witness in a criminal has no obligation to speak with a lawyer if he doesn't want to. This guy definitely didn't want to. I even made the possibly unethical (just kidding) proposition of buying him coffee when he got off of work at midnight so that we'd have something on paper going into the trial. Wouldn't even talk to me over the phone. Went into trial the next day and the State notifies us that the witness has a criminal history, but that it's been expunged. TCIC indicates that he had a probation transferred from another state. We have a very weak case, so impeaching the State's civilian witness with a prior conviction is pretty damn important (and all that we might have on him). The judge hears argument, and, being Johnny on the spot and sensing that my 1st chair doesn't feel comfortable with the legal arguments on this point, I jump right in. The witness committed a serious felony (burglary), it is not expunged because we have a record of it, even if the witness alleges it has been expunged all we have is his word, it's within 10 years, etc., etc., etc. I don't know if we were right or not, primarily because this case involved two states' overlapping expunction schemes, but I do have the sneaking suspicion that the witness was not entirely forthcoming about his criminal history.

- There is definitely something to the "one question too many"/"asking a question you don't know the answer to" rules. After the direct of the civilian eyewitness, I felt we needed to develop what kind of "jumping the curb" our client allegedly committed. It might have been better to leave that vague than to have the witness say our guy put two wheels in the grass and then the whole car in the grass later on.

- The civilian witness was way off on the description of the car and I think if we had enough ammo, we could have made him look real unsure of what he saw. Unfortunately, this was a misdemeanor appointment case and I was only brought on at the last minute, so we had photos of what the scene looked like or (as explained above) any statement by the civilian. Given the bad facts, we needed every little thing we could get our hands on. We didn't pound him on this and it went downhill from there.

- The cops arrested our guy without doing any sobriety tests and without turning in the in-car dash video. This was the key to our case (rush to judgment/not giving the jury evidence that they can render their own opinion on), but I felt like we let him wiggle too much. The 2 officers both claimed that when FSTs are not performed by a suspect, they do not turn in the videos. I know from having watched 5-10 total refusal tapes (no tests performed at all) that this is simply not true. If there are no tests, the police need to have evidence which confirms their observations for someone who wasn't present at the scene. The tapes can give very convincing evidence of someone who can't stand without swaying or who is unsure while walking or who sways by standing even if the person refuses to do any test. For whatever reason, we didn't get the officer to say this on the stand. The big closing should have been: "This officer could have turned the tape into evidence and let you, the jury, judge for yourself whether or not you believed client to be intoxicated. Instead, he made a decision not to. If you are going to convict someone for what basically amounts to an opinion crime, it should be the opinion of the jury based on evidence, not the opinion of an officer with a horse in the race, that should convict the accused." I think the message got a little clouded and came out "This cop is lying" which given the facts wasn't really merited (in my rookie opinion).

- There was a huge red herring for us on the evidence side of things, it was a close call, and I'm Tuesday Morning Quarterbacking here, but I think we may have lost our only chance of winning by fighting over these documents. The State had rather sloppily (and definitely in violation of federal law) subpoenaed our client's medical records from the hospital he was taken to. They contained some bad facts, but in my opinion, they weren't any worse than what was already in the record though the officers' testimony. They also contained a medical doctor's opinion which directly contradicted the officers' opinions on the client's behavior and physical condition. We pressed pretty hard on the fact that the document was inadmissible, and I think we forced the State to look at the records closely. I honestly believe that they came to the same conclusion we did and they decided not to try to admit them. Sometimes you just need to listen to your gut. Lesson learned.

- Finally, I got to sit next to our client throughout voir dire and the trial itself. I found this to be the best part of the experience. He thanked me personally on several occasions, even after he was found guilty. I think he could tell that I took the outcome of his case a little more personally than the other lawyers (at least outwardly) and I think given his situation (looking at several years in prison on a parole violation if convicted in this case) he was looking for someone to be honest with him about what was going to happen. We didn't think he would get maxxed out on this, but you never know what the BPPD is going to do, so it's still a little unnerving.

One down.

Forfeiture of Contraband and the Sticky Hand of the Law

2007-09-04T16:11:00.000-05:00

One thing many of our gun or knife toting clients don't like, is that in order to get some of their charges dismissed for unlawfully carrying weapons, the local County Attorney requires that the defendant forfeit the offending weapon or face a jury trial.

Despite the fact that we have provided proof that some of these illegal weapons are sold at unscrupulous dens of commerce like Academy, the State hasn't, to my knowledge, leaned any harder on the stores themselves to stop selling illegal knives (since we have two clients in one year charged with buying the exact same knife). I think it's pretty reasonable to rely on the fact that a product is sold in a reputable business as a legit defense, at least as far as the lay jury is concerned (we love juror nullification on YDMFWS). Nope, they want some community service or a disorderly conduct plea to make the case go away. Not that these are bad offers, but I think even the saltiest CA would agree that someone who buys a butterfly knife from the flea market is in a little different position than someone who buys a knife which has some element of centrifugal force involved in its operation from a well-known and well-respected chain store. I wish we could afford to take more of these cases to trial because I think most juries would take about 5 minutes to give us a two-word verdict with facts like those. Still, a bird in the hand...

In a similar vein, a Californian peeping tom has petitioned the court to order the police to return the 500 movies and 250 magazines police seized during the investigation against him. Before we judge this pervert too quickly, the seized stash was all legal. But he might run into a little bit of a crunch because the porno might be admissible to prove his desire to get sexual satisfaction by sneaking a peek through the window. The stronger argument, in my sanctimonious opinion, is that just because someone possesses pornography (or wants to be gratified sexually) in the privacy of their home, it does not follow that they are trying to achieve sexual gratification outside their home. I figure that will be a tougher sell than our knife argument....

On the other hand, if he has $10,000 plus to spend on porno, he could probably afford to have a jury trial. Maybe I need a CA bar license.

You Do Make Friends with adult swim DVDs

2007-09-03T17:50:00.000-05:00

Namely, with Aqua Teen Hunger Force: Movie Film For Theaters. Or ATHF:MFFT, as the kids call it.

Plus, if you buy it from WalMart.com you can subjugate the workers and purchase your Carl Halloween costume at the same time.

Legitimate Continuance - Get Well Soon

2007-08-28T17:16:00.000-05:00

According to our secretary, Officer Michael Rhone of the Austin Police Department was in Ft. Worth for his son's baseball game when he accidentally shot himself in the hand a few weeks back.

I don't expect too many opposed continuances while you're out. Just don't put up with too much bullshit from your comrades, Rhone.

Chickenhawk: n. (chĭk'ən-hôk') A person who favors military force or action to carry out a foreign policy but has never served in the military.

2007-08-27T16:26:00.000-05:00

Apparently, Time Magazine thinks that Rudy Giuliani's supposed strong point, foreign policy, ain't so strong after all.

Didn't even bother to show up for 9/11 Commission meetings? Ouch.

Criminal Friends in the News

2007-08-21T16:28:00.000-05:00

My friend Jeremy, formerly of Temple Law and the Philadelphia Public Defender's Office, has his hand full with his first high-profile retained client. His hero was mad that some kids wouldn't get out of the way of his car, so he shot and killed a 14 year old. While waiting for a hearing at the courthouse, Wonderboy got his ass beat by some other prisoners who presumably didn't take to kindly to his vision of traffic control. Good luck in prison, buddy. :)

A few weeks back, this asshat scammed some money from a friend of ours.

When we asked him to refund the money, he replied via text message: "Fortune and glory are a zero sum game." I thought we'd be lucky if they charged him at all. Turns out he's looking at a multiple felony charges once they track him down. Let me assure you that you have nothing to worry about; jail house rape is unlimited and free for all. Especially for those folks foolish enough to use the same email address that they defraud folks as the one listed with their contact info on an official university website, their eBay account, and their Facebook/MySpace accounts.

UPDATE: It didn't take to long for UT students to turn on one of their own and report Mr. Garza to the police. Hopefully all the folks can get their money back and Mr. Garza will get a chance to learn his lesson. He got to take a second picture, too:

Mama must be proud.

The Tao of SCRAM: Or How I Learned to Center Myself and Love the Law

2007-08-16T12:02:00.000-05:00

At some point in everyone's life, you realize you set out to do something much different than you actually did. This ostensibly should be a criminal law blog (or is it criminal blawg?), so it's high time I focused back on what's important.

What better way to introduce a link to a story about the ankle bracelet that Ms. Lindsay Lohan was wearing when she committed DWI #2 earlier this month. The SCRAM device is attached to a person's ankle, and through the company's proprietary technology, measures the person's sweat to determine if there's any alcohol in the blood (.02 or higher). If so, the on-board transmitter communicates with a person's landline and sends a report to the company to let them know a violation has taken place. Most of the time, SCRAM will turn around and let the probation/parole/pretrial services department know that the person is in violation of the terms of their release. This usually means that there's a good chance someone's going back to jail. (In Ms. Lohan's case, SCRAM called her lawyer, which I guess means she got a stern lecture.) Since SCRAM is proprietary technology, it costs a lot of scratch. In Travis County, that means around $350 per month plus installation fees, putting it really only in the universe of Lindsay Lohan and her ilk.

Unfortunately, the alternative for folks awaiting trial on their 2nd or higher DWI is the ignition interlock device (a brethalyzer to start your car) or going back to jail to await a resolution of your case (Who can afford to do that?). So most folks are left with the interlock, even if they don't own a car, so we've got friends and brothers and parents of the DWI accused who have to have these machines on their vehicles to satisfy the judges. Thankfully, the free market will hopefully do the same thing to the price of the sweat-monitoring-ankle-device as it did to the interlock device: cause the cost to tumble down to somewhere reasonable. No news about how long this will take.

The other big problem with the device (and perhaps most significant one) is that IT'S NOT ACCURATE AT ALL!!!!!!! You want some more? See here, here, and here. Those are all defense lawyer websites, but they do link to the actual peer-reviewed scientific articles rebutting the notion that the SCRAM device is a reliable means of monitoring someone who is only prohibited form drinking ethanol. Things like mouthwash or alcohol-based hand sanitizers or lotions that have a minute amount of alcohol in them will cause a report to be issued that you have consumed alcohol and possibly cause your dumbass to get revoked.

So much for the presumption of innocence.

How's it, brah?

2007-08-08T14:56:00.000-05:00

I never really gotten why people were ever so hot on Sarah Jessica Parker, and nothing I've said or thought captures why not better than this.

Ask Your Doctor about Google AdWords. Click here for more info!

2007-07-18T13:36:00.001-05:00

I wish I could blame the ridiculous summer weather in Central Texas for my net absence. Or the phases of the moon. Instead, I choose to blame Google AdWords.

Since the beginning of July, I have been implementing a keyword campaign for my boss online. (I had actually suggested the venture to my boss when I started last year, but I wasn't persuasive enough.) It has been alternatively entertaining, frustrating, educational, heartbreaking, and nostalgic (elvez1975 did internet advertising in the late 90s). I have generated hundreds of ads and thousands of keywords, and now am waiting, tweaking our bids just high enough to start generating a little more traffic.

From what my research has turned up, our ads are vying for spots in the the most competitive (read: pricey) words on Google, some going for $50 - $100 for the top position. Even assuming a generous 5% conversion rate, that equates to something like $1000-2000 per customer. At 1%, that's $5,000-10,000 a pop!!!! I guess you can make money at that rate or else no one would be bidding like that, but it still seems a bit high. From what I can tell, there are more people competing for this market on Google than at the same time last year, so prices will likely continue to rise. Needless to say, we are not bidding at this level, but are trying to rely on more sophisticated techniques to drive traffic.

I'm sure the Mrs. will be happy once we start getting some improved results.

In honor of Ray Diamond and Astronaut Sex ....

2007-07-02T16:46:00.001-05:00

Query: if you represented an ex-astronaut charged with attempted kidnapping, wouldn't you be more concerned with proving your client's innocence than clarifying that she never wore a diaper during the attempt?

7-Eleven : Kwik-E-Mart :: Simpson's Movie : Corporate Shill????

2007-07-02T09:40:00.000-05:00

In a marketing deal, 7-11 is transforming a dozen of its stores into Kwik-E-Mart to promote the upcoming Simpsons movie. No word if clerks will be required to use South Asian accents.

I hope you got a good price for your soul, Doug. ;)

No hay mas adrenalina

2007-06-28T16:50:00.000-05:00

My mom and I were driving back to Austin from an emotionally draining night honoring my dad, coming south on I-35. As we were about to pass an SUV, it turned into our lane. I slammed on the brakes and honked the horn, and the driver reacted by swerving out of the left lane, over-correcting his right turn, and slammed the car into the concrete divider in front of us, sending the Explorer rolling back across the highway and into the roadside ditch.

I had never seen anything like this. We pulled over, and I was thinking that everyone in the car was dead. Thankfully, a bloodied and battered family of five travelling back home to Mexico was pulling themselves out of the car by the time I got there along with half a dozen Good Samaritans. There were head injuries, broken bones, and margarine over everything and everyone. Like the folks in the car, I was in a state of shock, but there were cooler heads on the scene before the emergency crews showed up. They did all the things you're supposed to do: bandaged and applied pressure to gaping wounds, got folks off their feet, elevated appendages where necessary, and kept everyone warm and dry in the mid-morning showers until the professionals arrived (in what seemed like mere minutes).

Forty-five minutes later, they were on their way to hospitals in Waco and Dallas. I was happy to find out today that they all made it. Thanks to the first responders on scene in Hillsboro, Texas. I don't how you your jobs every day, but you made a big difference Monday.

Somber Father's Day 2007

2007-06-15T16:10:00.000-05:00

I know I'm not alone here, but the signpost holidays are always difficult since my dad passed. It's been over a year and there's times when it's just too painful to think about.

Let's be clear about one thing. My dad and I shared no bond about golf. I have only played the Golden Tee variety (with some success) and from what he told me, his game had a few holes (in addition to contributing to a nagging shoulder injury if I recall correctly). But this article by Jay Montgomery really hit me in the face when I read it this morning. It's not really right to cry in a law office, but here I am (well, maybe it not good for a lawyer to cry in a law office).

I miss the meal time discussions filled with his favorite retort, "The problem is...." I wonder how I became just as bad an athlete as he was even though I didn't inherit his genes. I miss his smile, his reassuring way, and his constant upbeat spirit.

I miss you dad.....

File under "Check yourself before you wreck yourself"

2007-05-25T17:05:00.000-05:00

Hey DWI Dude. Chill out. You're not winning any hearts or minds with this sort of thing.

Don't let the door hit you on the way out

2007-05-25T15:06:00.000-05:00

I know the Rosie thing has spun out of control, with her announcement today that she will not complete the 3 weeks left in her contract. Yawn. Ever since she started becoming more of a political activist in the 90s, her bullying personality has become worse and worse. It's almost as if her character in A League of Their Own is more portrait than role.

As far as the battle on The View, I'm sure you've seen it, but if not, here it is.

(Elisabeth comes across as the only reasonable one, with Joy sounding like a parrot and Rosie like a whiny bully. Not to say that Elisabeth is right, but when faced with such mental midgets, her position seems the most reasonable. To top it all off, Rosie's writer on the show was escorted from the building after drawing mustaches on the pictures of Elisabeth that hang in the studios. That's right, drawing mustaches like I used to do in my middle school yearbook. Wow.)

Thanks, ladies. In the future, please stick to your crappy comedy routines.

My Futurama Magic Number is ..... 2

2007-05-17T16:23:00.000-05:00

One of the longest running jokes at mi casa is my shameless attempts to force K-D to watch Futurama, despite the fact that we have "pretty much" seen every episode. She endures a lot of cartoons, and while I give her credit for her patience, I make no apologies about my love of the painted, moving cells. At one point in the late 90's, I sat down with a Simpson's guidebook and discovered that only about 5 episodes had slipped through my fingers. (Of course, that was before they ran out of ideas about 1998. Occasionally, they'll have a funny bit now, but I think they're just trying to lock up the record book at this point. Kind of like Craig Biggio. The point is, I haven't seriously tried to follow new episodes in years. Maybe the overdue movie will raise my spirits.)

Thanks to the internet, I don't have to refer to frozen-in-time physical list of episodes to quantify the sheer volume of time I have spent staring at an electron-projecting tube. It turns out there are 2 actual eps that I have yet to see. To wit:

S02E15: A Clone of My Own

Futurama Production Code: 2ACV10
Episode first aired 04/09/00
written by Patric M. Verrone
User Rating: 86%

Guide:
While at his 150th birthday surprise party, Professor Farnsworth is surprised by his age and that it's time for retirement. Questioning his accomplishments and seeking more in life, he revives his clone, Cubert, a 12-year-old boy. But the forlorn Farnsworth realizes that Cubert is just another failed experiment, and decides to accept his fate.

S04E07: A Pharaoh To Remember

Futurama Production Code: 3ACV17
Episode first aired 03/10/02
written by Ron Weiner
User Rating: 65%

Guide:
After delivering an enormous sandstone to Osiris 4, Fry, Leela and Bender are forced to work as slaves assisting the construction of the great Pharaoh Hamenthotep's tomb -- a pyramid. When Bender experiences an identity crisis because he has never been an over-achiever, he becomes extremely motivated, working harder and faster than anyone for the completion of the tomb. While the Pharaoh acknowledges the crew's diligence, Bender's efforts accidentally kill him, and Bender proceeds to the throne.

I feel vindicated in continuing to wait for either of these to air on adult swim.....

Breaking Immigration News ... Amnesty on the Horizon

2007-05-16T14:30:00.000-05:00

Recently, I had a friend call me and ask what the procedure was for getting his soon-to-be illegal alien wife started on getting lawful status. I knew enough to know that I know nothing about the Immigration Code, but I did tell him that my understanding was that she would have to leave the country after their marriage, apply for a visa, and wait in Mexico while her application was being processed (which could be anywhere from nine months to one and a half years). (For those of you who skeptically look at US Immigration policy and say "This is only because she's Mexican", the same lengthy wait was endured by another friend's British national wife as she waited to enter for about 9 months.) You have to be eligible to adjust status and people who enter without permission cannot do so.

Well, that might change as the Senate compromise between Democrats and realistic Republicans is allegedly going to produce an announcement about an amnesty in the next few days, creating a "Z" visa. Basically, folks who illegally entered will be able to get the coveted status from which they can adjust and get on the pathway to citizenship so long as they can prove continual presence.

I think this is a good compromise and a way to solve the whole mess that folks like Tom Tancredo have been decrying in anticipation of Election 2008. In truth, there does have to be some way for the country to address its security concerns, some way to reward those who legally immigrate and not those who do so illegally, some way to stem the flow of resources to provide social services to the growing illegal population, and some way to ensure that all folks present here in the country are afforded the protection of state and federal labor laws. An amnesty might not be perfect. It does, after all, "reward" people who are here illegally. The other side of that coin is that it recognizes that the vast majority of the 20-30 million illegal aliens who are law-abiding and productive folks who are just trying to get by.

Stay tuned.....

Judges Behaving (Very) Badly

2007-05-16T09:07:00.000-05:00

Sometimes I am real happy that I practice in a town like Austin. In other places, there are some judges that make it very difficult to practice law. Not for everyone, mind you, but for those of us who have unpopular clients (read: nearly every criminal defendant) or just happen to be adversely positioned versus the interests of that particular judicial officer. The Dallas Observer did a nice article on just such a judge (Gene Knize) in Waxahachie, a town of 22,000 just south of Dallas on I-35. His tactics include blatant partisanship towards the prosecution (which obviously, a judge is prohibited from doing), open hostility to defendants and defense attorneys in front of the jury (obviously verboten as well), filing his own motions (nowhere contemplated in any adversarial justice system I have ever heard of, much less in the Texas Codes of Civil and Criminal Procedure), sleeping and surfing the Internet during trials, having attorneys who challenge his rulings thrown into jail for contempt, and interfering with the substantive constitutional rights of parties in order to make the proceedings more convenient for himself. Note to self: this means no more complaining about any of our local judges, OK?

Interesting side story on Waxahachie: when I was in HS, I was a bit of a nerd. (I know, I know, it's real hard to believe what with my obsession with Star Wars, cartoons, and video games.) In the early 90's, I used to go to a ton of statewide conventions for debate, for Spanish club, and for other glamorous reasons. Whenever Waxahachie sent students, they would introduce themselves as from "Waxahachie: HOME OF THE SUPERCONDUCTING SUPERCOLLIDER!!!" (that means they yelled it out).

If there was more than one Waxahacian(?) within hearing distance, they would stop whatever they were doing and chime in. It was as if the Chamber of Commerce had reprogrammed the entire town with some sort of weird Pavlovian experiment. If you had ever driven through Waxahachie at that time, I guess you would understand why they were so excited about it; there was almost nothing there. Of course, being a lifelong member of the asshole club, when the US Government canceled the project after pouring $2 billion into it 1993, I was brimming with schadenfreude (you can brim with that, right?), partly because I was happy that no one would have to hear that line anymore.

For what it's worth Waxahachie, I'm sorry for being such a jerk. Now vote Judge Kinze out next election, will ya?

Remember 1-31!!!!!

2007-05-11T17:03:00.000-05:00

We must never forget Janaury 31, 2007. If we do, the terrorists win. Or the Mooninites.

"I'm doing this as hard as I can."

Massive Human Undertakings Flying Well Beneath the Radar

2007-05-10T14:40:00.000-05:00

A tunnel that would connect Alaska to Russia by rail and road could be built in 10 to 15 years? How did that one slip by? Were we too busy talking about Paris Hilton getting 45 days in the clink?

The dreams of millions of Risk fans are ever closer to fruition. "I am attacking Kamchatka from Alaska. Pier to pier."

Governer Perry's Secret Files

2007-05-10T14:37:00.000-05:00

This story is a little old, but in case you missed it, Gov. Rick Perry's office is keeping a second set of records on all Texans ever accused or convicted of a crime in Texas, in addition to those folks with suspected ties to terrorism in the Lone Star State. This is separate and apart from the official state database run by the agency charged with keeping such records, the Department of Public Safety. The Texas Observer broke this story and deserves a ton of credit for bringing it to light.

Why does this matter? Well, under Texas law, people who are arrested and whose charges are later dismissed or are acquitted (as well as those folks under 21 convicted of one alcohol offense) are entitled under Chapter 55 of the Code of Criminal Procedure to have their arrest records destroyed. It's a civil procedure and the state judge has the power to order all governmental bodies within the state to destroy all record of the arrest (Art. 55.03 says the files have to be destroyed if used "for any purpose"). So now criminal defense attorneys should include the Governor's office when they list state agencies on those petitions.

The database is maintained by a private company (which, surprise, gave $ to AG Greg Abbott and DeLay's legal defense fund) and is accessible by 7,000 state and local officials. More disturbingly, later this year, the database will start drawing info from FBI and other federal sources. So in essence, Perry's office will have to abide by the expunction order and destroy the information obtained from state agencies (who are subject to a state judge's order), but can then turn around and reacquire it from one of the federal agencies (who are not subject to a state judge's order). Because the accused only get one bite of the apple under Texas' expunction procedure, the Governor can presumable sidestep this "inconvenient" state law and get the info anyways (presuming, of course, that it gets reported to the FBI).

Pardon me if I'm a little confused about how this helps us fight terrorism....

Hypocrisy 101

2007-05-10T14:29:00.000-05:00

Putin likens U.S. Foreign Policy to that of the Third Reich. In other news, pot calls kettle black.

Last Trek at Philmont

2007-05-03T15:25:00.000-05:00

Good, tough weekend. Said goodbye to my dad, but he got to be where he'd want to be if he wasn't so damn selfless.

Where have you gone, George Costanza?

2007-04-18T09:39:00.000-05:00

Too bad there's not a short, stocky, balding, Jewish marine biologist to help guide this lost minke whale out of New York harbor and back to sea.

Instead, he's doing crappy improv shows. Honestly, when your headliners are Shannon Elizabeth and George Takei, isn't it time to pack it in?

WANTED: Fall guy for the War in Iraq

2007-04-11T09:38:00.000-05:00

Must be willing to sacrifice reputation and hard-earned career in the U.S. Military in order to be the scapegoat for a ship without a captain.

(In case you missed I had a bit of a vacation recently. Well a working vacation, at least. I attended a trial "college" where baby lawyers learn to be adolescent lawyers. I had the pleasure of being instructed by several excellent attorneys including some from A-town. To wit: him, him, one of these guys, her (for some reason not wearing a hat here), him, & her.)

School Administrators & the First Amendment

2007-03-23T13:12:00.000-05:00

The SCOTUS heard oral arguments this week on the infamous Morse v. Frederick free speech case. Basically, a Juneau high school principal was sued by a student after she ripped away a large banner from a student displaying the message "Bong Hits 4 Jesus" in a public place (the procession of the Olympic Torch on a street adjoining the school). (The arguments can be found here.) Ken Starr represented the school district and the principal, probably signaling the end to his poorly-cast role as a liberal hero.

My favorite exchange follows...

JUSTICE BREYER: It wasn't either. It was a joke. It was a 15-foot banner. We have the message plus the means plus the school event. Now, what's your response?
MR. MERTZ: My response, Your Honor, is that, first of all, a 14-foot banner.
JUSTICE BREYER: That's an excellent response, I think.
(It's always a good idea to use humor to bring levity to a situation. Especially before the Supreme Court. At least these judges seem to enjoy their jobs.....)

Incidentally, transcripts of oral arguments before the Supreme Court can be found at its website. While the transcripts suffice for those people who have a little exposure to appellate advocacy, I'd suggest anyone interested in hearing how fast and furious it can get check out C-SPAN, which occasionally provides audio clips (no video yet though, thanks to Justice Scalia). A good way to become familiar with how our highest court works.

SXSW Film Festival: "638 Ways to Kill Castro"

2007-03-20T17:04:00.000-05:00

Our second selection at SXSW turned out to be "638 Ways to Kill Castro" by filmmaker Dollan Cannell. The film starts out with a kind of humorous bend to it; the audience gave up the mandatory laughs when the narrator described the ways the CIA tried to humiliate and kill Fidel by, for example, making his beard fall out. It also had some sweet low-budget clips from a Cuban TV show that featured Castro's head of security and the primary source for the film's plot. And some stock spy and gangster movie clips, too.

However, about two-thirds of the way in, the film became much darker as we learn about the Anti-Castro terrorists who live in Florida and whom the US continues to harbor. Of course, this was followed by some clips of Bush II talking tough on terror. A good point if we couldn't see it coming a mile away (Maybe just make the point and move on?). The live footage of the post-civil war executions was particularly gruesome and despite attempts to romanticize Castro, Che, and the Cuban Revolution, it's quite obvious that thousands of innocent people have been executed and imprisoned since 1959.

I'm not sure what the director wanted us to feel or even what he wanted to say. Still, the film was compelling on a certain level (perhaps in spite of itself), and I enjoyed it if only for the vintage footage. Kady did not concur and found the "America's Funniest Videos" bits to be a little much. I had hoped that we would get the same shot at Q-and-A as we did when we saw "Fall from Grace", but, alas, it was not to be. Did get some good gorditas at El Mercado in the Alamo City, though.

SXSW Film Festival: "Fall from Grace"

2007-03-15T12:40:00.000-05:00

Kady and I survived the embarrassment of being mere ticket holders at the SXSW Film Festival to see "Fall from Grace", a documentary by Kansas University student Ryan Jones. Jones' film tells the tale of legendary hate-monger Rev. Fred Phelps of the Westboro Baptist Church and GodHatesFags.com from Topeka, Kansas. My first contact with Mr. Phelps was when he was a guest on The Jenny Jones Show in the mid 90s. He came off like a jackass then and does the same in the flick, but you have to admit he is more than a little bit charismatic (it was still a little strange to hear Ryan and some of the audience wax romantic about staring into Phelps' deep blue eyes).

The unlikely heroes of the film (at least from the perspective of the uber-liberal Austinite) turned out to be the Patriot Guard, a group of Veterans on motorcycles who follow Phelps and his brood around and stage counter protests to offset his shit. They surrounded the area where the WBC types gathered and revved their engines so that the screaming would be drowned out. Some suggestions that might be less disruptive to the funeral services: white noise generators, and laser pointers (where legal).

"Fall from Grace" is Ryan's first full-length film and I thought it was very well done. It was a little predictable and the Phillip Glass music all the way through was a bit much, but the work was well-edited and had some really good moments (the interviews with Phelps' estranged children and the widowed victim of one of his protests shone the brightest). Of course, the Q-and-A was pretty damn cool too. FWIW, Jones remains a big fan of the 1st Amendment and the marketplace of ideas. He also felt a little attached to the Phelps family after a while. Interestingly enough, they liked the movie and all they wanted was a chance to have their POV heard.

When you're wrong, you're "wrong" (sort of)

2007-03-15T11:11:00.000-05:00

I 'll admit; I got into a froth over the firings of the US Attorneys by the DoJ a few months back. The Senate recently issued some subpoenas and 8 former USAs testify that they felt "leaned on" by members of the Republican Party to bring indictments of Democratic politicians in or around the November election. The Democrats, anxious to win some points, are steaming about this, and rightfully so. Even though these prosecutors serve "at the will of the President", if the firings were politically motivated I think everyone would admit that's probably not the best thing for the country. The fact that Justice's plan made its way to the web doesn't make this any more palatable.

Lots of folks flew off the handle, but it was a little premature. The MSM conveniently forgot that President Clinton fired all of the USAs when he took office instead of allowing their 4 year terms to expire as had been the prior practice. It was something the current administration pondered actually doing at the start of Bush II's second term, but the DoJ objected and the plan was withdrawn. Still, I'm not sure what is worse: cleaning house completely or firing only those folks who aren't indicting the opposition quick enough?

Reliable Intelligence

2007-03-15T08:27:00.000-05:00

The Pentagon released a transcript from a military tribunal of Khalid Sheikh Mohammed yesterday wherein he confessed to being the mastermind behind 9/11 and 27 other terrorist attacks by Al Qaeda. He also went on to admit involvement in the attack on Pearl Harbor, the bombing of the British Parliament in the 1660s, the attempt on President McKinley's life, and handing over West Point to the British in 1778.

Look, I'm sure he was involved in 9/11 and other terrible terrorist acts. But what exactly do you expect him to say after over 4 years in captivity and with the U.S. "not" "torturing" him at secret CIA prisons as well as Guantanamo?

Bottom line: is this really a headline?

300: Visually stunning but wildly inaccurate

2007-03-13T17:30:00.000-05:00

Make no mistake, 300 has some great visuals. I'm sure the 5 year old girl behind us appreciated the primer on sexual positions and the 10,000 beheadings in between kicking my chair and messing with the back of my head. (Is this really the best movie to take her to, mom?)

But even to someone with just a general understanding of ancient Greek history it was way off. Apparently, the professionals think so, too. Most glaringly, despite the attempt to pawn off the great Greek tradition of taking young boys "under their wings," it was the Spartans, and not those pussies of democracy, the Athenians, who were the big proponents of the practice. (I can imagine mothers getting pretty upset that their children were being taken away not because they might die in training or combat, but because of the years of sexual abuse and rape that awaited them.)

Oh, well. At least it pissed off Iran.

Dear Newt Gingrich ...

2007-03-09T11:16:00.000-06:00

I wholly support your candidacy for the Republican nomination in 2008. Your strong stance on moral issues will guarantee that we have either the first woman or black President in our nation's history.

In addition to the fact that he discussed divorce terms with his 1st wife while she has in the hospital recovering from cancer surgery, he has now admitted that while he was going apeshit for Bill Clinton during the Monica Lewinsky scandal he was having an affair of his own with his future 3rd wife.

My favorite quote was this: "even though at a purely personal level I am not rendering judgment on another human being." Right. You would never do that.

"Extraordinary Renditions"

2007-03-08T14:06:00.000-06:00

Last weekend at Threadgill's (My top 3 veggies: black eyed peas, broccoli rice casserole, San Antonio squash), my mom and I were talking about a local attorney who had represented a Guantanamo defendant successfully (by which I mean he was released and faced no prosecution in Afghanistan). The conversation drifted to the other crazy "stuff" the Bush Administration is engaging in the War on Terror. I brought up the news that Italian prosecutors had asked the US government to turn over the CIA folks responsible in 2003 for grabbing an anti-Egyptian government imam off the streets of Milan, throwing him a plane, and shipping him off to Egypt where he was summarily tortured. Needless to say, the US government, while neither confirming nor denying that this took place, said recently that they wouldn't turn over CIA agents to the Italian government. My mom's response? "They don't really do that, do they?"

Not only did it likely happen in this case, but the practice of "extraordinary rendition" is fairly widespread (Note that there's actually an Ali-G reference in this article). The short and sweet of it is that our silly little Constitution and system of laws prohibits our agents from torturing terror suspects (and I use that word loosely, given the number of real suspects our Guantanamo experiment has produced to date). So, instead of wasting our time with due process, our agents just kidnap these folks and take them to those places where the law means nothing. There they can standby while locals beat the suspects to their hearts' content and wait in the room to get all the uber-reliable "intelligence" that torture produces. The funny part about the whole thing (not "ha-ha" funny) is that we are outsourcing our torture to countries who are otherwise some of our biggest "enemies" (namely Syria).

So we are trashing everything this country stands for in order to save it? Color me confused.

State-compelled Destruction of Evidence

2007-03-08T10:56:00.000-06:00

Given the number of successful actual innocence claims and the racial disparity inherent in the imposition of the death penalty in the United States, you would think that people whose primary duty under the Texas Code of Criminal Procedure is "to see that justice is done"(Art 2.01) would be interested in making sure that the innocent are not punished. Why then are Texas Prosecutors so psyched about getting criminal defendants to agree to the destruction of the evidence in order to avoid the death penalty?

I've got several problems with this approach. The DAs seem to think that because "everyone tests physical evidence for DNA" that we should have no problem with these sort of conditions on plea bargains. But what if the lawyer is ineffective and doesn't do it? To suggest that there aren't criminal defense attorneys who are incompetent ignores a whole litany of case law and historical fact (lawyers who sleep in capital trials, lawyers who fail to investigate at all, lawyers who fail to present any mitigating evidence, lawyers who have a conflict of interest with their clients, and yes, lawyers who plea their clients to shitty deals without doing some investigation). I might point out that ineffective assistance of counsel claims are properly brought either on direct or collateral appeal (habeas corpus claims). So the challenge whose relief is a new trial will be kind of pointless if the evidence has been destroyed by the district attorney's office.

Secondly, isn't the storage of evidence relatively inexpensive compared to incarcerating some one for several years? If we're looking at this from a pure monetary perspective (which I am not accusing prosecutors of doing), then a cost benefit analysis shows that it's much less expensive to store evidence than people. Perhaps the counties are sick of holding evidence for state inmates. If so, take it up with the State legislature and make TDC pay for it.

Finally, when should administrative convenience trump the ability of a United States citizen (or anyone for that matter) to get a fair and just result? If the State want to put someone in prison for the rest of their life, then the State has to provide a competent attorney. The same should hold for evidence: if the State wants to incarcerate you, then any evidence should not be destroyed unless and until the inmate can raise no additional challenges to their case, collateral or direct.

UPDATE: As usual, there is someone else out there far more intelligent than me with a much bigger audience (OK, an audience) who has written quite eloquently on the subject. Check out Scott Henson's posts at Grits for Breakfast.

Leeloo Dallas Multipass

2007-03-06T16:39:00.000-06:00

Both Kady and I are big fans of The Fifth Element (and Luc Besson in general), so when I read that scientists have discovered that the sea squirt can regenerate its entire body from a single blood vessel, I was reminded of the Perfect Being's big comeback at the beginning of the flick. This represents potentially a huge medical advance years down the road. If scientists can identify and learn to manipulate vertebrate mechanisms for regenerating just entire organs, disease might well become a thing of the past.

Unfortunately, no matter how cute or funny its name is, a sea squirt just isn't the same as Milla Jovavich (even though girlfriend has made some uber-crappy movies in the intervening years).

Some free legal advice

2007-03-06T10:48:00.000-06:00

If allegations come to light that you had sex with juvenile inmates at a state facility, I might recommend taking down the MySpace pictures of yourself at a porn convention in Vegas. Maybe also this quote: "If you ask me I'll say..... if it feels good, Just do it."

Just a thought.

A different kind of sports story

2007-03-06T08:24:00.000-06:00

With all the money and steroids, sometimes it's hard to remember why sports and athletics are so inspiring. Here's two good reasons:

- The first high school football team to play home games north of the Arctic Circle. (Some folks in Florida raised money so that the Barrow Whalers could play on artificial turf instead of dirt and rocks.)

- Three athletes trek across 4,000 miles of the Sahara desert in 111 days. Just for the hell of it.

Justice Thomas Interview

2007-03-05T20:22:00.000-06:00

This Clarence Thomas interview with Business Week focuses on Thomas' experience at Holy Cross University in the late 60s/early 70s. God knows, I'm no Thomas fan. In fact, I think he is almost universally wrong on his legal interpretations. But he's got an interesting story which helps explain his steadfast opposition to affirmative action.

A good read.

Snip, snip, snip

2007-03-02T15:55:00.000-06:00

Tired, I guess, from be hammered by Courts insistent on applying that always annoying Constitution thingee, Republicans passed the Military Commissions Act in late 2006, which took away the ability of federal courts to hear habeas claims from people detained by the US military. Given the lack of jurisdiction, the DC Circuit court said that all such claims should be dismissed.

So basically, we know we're not right on the law, so instead of bringing our practices in line with the Constitution, let's just keep people from having a way to redress their grievances in the first place.

Please tell me that there's a Democrat out there with the balls to try to repeal this piece of crap. In any event, expect an appeal to the Supreme Court.

Why I couldn't be a prosecutor

2007-03-02T15:27:00.000-06:00

The Texas Court of Criminal Appeals is anything but soft on crime, so you know that when they grant a criminal defendant relief, it's got to be because of something pretty egregious...

File this one under prosecutorial overreaching and defense counsel stupidity: Ex parte Roemer, __S.W.3d__ (Tex.Crim.App. No. 75,104, 2/28/07). The Court found defense counsel to be ineffective because he had pled his client to a DWI felony enhanced because of a prior conviction for involuntary manslaughter. Texas law only allows for a prior intoxication manslaughter conviction to enhance such a crime (Texas Penal Code Sec. 49.09(b)(1)), not a charge of involuntary manslaughter. The exposure for the defendant went from 6 months max in the county jail to 10 years in the Texas Department of Corrections, thus illustrating that it can really hurt to not read carefully.

Despite the illegal sentence, the State opposed the appeal. Why? Because the defendant pled to it. Don't count on the State to be too concerned in the interests of justice when that means a shorter, less onerous sentence for a felon.

Russia's Big Britches

2007-03-02T14:44:00.000-06:00

If you blinked a few weeks back, you may have missed this story, but I think it's a big one. I've written before about Putin being the furthest thing from a champion from democracy, and the poisoning of Aleksandr Litvinenko is only Exhibit AAA in that case.

Lest you think this sort of Machiavellian approach to rule is limited to Mr. Putin, you would likely be surprised to hear that the commander of Russia's strategic forces said that basing anti-missile defense installations in Poland and the Czech Republic would require Russia to target those countries with its nuclear arsenal. Not surprisingly, neither country was particularly psyched about the markedly "unveiled" threat.

Given the history of Russia in Eastern Europe, who can blame them?

Stuff like flOw....

2007-02-27T21:10:00.000-06:00

makes me wish I had a single creative bone in my body. I don't know that I'd pay 60 bucks for the PS3 version, but the Flash version is pretty damn sweet.

Brittney not the only loony tune in the trailer park...

2007-02-26T14:36:00.000-06:00

Even district attorneys are not immune from acting like deranged white trash from time to time.

Hello again to an old friend: The RBV

2007-02-20T14:27:00.000-06:00

You know that feeling when you walk by a familiar face, do a double take and realize that you're staring at your best friend from 4th grade? That's the feeling I got when I read this in Bill Simmons' ESPN.com column about the NBA All-Star Weekend in Vegas:

"[Thumbs down] to the Red Bull and vodka drink, which needs to be outlawed for everyone's safety. If you drink more than four of them, smoke a couple of butts and stay out too late, there's a 100 percent chance you'll sleep for about three-and-a-half hours and wake up terrified because your heart is tap-dancing like one of the Hines brothers in your chest, complete with the requisite, 'Good God, I think I'm going into cardiac arrest, this is what happened to Len Bias!' moment. Bad times. I'm predicting the first-ever celebrity heart attack from an overdose of Red Bull and vodka and cigarettes within the next two years."

Classic. When Red Bull first hit the US hard in 2001-2002, I was one of it's biggest supporters. The only thing that bothered me about it was the dearth (at first at least) of bars that carried Diet Red Bull when I was on the Atkins diet (Mmmm, breadless cheesesteaks).

Sadly though, my body has caught on to the fact that I'm not 21 anymore and pounding RBVs from 8-2 just doesn't put me in the "right place" the next day. It doesn't help that you could mix Red Bull and vodka at a 1:1 ratio and still find it fairly drinkable. Especially when you're pouring it in pint glasses.

80's Movie Classic: Superman III

2007-02-01T15:06:00.000-06:00

Ask most fans of the Superman series which movie was the best of the bunch, and they'll likely tell you Superman II. After all, Superman defeats three fellow Kryptonians including the infamous General Zod, way back before he was running for US President.

Allow me to suggest that the better choice is actually Superman III. Even though this comic succinctly summarizes the plot, allow me to cover some of the highlights:
- Lois Lane is an afterthought in this one, owing to Margot Kidder's ongoing insanity issues.
- Superman is exposed to synthetic kryptonite, which causes Evil Superman to become the dominant personality. Hence, instead of rescuing people, Superman spends time trying to get into Lana Lang's pants, boozing it up (apparently Superman can go to the center of the earth, but a little sauce gets him drunk), straightens the Leaning Tower of Pisa, and for some reason, breaks a hole in an supertanker, creating an enormous oil slick. The production staff let's us know he's evil by giving him a five o'clock shadow (Why this is an issue). The crowning 80's moment is that Good Superman (represented by Clark Kent) must engage in a junkyard fight to end all fights to defeat Evil Superman.
- The movie does an excellent job of focusing on the technology of the times. Apparently, satellites can control the weather (with hilarious results), nuclear missiles that generate 100 megaton explosions have to run into Superman in order to hurt him or even detonate, scientists have machines which allow them to generate any compound just by typing in some component elements, and your standard super computer can gain self-consciousness as well as animate itself

Did I mention that Richard Pryor is in this movie? But if you're expecting a Stir Crazy Richard Pryor or a Jo-Jo Dancer Richard Pryor, you will be sorely disappointed. Richard Pryor starts off in the unemployment line, discovers computer school on a matchbook, gets an underpaid job, hacks his way to multiple pay checks, gets noticed by his boss, falls 500+ feet onto a Manhattan street and lives (i guess if you have a sheet tied around your neck and snow skis on your feet this is possible), pretends to be a salesman eventually wearing this ridiculous hat, out drinks another 80's icon (Jack Petachi from Never Say Never Again & Eric from Willow), points a satellite to a point billions of miles away and is able to scan for and find kryptonite, designs the aforementioned awesome supercomputer, humorously rides a donkey into the Grand Canyon for some reason, and despite the fact he tried to take over the world, is immediately forgiven by Superman. All this while not really getting to be funny. Ironically, the only person of color to ever have a role in the Superman movies ends up being the most plain vanilla person on the screen. Awesome.

Oh, and Robert Vaughn, who just sort of inspires 80's mediocrity, is the evil villain who uses Pryor's programming genius to his own ends. (I am willing to forgive Vaughn for all his other crappiness simply because he helped the A-Team find their aim in the late 80's.)

This is all to say that this is one of the worst movies ever made. If you like bad movies as much as I do, it's definitely a classic.

Filbert Street Hijinx

2007-01-26T14:50:00.000-06:00

A fee weeks back, a Philadelphia criminal defense attorney, Larry Charles, was arrested in the county courthouse after sheriff's deputies discovered him naked in a conference room with a teenage girl. (No, not the director of Borat and former Seinfeld writer/actor. I'm talking about the lawyer that represented Big Baby Jesus, aka Dirk McGirk, aka Old Dirty Bastard, when he was apprehended as a fugitive in the Iladelph.)

Where in the pervert's handbook does it suggest that a good place to try to have sex with a 13-year old is in a damn courthouse? What, was the police station too crowded? No room at the district attorney's office?

It must have been pretty hard for Mr. Charles to show up back at work on Thursday the 19th. "Um, hey. What did you do this weekend?"

Taking Sides

2007-01-26T14:38:00.000-06:00

I was one of those "anti-America" Americans who after 9/11 said, "There's a lot of people out there who don't like us but that doesn't mean we should be killing them. There's nothing wrong with hating America, so long as you don't hurt any of our citizens."

I think I used to feel that way about Hezbollah. After all, their country was occupied by a foreign power for decades and all they seemed to want was to write their own destiny. Even with the Israeli invasion/bombings of 2006, I think I have officially changed my mind. Hezbollah indiscriminately targeted civilian population centers with its Katayusha rockets; Israel (for the most part) exercised restraint (as much as you can when fighting a battle like that). Michael Totten's blog has a great report on the bombing of the Hezbollah capital.

Not only is Hezbollah engaging in anti-democratic and terroristic behavior against foreigners, they are destroying any prospects that Lebanon has of being a free, autonomous nation. (This is a tragedy anywhere, but most certainly when you have a chance to do this in the Middle East organically, that's even worse.) Hezbollah basically uses its illegal militia to operate as the de facto government in Southern Lebanon. (I suppose that this is OK if you are Shia, but if you happen to be Sunni, Christian, or Druze, good luck.) While they get a lot of good press for operating their own hospitals, schools, and other social services, they actually prevent the Lebanese national government from doing the same.

Hezbollah's protests in Beruit aren't democracy; they're attempts by the group to hijack the rest of the country and basically force it to submit to their will.

Andy Griffith vs. The Bush Administration

2007-01-23T19:37:00.000-06:00

If a small town sheriff can understand the Constitution, why can't an entire administration??? (Some of the comments are priceless, BTW.)

Newsflash: Bush Administration to Comply with Constitution

2007-01-22T19:07:00.000-06:00

The White House, after three years of insisting that it was perfectly OK to sidestep the Fourth Amendment by not submitting its wiretap warrants to the Foreign Intelligence Surveillance Court, announced last week that it will comply with the law. Republicans hope that the move will render suits over the action moot, but there's still the issue of how to deal with the violations that presumably occurred since September 2001.

This is just one of the several policy changes I think we can expect now that Democrats control Congress and are in a position to investigate several of the arguable illegal policies of the Bush Administration. But don't expect any of the investigations to come from the Department of Justice. Several of the US Attorneys likely to function as Independent Counsel have recently been dismissed under a power granted by the USA Patriot Act. The Democrats need only point the finger in the mirror; all but 2 Democratic senators voted in favor in 2001.

War on Terror: Homefront Edition

2007-01-22T15:13:00.000-06:00

The Department of Defense is doing such an excellent job of managing its intelligence resources that it can afford to spend $ and manpower on building and maintaining secret files on anti-war groups here in the United States. It's very reassuring that decisions like this are part of our overall strategy.

(Grits for Breakfast, by the way, is an excellent blog about the Texas Criminal Justice System written by Austinite Scott Henson. Check him out.)

Sex Offender Scare Tactics

2007-01-19T18:09:00.000-06:00

If you've followed the American political scene closely for the last two decades, you've seen more and more campaign rhetoric aimed at preventing sexual abuse of children. For politicians, targeting sex offenders, especially those who have committed an offense against a child, has been like shooting fish in a barrel. No one much seems to want to speak up for these folks, so it's pretty easy to as a matter of course, argue that we need to be tougher on sex offenders, especially because the abuse continues. Even some businesses are trying to make a quick buck off of this paranoia, including Privacy Matters Family, which offers child abduction insurance and email notification when any registered sex offender moves within 20 miles of the recipient.

The current en vogue proposal, which is on the table here in Texas, would make anyone accused of a second sexual assault on a child eligible for the death penalty. Politics is not subject to constitutional protections, at least in the abstract. Fortunately for our society, laws that punish disproportionately to an offense are subject to the Eighth Amendment's protections from cruel and unusual punishments. Most germane to this particular punishment, is the US Supreme Court's 1977 decision in Coker v. Georgia. There, the Court held that because the punishment is disproportionate to the crime, the Eighth Amendment would prevent a state from imposing it under such circumstances.

I wouldn't give the bill much chance of passing, at least in Texas. Both victims' rights groups and the Texas District and County Attorneys Association have come out against the bill because they argue it will encourage offenders to kill their victims. They point out that if offenders know that they face the death penalty, they will consider killing the only witness, and further, that as many of these crimes are committed by family members, the likelihood that crimes will be reported will go drastically down.

Because of the lack of support from these two groups, the bill will likely die in committee. But since so many folks here made it part of the their campaign promises, I doubt it will go down easy.

More Space Weapons Doublespeak

2007-01-18T20:22:00.000-06:00

Is the White House's outrage over a successful anti-satellite test by China inconsistent with our development and maintenance of similar weapons? Or should we read the statement from a strict textualist perspective(having anti-satellite weapons is OK, but testing them is not)?

I'm not sure if that's more or less hypocritical....

Here's an idea...

2007-01-18T20:18:00.001-06:00

Instead of suing MySpace, why not monitor your children's internet usage?

Libby Trial Jury Selection

2007-01-17T18:46:00.000-06:00

The old adage is that trials are won or lost in jury selection. That must be especially true when you are a Republican political figure and your jury pool is 9 to 1 Democrat to Republican. That's the backdrop for the trial of Scooter Libby on federal obstruction of justice charges which got deep into jury selection this week.

I find the headline of this article to be the most informative: "Libby Seeks Jurors Who Trust Cheney." Let's be frank, Dick Cheney does not have an especially strong reputation for being forthright, even in suits to which he is a party. If your trial strategy relies on this line playing to an overwhelmingly Democratic jury pool, perhaps you should revisit the idea of a plea bargain with your client.