Wednesday, September 28, 2005


It's been another busy week for me, hence the light blogging. I did, however, have to post about a couple things.

First, our county government leaders have just approved a 15% raise for all prosecutors and public defenders. I am still in shock. I don't think I will completely believe it is true until I see it on my paycheck. In the meantime, I will express my sincere gratitude to my semi-anonymous county commissioners for their generosity.

Second, Tom DeLay was indicted today by a Travis County grand jury in Austin. I know many people, including DeLay himself, will complain that the DA, a Democrat, is conducting a partisan witchhunt, but I just don't buy it. In all the years that Ronnie Earle has been the DA in the county of our state capital, he has gone after plenty of elected Democrats as well. So, while it is certainly possible that the indictment is politically motivated in that the DA likes to go after big political targets no matter what their party affiliation, the allegation that this is a partisan attack just doesn't hold water with me.

Third (sort of 2B, actually), in his statement to the press in reaction to his indictment, DeLay said that it was one of the "weakest, most baseless indictments in American history." I almost fell out of my chair laughing when I read that. Perhaps Mr. DeLay would like to look at some of my files and the files of some of my colleagues. Many indictments here are handed down after a random police officer recites another police officer's report that consists of some version of the following: "Officer X responded to the scene. Complainant Y stated that she and Suspect Z were involved in a verbal argument about their relationship when Suspect Z grabbed a knife and threatened to kill Complainant. Suspect Z was not at the location when officers arrived." No testimony, no physical evidence. Just a police officer telling the grand jurors what another police officer says another person says. Most baseless indictment in history? Get over yourself, Mr. DeLay. And welcome to the Texas criminal justice system.

Thursday, September 22, 2005

Dallas PD Turned a Blind Eye to Informant Problems Years Before Fake Drug Scandal

Evidence continues to grow that the Dallas Police Department was well aware of the problems with its procedures for handling confidential informants in its narcotics division years before the massive fake-drug scandal perpetrated by informants and (at least recklessly) detectives ensared many innocents. The Dallas Morning News has a very thorough article detailing the latest damning information, including the fact that the report documenting the informant problems years earlier was apparently never turned over to the independent panel investigating the scandal. The money quote comes from the supervisor of the lieutenant who prepared the damning report:
John Haley, a retired captain who supervised Lt. Cooper in 1998, said that he didn't remember his subordinate mentioning any problems uncovered in narcotics but that the lieutenant was known for being abrasive and stepping on people's toes.

"I was hearing from other people, other captains, that he was going around in their divisions ruffling feathers," Mr. Haley said. "And nitpicking on things."
Ruffling feathers? Nitpicking on things? This makes me want to throw up.

Wednesday, September 21, 2005

American Justice?

Imagine being on trial for a crime. Now imagine that at the trial, you have no right to be present. Neither does your attorney. Neither you nor your attorney have the right to confront your accuser or even to see all the evidence that is introduced against you. The person who set up these procedures for your trial is the same person who filed the charges against you. He is also the same person who handpicked the judge who will preside at your trial. Oh, and just for good measure, imagine that if you are convicted, you could be sentenced to death. Sound like the court system in a brutal, repressive dictatorship? Not even close. This is happening right now courtesy of our own government. The same government that is sending men and women into battle to die for freedom and liberty. How do these people have the nerve to call themselves patriotic Americans?

Here Comes Rita

Best wishes to my fellow Texans as they attempt to escape the wrath of Rita. And I am crossing my fingers that New Orleans and the rest of the Gulf Coast already suffering from Katrina are completely spared. Posted by Picasa

Tuesday, September 20, 2005


Two law professors are debating all week whether law school should be shortened to be just two years, instead of three. There are some good arguments on both sides--the best argument on the "get rid of it" side being that it would save students a year's worth of tuition. What do my fellow criminal defense lawyers think? Prosecutors? Personally, I loved my third year of law school. I had a job at a law firm lined up, so I wasn't worried about that. I was on the board of our public interest fellowship fundraising organization. I did a great immigration clinic. I took a couple more advanced criminal law courses. I worked part-time for a wonderful solo practitioner. I've heard the old saying, "In the first year of law school, they scare you to death; in the second year, they work you to death; and in the third year, they bore you to death." But for me, the third year was anything but boring because I took all the classes that I wanted to take, and did all the extracurriculars I wanted to do. It was the best year of the whole experience. I'd hate to see it go.

Blawg Review #24

Jaybeas Corpus does a fun job with this week's Blawg Review. The fact that he gives me a shout-out has no bearing on my opinion whatsoever.

Monday, September 19, 2005

Reefer Madness

I recently watched the Showtime movie Reefer Madness, mostly because Kristen Bell, star of Veronica Mars (Wednesday nights at 9ET/PT;8CT/MT on UPN) is in it. It is a parody of the old government movie warning about how smoking pot will make you craaaaazzzzy. Sadly, according to this article in Salon, it looks like the feds are back at it--taking out full page ads in major newspapers warning parents that smoking pot leads to schizophrenia. Seriously.

The Other CSI Effect

There has been a lot of moaning and groaning recently from prosecutors' corners about the so-called "CSI effect" where juries, presumably having watched to many episodes of CSI, are demanding high-tech forensic science in cases where they shouldn't. Most of the stories I have read about this were purely anecdotal, dealing with a prosecutor here or there citing a case here or there where the jury didn't convict because they hadn't analyzed the dirt and plant life found on the body or something ridiculous. In reality, I have found that if there is any real CSI effect, it tends to favor the prosecution. If jurors hear scientific testimony from a crime lab, they believe it, even when it shouldn't be believed. In fact, a lot of forensic "science" is not really science at all. It has never been subjected to rigorous scientific review standards such as a verifiable rate of error. DNA evidence is an example of forensic science that is real science, but even that is no good when it is performed by incompetent lab technicians. Things like ballistics, fingerprint analysis, hair analysis, and others would never pass muster in the non-forensic scientific world. Fingerprint analysis does not even have a uniform standard for determining when two prints are a match. Some experts require six points of comparison, others 8, still others 12. Many experts don't have any set number. They just use their "professional judgment" to pronounce something a match. This is a real problem, and it has been a major factor in wrongful convictions. The Houston Chronicle had an excellent column this weekend on the perils of forensic science, pointing out that false or flawed forensic science was a factor in 63% of a sample of wrongful convictions.

So, what is the solution? If the criminal courts in Texas ever seriously applied the Daubert standard like it is in civil cases, a lot of this mess could be avoided. All sorts of expert testimony is admitted in criminal cases here that would never get close to a jury in civil cases. Another idea is to separate crime labs from law enforcement. When forensic scientists actually work for the police or the state troopers, it's a lot harder to be certain about the work being that of independent scientists, and not agents of the police.

Friday, September 16, 2005

Law & Order in New Orleans

Update: Well, the AARP and FEMA couldn't get the judge who set this poor lady's bond to even return a phone call. But, one story on the AP wire and a judge quickly ordered her released on a personal recognizance bond. Now, I want to know who the original judge was, and what is going to be done about him or her. Setting bond at $50,000 for a 73-year-old woman charged with a crime with a maximum punishment of $500 is a gross abuse of power that should not be tolerated.
Original post:

A 73-year-old woman was arrested and charged with looting $63 worth of food from a New Orleans deli shortly after Hurricane Katrina. Even though the charge is a fine-only offense, the judge set her bond at $50,000--100 times the maximum fine she could be given if convicted. She is currently being housed in a state-prison with convicted felons. The owner of the store doesn't want her prosecuted, and witnesses indicate that she didn't take anything from the store at all. I guess I should be relieved that the N.O.P.D. didn't take Tom's advice and just shoot her.

Thursday, September 15, 2005

This Just In . . . Dallas County Jail Bad for Your Health

The alternative Dallas weekly, the Dallas Observer, has a long article detailing the horrid health care--both physical and mental--in the Dallas County jail. The story leading the article, about a young man who committed suicide just days after being returned from the state mental hospital, is very close to my heart. He was a client of one of my colleagues, and I went with her to visit his grandmother and brother right after he died. It was heartbreaking. Sadly, more than three years later, I don't think things are much better for our clients.

When I Was Homeless, You Threw Me in Jail . . .

Isn't that how the biblical saying goes? Wretched of the Earth, who is now doing public defender work, has quickly learned that it is a crime to be homeless in Texas. If the mayor of Dallas has her way, it may soon be a crime to put change in their coffee cups, too.

Half the Supreme Court Docket Unimportant to Senate Judiciary Committee

I share Professor Berman's disappointment in the failure of any of the senators on the Judiciary Committee to ask substantial and meaningful questions about criminal law of Chief Justice nominee John Roberts. As Prof. Berman points out, criminal cases make up almost half of the Supreme Court's docket, and Roberts has virtually no paper trail in the area of criminal law. Given that at least half (more if you count the 2nd Amendment) of the Bill of Rights relates to criminal justice issues, and the criminal justice system implicates life, death, and freedom, I was hoping some of the Senators would think it was important to see how Judge Roberts thinks about these issues. I guess not.

Should Giving Someone an STD Be a Crime?

Gideon wonders whether it is good or bad for public health to prosecute an HIV-positive person for failing to disclose his HIV status before having sex with and infecting another person. I can't get away from the issue, though, of whether it is appropriate to apply the criminal laws to these cases at all. And, if we do prosecute them, why does it seem that such prosecutions are basically limited to HIV/AIDS? Read my comments to Gideon's post and post your thoughts here.

False Arrest

Grits for Breakfast has a nice summary of a prosecutor group's internet discussion regarding the changes made to Texas's UCW (unlawfully carrying a weapon) statute. As you may recall from an earlier post, Harris County (Houston) DA Chuck Rosenthal has told the law enforcement officers in his county that the change in the law is irrelevant and they should continue to use the same standard in deciding whether to arrest someone for UCW, even if it appears evident at the time of arrest that the suspect meets all five prongs of the "traveling" defense presumption created by the new law. None of that matters, according to the almighty Rosenthal. Well, apparently some common sense prosecutors finally spoke up in this internet discussion and said that the new law does change things, and that, at trial, unless the state can prove beyond a reasonable doubt that one of the five prongs is not true, then the jury or judge must acquit the defendant. In essence, the presumption creates additional elements of the offense.

Of course, prevailing at trial, while very nice, is not the end of the story for those accused of a crime. At the least, because officers will be following Rosenthal's advice, innocent people will be arrested; taken to jail with all the inconvenience, indignity, and discomfort that provides; have to post a bond; have to hire an attorney; have to miss work or school to attend court hearings and possible a trial; and have to have a pending criminal offense hanging over their head until a trial. And that is for someone who is not indigent! For people like my clients, they will be arrested and unable to post bond. They will ultimately be forced to choose between remaining in jail so they can go to trial and be vindicated or pleading guilty to an offense they are demonstrably not guilty of just so they can get out of jail. And the desire to get out of jail is not motivated solely by the discomfort of being in jail. For many poor people, a couple weeks in jail can mean losing their job, their housing, and (at least temporarily) their children. If they are on disability, that will be discontinued, and they will have to go through the process of getting their benefits again which can mean going weeks without them, even after being released from jail. I am guessing that when these people are finally released from jail after being found not guilty or having their cases dismissed, Chuck Rosenthal won't be standing outside the door with a new apartment and job lined up for them. For a prosecutor to thumb his nose at the law and put people in jail that he knows he will never be able to convict is an outrageous abuse of power. And, like many issues in our society, this abuse of power imposes the harshest burdens on the most vulnerable and powerless among us--the poor. Not that I expect Chuck Rosenthal to give a damn.

Wednesday, September 14, 2005

DWI Punishments

In the comments section to the last post, Blondie was surprised, I think, that my client got probation for his third DWI. This got me wondering about how the various states punish DWI offenses. I'd be interested in anybody offering up their states system in the comments section. Here is the punishment scheme in Texas:

DWI - Class B misdemeanor - up to 180 days in county jail or probation

DWI 2nd - Class A misdemeanor - up to one year in county jail or probation (at least 3 days in county jail as a condition of probation)

DWI w/ child - state jail felony - 180 days - 2 years in state jail or probation

DWI 3rd - 3rd degree felony - 2-10 years in prison or probation (at least 10 days in jail as a condition of probation)

Intoxication assault - 3rd degree felony - 2-10 years in prison or probation (at least 30 days in jail as a condition of probation)

Intoxication manslaughter - 2nd degree felony - 2-20 years in prison or probation (at least 120 days in jail as a condition of probation)

As always, it's important to remember that Texas is unusual in that virtually every felony except capital murder can be punished with probation if you have not been convicted of a prior felony.

Tuesday, September 13, 2005

Unrealistic Expectations

A client was on a 10-year probation for felony DWI (3rd DWI conviction). He has not reported to probation in almost a year. He was finally served with his probation violation warrant when he was arrested for yet another DWI. He seemed to be shocked when I informed him that he will most likely have to serve some prison time on his cases.

FBI Violates Its Own Snitch Rules 9 Times Out of 10

A little while back, it was discovered that the FBI had not been handling their confidential informants very well. You know, stuff like tipping off organized crime figures to sealed indictments against them so they can flee, letting informants kill people, and then letting innocent people be convicted and sentenced to life in prison for those murders. No biggie. Anyway, in response to the public outcry over these failures, the FBI instituted some very strict rules to ensure proper use and oversight of snitches. As you might expect, everything is now running smoothly. Or not. According to a report in the New York Times, an investigation by the Department of Justice's Inspector General revealed that the FBI has been violating their own rules on confidential informants in 87% of their cases. But no need to worry because, according to the G-man who oversees the program, most of these violations were "not because of mal-intent but just the press of administrative requirements, and overlooking them." So, you know, they're not intentionally breaking the rules. They're just not bothering to learn them in the first place.

Monday, September 12, 2005

Hook 'em Horns!

Congratulations to my Texas Longhorns on beating Ohio State in front of over 100,000 screaming Ohio State fans. Hook 'em! Posted by Picasa

The New Chief and the Fourth Amendment

Grits for Breakfast has a great summary of some recent commentary regarding Chief Justice nominee John Roberts and the Fourth Amendment. In the twelve search and seizure cases Roberts decided as a federal appellate judge, he found the government reasonable every single time. One incident involved a 12-year-old arrested for eating a single french fry in the subway station. Another case involved an officer doing a pat-down search who admitted that he believed the object he felt was neither a weapon nor contraband, but rather a drug scale. No problem for Judge Roberts who decided that it could have been some sort of square weapon, thus justifying the continuing search. It appears that a Chief Justice Roberts will continue the Supreme Court's dangerous trend of whittling the protections of the Fourth Amendment down to nothing.

Blog Catch-Up

Sorry about the slow posting recently. It's been very busy around these parts the past week. Here are a few things you might have missed:

*Former North Carolina prosecutors are charged with misconduct by the State Bar for failing to disclose a substantial deal they had with the star witness in a capital murder case that resulted in the death penalty. (Link via Indefensible)

*Grits for Breakfast has a nice little rundown of the fun and excitement that goes with being a law enforcement snitch, er, confidential informant.

*TalkLeft notes the irony of the federal government sponsoring a "Freedom Walk" that you will be arrested for marching in if you are not pre-registered.

*I added this link a couple weeks ago, but I don't think I officially introduced it. Please check out The Wretched of the Earth, an informative and eloquent blog on poverty and the law.

Thursday, September 08, 2005

Score one for the good guys

We won our jury trial yesterday. Our client was charged with burglary of a habitation--a second degree felony punishable by up to 20 years in prison. We asked the jury to find him guilty only of criminal trespass to a habitation--a Class A misdemeanor punishable by up to a year in county jail. The jury deliberated for about 25 minutes before finding our client guilty of criminal trespass. The judge sentenced him to 30 days in jail which was less than his time already served. I was really impressed with our jury. They really thought critically about the evidence they heard and saw, and I truly believe they reached the right result. After the verdict, and after explaining the verdict to him two or three times, our client, who probably suffered some brain damage from all the blows to the head he received during the incident, asked what time he was supposed to be back the next day. Poor guy. Even though he won't have a felony conviction, he'll be paying for this for the rest of his life.

Wednesday, September 07, 2005

Trials and Tribulations

I apologize for the mini-break in blogging. I've been in a jury trial which will probably finish today. Details to come.

Friday, September 02, 2005

What the Hell is Going On?

Pardon my French, but what the hell is going on with the federal government's response to Hurricane Katrina? I cannot believe that, nearly four years after 9/11, our response to a natural disaster in a crowded urban area is this callous and inept. If terrorists had blown up the levee, thereby flooding the city, would the feds' response have been any better? The suffering, starvation, dehydration, disease, fear, violence, and absolute lawlessness going on in New Orleans and parts of Mississippi is inexcusable. And I damn sure wish all the politicians would stop holding so many damn press conferences announcing what they are supposedly mobilizing and preparing, and actually get some goddamn food, water, and medicine to those who are suffering and desperate. The president goes on TV and announces that the gas price spike is temporary and he has asked his daddy and Clinton to help raise money for rebuilding. Blah, blah, blah, who the hell cares???? These people don't need money for rebuilding right now, they don't need to be assured that gas prices will go down, and they don't need to hear politician after politician after agency head after agency head congratulated on all their tireless efforts. They need food. They need water. They need medicine. They need relief from the heat. They need law enforcement. What the hell is going on?

Update: Seth has been blogging about the hurricane all week, and he is also mad as hell at the government's response.

Thursday, September 01, 2005

I Hate Bully Cops

I hate bullying cops like Officer McDonald of Dayton, Ohio. He pepper sprayed a teenage girl because she refused his order to go to his patrol car, after he told her she was under arrest. Her crime? He claimed that she shortchanged him at the drive-thru window. The video of the entire incident makes clear that he had given her a $10 bill, not a $20 bill like he claimed. The city fired him, but an arbitrator ruled that he had to be rehired. Yeah, that guy deserves to be a cop.

DA Won't Retry Victim of Houston PD Crime Lab Incompetence and Corruption

George Rodriguez, who spent 17 years in prison for a child rape he did not commit, thanks to false scientific evidence courtesy of the Houston Police Department crime lab, will not be retried. Even "hang 'em high" DA Chuck Rosenthal couldn't bring himself to put Rodriguez on trial again. Rodriguez was one case of many that were botched by the grossly mismanaged HPD crime lab. A co-defendant in his case had fingered another man as his accomplice, but HPD said the scientific evidence excluded that man and pointed to Rodriguez. Oops. Turns out that the scientific evidence actually excluded Rodriguez and pointed to the man originally named as a co-defendant. That man cannot be prosecuted because the statute of limitations has run. It is not clear if the mistake was one of gross incompetence or pure fraud, but either way, this is a case of justice denied all around.

All is not roses for Mr. Rodriguez, however. Under Texas's compensation law for the wrongfully convicted, the district attorney must provide a letter attesting to the individual's "actual innocence" for him to even qualify. While Rosenthal hasn't said whether he would provide such a letter for Rosenthal, he has already refused to provide one for Josiah Sutton, another young man who was exonerated by retesting of DNA evidence originally supplied by the HPD crime lab, because the victim is "steadfast" in her identification, and he doesn't want to hell her she is a "liar." That is total bunk. The fact that the victim is steadfast in her identification is irrelevant. Scientific evidence exonerates him. And the idea that he would have to tell her she is a liar is equally preposterous. No one is saying the woman lied. She was mistaken--something that can easily be understood for someone who was traumatized in the way she was. But, no matter how horrible the ordeal was for her, Josiah Sutton should not have to continue to suffer because of her mistake. Rosenthal's refusal to provide the letter is inexcusable and the behavior befitting a stubborn child rather than an elected public servant.