From 2006 to 2010, Dallas police officer Theadora Ross was the respected head of the Dallas area Crime Stoppers program. You know Crime Stoppers: there are branches of Crime Stoppers all over the world, dedicated to solving crimes by allowing people to provide information that may lead to an arrest of an evildoer without having to directly deal with the police face to face.
Crime Stoppers Organizations Are Big Deals These Days, With Big Reward Funds
Being able to share what someone knows without having to give their name has proven to be an invaluable tool to law enforcement, and Crime Stoppers is viewed as a major crime-fighting tool in most law enforcement circles. Part of its reputation has come from the ability of Crime Stoppers to bring new information to police when investigations don't have much to go on, using money: Crime Stoppers offers rewards to folk who come forward and spill what they know. You've probably seen an advertisement or two, where a reward is offered for information in an unsolved case.
Dallas Cop Sentenced for Taking $250,000 From Dallas Crime Stoppers' Pot of Reward Money
Which means that Crime Stoppers has money in a pot for those rewards, something that Theadora Ross found just too, too tempting there at the Dallas Crime Stoppers office. Never mind that Theadora Ross was a Dallas police officer, who had sworn to perserve, protect, and defend: Officer Ross was sentenced this week to 46 months incarceration in a federal pen for income tax evasion and conspiracy to commit wire fraud (she pled guilty back in August 2012, there was no trial).
Dallas Police Department Senior Corporal Theodora Ross was arrested back in June 2010 by Dallas police while setting in her Crime Stoppers office; seems her pal, Malva Delley, spilled the beans on Ross after Delley was questioned by police. How did the cops find out? An observant bank teller became suspicious after seeing Delley collecting more than one CrimeStoppers reward, and picked up a phone.
Delley and Ross were both arrested, and Delley pled guilty back to one count of conspiracy to make a false statement to a financial institution in May 2011.
While Dallas citizens (and Dallas police) trusted Theodora Ross to run Crime Stoppers, seems that the Dallas police officer was busy creating fake tip numbers to be paid on Crime Stopper cases. These tip numbers are the tools to allow CrimeStoppers to pay rewards to anonymous tippers: present the tip number to the bank, and you are paid the reward in cash. It was an easy scheme: Delley would use Ross's fake tip number to collect the money from the bank as a Crime Stoppers reward.
The rewards added up. By the time that these two grifters were caught, they had taken a quarter of a million dollars from the North Texas Crime Commission, which funds the Dallas Crime Stoppers (along with Dallas court fines, Collin County court fines, fundraising efforts and charitable donations to Crime Stoppers). That's right: $250,000.00.
Ross Ordered to Pay Back the Money and To Pay Her Income Taxes, Too
Luckily, the money may be recouped. Ross has been ordered to pay $274,304.00 in restitution as part of her sentencing. That's covering losses to Crime Stoppers as well as taxes due: over a four year time period, it was found that Officer Ross failed to pay around $38,000 in income taxes on the $175,000 of income she received in her conning. That's right: the IRS expects to be paid even if the income is from an illegal grift.
Here's a question that hasn't been answered in the news coverage or the court opinions or FBI press releases: is that bank teller whose tip lead to the discovery of this huge fraud on CrimeStoppers going to get a reward for calling in her suspicions? Just wondering.
Showing posts with label Court Opinions. Show all posts
Showing posts with label Court Opinions. Show all posts
Wednesday, December 05, 2012
Wednesday, February 01, 2012
Texas Juries Issue Warnings to District Attorney, County Jail Officials But Don't Hold Anyone Criminally Liable.
Juries usually have a single, solid voice that answers "guilty" or "innocent," simple as that -- but that's not what is happening in the State of Texas today when it's public officials like the Harris County District Attorney's Office or those responsible for running the Travis County Jail that have been called on the carpet.
Austin Jury
This week, a federal jury down in Austin spent lots of time hearing testimony and reviewing evidence about the case of Rachel Jackson, a 21 year old woman who died while she was being held in the Del Valle Jail (part of Travis County) under a “psych lockdown.”
The Jackson family argued that Travis County and its jail psychiatrist, Dr. John S. Ford, were responsible for the young woman's tragic death in a jail cell because Dr. Ford prescribed thioridazine to inmate Jackson but he failed (among other things) to follow the warnings on the drug packaging to check her potassium levels as well as her heart's electrical activity before giving her the antipsychotic drug. If he had bothered to do so, the family argued, then he would have known that thioridazine can cause sudden death by causing the heart to beat out of its normal rhythm.
You can read the warning for yourself online: seems pretty serious and pretty long for someone - especially a doctor - to just disregard.
Here's the thing: most always, all we would know from the jury was their verdict. Period. However, in this case the federal trial judge, the Honorable Sam Sparks, approved the jury's request that a written statement they had compiled there in the jury room be read into the record.
So, the jury foreman stood up there in the courtroom, just as forepersons do whenever they announced they have reached a decision, and read a statement that the jury couldn't find that Travis County was the proximate cause of Rachel Jackson's death, they "...do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional Center."
Houston Jury
We've been monitoring the Grand Jury investigation of the Houston BAT Van Controversy (read all the details here) and now, the Grand Jury has spoken: the Harris County District Attorney's Office will not face any indictments for criminal wrongdoing.
Once again, however, there's the unusual twist to the story: the jury isn't speaking in the usual way, in the decision it has handed down. No. This jury has also sat together and drafted a joint statement, which has been released to the public.
A one-page statement from the jury was read by Grand Jury foreman Trisha Pollard, which criticized the Harris County District Attorney's Office for its "unexpected resistance" to the investigatory process and singled out Harris County prosecutor Rachel Palmer for invoking her Fifth Amendment right not to testify in order to avoid self-incrimination. The grand jury's statement also accused the District Attorney's office of investigating the grand jurors themselves as well as the special prosecutors assigned to oversee the case.
All that being revealed, the Grand Jury still found that "there was no evidence of a crime" on the part of the Harris County District Attorney's Office and so no indictments would be issued.
Jury Statements Are Worth What, Exactly?
These jury statements may make the jurors feel better, but legally they do squat. Verdicts are what count with juries. And in both of these instances, the public officials have been found innocent of a death and of tampering with the judicial process of fair trials, etc.
When juries have this much doubt and concern, one has to remember that where there is smoke there is fire and that something smells bad in Texas today.
Austin Jury
This week, a federal jury down in Austin spent lots of time hearing testimony and reviewing evidence about the case of Rachel Jackson, a 21 year old woman who died while she was being held in the Del Valle Jail (part of Travis County) under a “psych lockdown.”
The Jackson family argued that Travis County and its jail psychiatrist, Dr. John S. Ford, were responsible for the young woman's tragic death in a jail cell because Dr. Ford prescribed thioridazine to inmate Jackson but he failed (among other things) to follow the warnings on the drug packaging to check her potassium levels as well as her heart's electrical activity before giving her the antipsychotic drug. If he had bothered to do so, the family argued, then he would have known that thioridazine can cause sudden death by causing the heart to beat out of its normal rhythm.
You can read the warning for yourself online: seems pretty serious and pretty long for someone - especially a doctor - to just disregard.
There was also evidence presented at trial that the inmate told her Travis County jailers that her heart was racing, to which the jailer did not get her medically checked out; and that days later, she told a Travis County jail nurse that she was having chest pains, and that the jail nurse did not record in her file any of her vital signs at the time.
Here's the thing: most always, all we would know from the jury was their verdict. Period. However, in this case the federal trial judge, the Honorable Sam Sparks, approved the jury's request that a written statement they had compiled there in the jury room be read into the record.
So, the jury foreman stood up there in the courtroom, just as forepersons do whenever they announced they have reached a decision, and read a statement that the jury couldn't find that Travis County was the proximate cause of Rachel Jackson's death, they "...do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional Center."
Houston Jury
We've been monitoring the Grand Jury investigation of the Houston BAT Van Controversy (read all the details here) and now, the Grand Jury has spoken: the Harris County District Attorney's Office will not face any indictments for criminal wrongdoing.
Once again, however, there's the unusual twist to the story: the jury isn't speaking in the usual way, in the decision it has handed down. No. This jury has also sat together and drafted a joint statement, which has been released to the public.
A one-page statement from the jury was read by Grand Jury foreman Trisha Pollard, which criticized the Harris County District Attorney's Office for its "unexpected resistance" to the investigatory process and singled out Harris County prosecutor Rachel Palmer for invoking her Fifth Amendment right not to testify in order to avoid self-incrimination. The grand jury's statement also accused the District Attorney's office of investigating the grand jurors themselves as well as the special prosecutors assigned to oversee the case.
All that being revealed, the Grand Jury still found that "there was no evidence of a crime" on the part of the Harris County District Attorney's Office and so no indictments would be issued.
Jury Statements Are Worth What, Exactly?
These jury statements may make the jurors feel better, but legally they do squat. Verdicts are what count with juries. And in both of these instances, the public officials have been found innocent of a death and of tampering with the judicial process of fair trials, etc.
When juries have this much doubt and concern, one has to remember that where there is smoke there is fire and that something smells bad in Texas today.
Wednesday, December 07, 2011
Mistrial Declared in Criminal Trial of Dallas County Constable Derick Evans
A jury had been chosen and opening statements had been given by Marquette Wolf as Special Prosecutor and the defense for Dallas County Constable Derick Evans and on Tuesday, the trial had witnesses on the stand in the criminal trial where Constable Evans faced charges of engaging in organized crime.
There were some problems: one juror was late, another called in with an emergency and had to be replaced with an alternate, and witness Jim Foster, former Dallas County Judge, couldn't respond to his subpoena to appear and testify because he's in the hospital having just had serious lung surgery.
But nothing was as big a problem as what happened to cause the trial court to declare a mistrial in the case. Seems that after the prosecution put on its case and Evans presented his defense, the jury was sent back to deliberate and got stuck.
Judge Tracy Holmes got a note from the jury room that the twelve jurors were "hopelessly deadlocked," and then another one, and then a third. Deadlocked, Deadlocked, Deadlocked. Stubborn folk on both sides of guilty versus innocent. (The Dallas Morning News reports they were 7 to 5, guilty vs. innocent.)
So Judge Holmes declared a mistrial and Constable Evans went back to work and the prosecution told the media that they're not giving up. Another trial is being scheduled for April 2012.
What Did Dallas County Constable Derick Evans Allegedly Do?
Formally, Constable Evans has been accused of participating in organized crime. Sounds very TV Law and Order, doesn't it, until you learn that he's purportedly run a raffle to get funds to run his election campaign and allegedly pressured his deputies and staff to buy and promote the $50 raffle tickets. Under Texas law, only certain groups (like churches) are legally allowed to run raffles to raise money. Now, it's sounding less like TV's Law and Order isn't it?
And, here's a big question -- what about the media reports about other local campaign raffles, are they going to get prosecuted as well?
There were some problems: one juror was late, another called in with an emergency and had to be replaced with an alternate, and witness Jim Foster, former Dallas County Judge, couldn't respond to his subpoena to appear and testify because he's in the hospital having just had serious lung surgery.
But nothing was as big a problem as what happened to cause the trial court to declare a mistrial in the case. Seems that after the prosecution put on its case and Evans presented his defense, the jury was sent back to deliberate and got stuck.
Judge Tracy Holmes got a note from the jury room that the twelve jurors were "hopelessly deadlocked," and then another one, and then a third. Deadlocked, Deadlocked, Deadlocked. Stubborn folk on both sides of guilty versus innocent. (The Dallas Morning News reports they were 7 to 5, guilty vs. innocent.)
So Judge Holmes declared a mistrial and Constable Evans went back to work and the prosecution told the media that they're not giving up. Another trial is being scheduled for April 2012.
What Did Dallas County Constable Derick Evans Allegedly Do?
Formally, Constable Evans has been accused of participating in organized crime. Sounds very TV Law and Order, doesn't it, until you learn that he's purportedly run a raffle to get funds to run his election campaign and allegedly pressured his deputies and staff to buy and promote the $50 raffle tickets. Under Texas law, only certain groups (like churches) are legally allowed to run raffles to raise money. Now, it's sounding less like TV's Law and Order isn't it?
And, here's a big question -- what about the media reports about other local campaign raffles, are they going to get prosecuted as well?
Monday, March 01, 2010
Miranda Warnings Changed By US Supreme Court Last Week - And It's Not Good News
The United States Supreme Court released two opinions last week that directly impact what we've all understood regarding Miranda v. Arizona, 384 U.S. 436 (1966).
Now, according to the Supreme Court, confessions that wouldn't be admitted at trial in the past WILL BE allowed as evidence at trial -- despite the reality that law enforcement interviewed individuals and got those confessions in ways that weren't considered legal until last week.
Florida v. Powell
First came Florida v. Powell, 08-1175 ___ U.S. ___ (2010). Here, the Court found that even though Florida's Miranda Warning does not state to the individual clearly and directly that he or she has a right to have a lawyer present when they are being questioned by police, the Florida warning is okay.
Guess the Court is depending upon all those TV shows to let everyone know that when the cops start to ask you questions, you have a constitutional right to an attorney.
Maryland v. Shatzer
Then, two days later, came Maryland v. Shatzer, 08-680, ___ U.S. ___ (2010). Here, the "Edwards v. Arizona rule" gets whammied. That rule was clear: when an individual invoked his Miranda rights ("get me a lawyer!") then that's it. Even if the man or woman says something later that amounts to a "nevermind" it didn't matter. The cops couldn't question any further and it be okay under the law.
Now, it's a big huge mess. The Supreme Court tells us that the Edwards v. Arizona rule shouldn't be an "eternal" bar to police questioning someone. Now, if there's a 14 day long "break in custody" between the police trying to question the individual, then a confession after that two week interval is going to be just fine. What??? Really???
"That provides plenty of time for the suspect to get re-acclimated to his normal life ... and to shake off any residual coercive effect of his prior custody," opines Justice Scalia in the decision.
What about if the individual is spending those two weeks behind bars? Doesn't matter, apparently: Shatzer was in prison during the "break in custody" and the Supreme Court didn't think that was a big deal.
Wonder how many confessions we'll see in the future that aren't dated at least 14 days after the individual was initially questioned by the police?
Now, according to the Supreme Court, confessions that wouldn't be admitted at trial in the past WILL BE allowed as evidence at trial -- despite the reality that law enforcement interviewed individuals and got those confessions in ways that weren't considered legal until last week.
Florida v. Powell
First came Florida v. Powell, 08-1175 ___ U.S. ___ (2010). Here, the Court found that even though Florida's Miranda Warning does not state to the individual clearly and directly that he or she has a right to have a lawyer present when they are being questioned by police, the Florida warning is okay.
Guess the Court is depending upon all those TV shows to let everyone know that when the cops start to ask you questions, you have a constitutional right to an attorney.
Maryland v. Shatzer
Then, two days later, came Maryland v. Shatzer, 08-680, ___ U.S. ___ (2010). Here, the "Edwards v. Arizona rule" gets whammied. That rule was clear: when an individual invoked his Miranda rights ("get me a lawyer!") then that's it. Even if the man or woman says something later that amounts to a "nevermind" it didn't matter. The cops couldn't question any further and it be okay under the law.
Now, it's a big huge mess. The Supreme Court tells us that the Edwards v. Arizona rule shouldn't be an "eternal" bar to police questioning someone. Now, if there's a 14 day long "break in custody" between the police trying to question the individual, then a confession after that two week interval is going to be just fine. What??? Really???
"That provides plenty of time for the suspect to get re-acclimated to his normal life ... and to shake off any residual coercive effect of his prior custody," opines Justice Scalia in the decision.
What about if the individual is spending those two weeks behind bars? Doesn't matter, apparently: Shatzer was in prison during the "break in custody" and the Supreme Court didn't think that was a big deal.
Wonder how many confessions we'll see in the future that aren't dated at least 14 days after the individual was initially questioned by the police?
Wednesday, November 12, 2008
Court Opinions: Melendez-Diaz Oral Arguments and the Need to Confront Forensic Scientists on the Stand
You've seen CSI.
Yes, you have -- whether you've watched Gil Grissom in the original CSI: Crime Scene Investigation, or Horatio Caine in CSI - Miami or Mac Taylor in CSI:NY (which I can never take too seriously, because everytime I see that guy's face, I hear "Lt. Dannnnnn" in Forrest Gump's drawl).
Well, in whatever version of CSI you're talking about, these guys are busy being lab rats one minute, and cops with guns the next. Maybe Miami does it more than Vegas, but it rings true for all three.
Forensic Scientist - Cops
As well it should -- in real life, the forensic science pros in law enforcement think of themselves just as much as police officers as they do science gurus. They just don't have the same cool lighting effects in the labs or the same tight low-cut shirts as their TV counterparts.
Confronting the Forensic Reports Is A Big Defense Problem
Which has been a big problem in the courtroom, because there has been a big brouhaha over whether or not criminal defense attorneys have the right to confront these forensic guys (and gals) over their reports and such -- on the witness stand, in front of the jury.
After all, a criminal defendant has the right to confront his (or her) accusers under the U.S. Constitution. Why can't they confront these science folk on the neutrality and objectivity of their lab findings?
Prosecutors, of course, want to introduce forensic reports as if they are the Holy Grail, never to be questioned by anyone -- after all, science is science right? District attorneys argue that criminal defense attorneys are just trying to manipulate things when they want to bring the forensic scientist into the courtroom: the lab results say what they say, they give routine results, and having some white-coat witness take the stand is just an attorney playing games.
Defense attorneys, meanwhile, believe that not only are these forensic professionals merely human, and therefore subject to making mistakes, but these pros see themselves as law enforcement -- and are far from impartial in their work. They're not independent third parties from some faraway laboratory, wearing monocles and speaking with a slight European accent.
Things May Be Changing: the pending case of Melendez-Diaz v. Massachusetts
The US Supreme Court has just heard oral arguments in the case of Melendez-Diaz v. Massachusetts. Looks like they'll be deciding really soon whether or not forensic experts should be subject to confrontation by the defense.
What does this mean to you and me?
Seems that the High Court is considering the possibility that a forensic expert who has a paycheck signed by the same kahunas that sign the beat cop's paycheck might have a bias or be subject to err on the side of the prosecution. And if that's true, then the defense attorney should be able to cross-examine that forensic expert on the witness stand. That's the right thing to do.
Looks like the Supremes watch a bit of CSI, too, doesn't it?
Sources:
New York Times
http://www.nytimes.com/2008/11/11/washington/11scotus.html?_r=1&oref=slogin
Brief for Petitioner:
http://www.nytimes.com/2008/11/11/washington/11scotus.html?_r=1&oref=slogin
Brief for Respondent:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-591_RespondentAmCu35StatesDC.pdf
For more discussion on Melendez-Diaz v. Massachusetts, check out:
Grits for Breakfast
http://gritsforbreakfast.blogspot.com/2008/11/pragmatism-vs-confrontation-frames.html
SCOTUSBlog
http://www.scotusblog.com/wp/argument-preview-melendez-diaz-v-massachusetts/
Yes, you have -- whether you've watched Gil Grissom in the original CSI: Crime Scene Investigation, or Horatio Caine in CSI - Miami or Mac Taylor in CSI:NY (which I can never take too seriously, because everytime I see that guy's face, I hear "Lt. Dannnnnn" in Forrest Gump's drawl).
Well, in whatever version of CSI you're talking about, these guys are busy being lab rats one minute, and cops with guns the next. Maybe Miami does it more than Vegas, but it rings true for all three.
Forensic Scientist - Cops
As well it should -- in real life, the forensic science pros in law enforcement think of themselves just as much as police officers as they do science gurus. They just don't have the same cool lighting effects in the labs or the same tight low-cut shirts as their TV counterparts.
Confronting the Forensic Reports Is A Big Defense Problem
Which has been a big problem in the courtroom, because there has been a big brouhaha over whether or not criminal defense attorneys have the right to confront these forensic guys (and gals) over their reports and such -- on the witness stand, in front of the jury.
After all, a criminal defendant has the right to confront his (or her) accusers under the U.S. Constitution. Why can't they confront these science folk on the neutrality and objectivity of their lab findings?
Prosecutors, of course, want to introduce forensic reports as if they are the Holy Grail, never to be questioned by anyone -- after all, science is science right? District attorneys argue that criminal defense attorneys are just trying to manipulate things when they want to bring the forensic scientist into the courtroom: the lab results say what they say, they give routine results, and having some white-coat witness take the stand is just an attorney playing games.
Defense attorneys, meanwhile, believe that not only are these forensic professionals merely human, and therefore subject to making mistakes, but these pros see themselves as law enforcement -- and are far from impartial in their work. They're not independent third parties from some faraway laboratory, wearing monocles and speaking with a slight European accent.
Things May Be Changing: the pending case of Melendez-Diaz v. Massachusetts
The US Supreme Court has just heard oral arguments in the case of Melendez-Diaz v. Massachusetts. Looks like they'll be deciding really soon whether or not forensic experts should be subject to confrontation by the defense.
What does this mean to you and me?
Seems that the High Court is considering the possibility that a forensic expert who has a paycheck signed by the same kahunas that sign the beat cop's paycheck might have a bias or be subject to err on the side of the prosecution. And if that's true, then the defense attorney should be able to cross-examine that forensic expert on the witness stand. That's the right thing to do.
Looks like the Supremes watch a bit of CSI, too, doesn't it?
Sources:
New York Times
http://www.nytimes.com/2008/11/11/washington/11scotus.html?_r=1&oref=slogin
Brief for Petitioner:
http://www.nytimes.com/2008/11/11/washington/11scotus.html?_r=1&oref=slogin
Brief for Respondent:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-591_RespondentAmCu35StatesDC.pdf
For more discussion on Melendez-Diaz v. Massachusetts, check out:
Grits for Breakfast
http://gritsforbreakfast.blogspot.com/2008/11/pragmatism-vs-confrontation-frames.html
SCOTUSBlog
http://www.scotusblog.com/wp/argument-preview-melendez-diaz-v-massachusetts/
Wednesday, October 29, 2008
JUDGE WATCH: Austin Judge Thinks His Power Includes Ordering Woman Not to Get Pregnant
Here in Texas, even a state district judge can be a man with a hat and no cattle ....
Last month, Travis County Judge Charlie Baird faced off against 20-year-old Felicia Salazar, who admitted to the court that she had failed to properly protect her 19-month-old daughter from the child's father - who had beat the baby, breaking bones and causing other injuries.
Felicia and the baby daddy both had their parental rights to the child terminated, and the little girl was placed in foster care. Meanwhile, the father was sentenced to 15 years in prison.
When it came time for Felicia Salazar to face the music, she stood before Judge Baird with no prior criminal history and an acknowledgement that she'd failed her daughter -- and with her defense attorney, she'd entered into a plea bargain with prosecutors, where she would get 10 years probation. It was time for the Judge to impose conditions upon that probation, and usually judges require things like community service and mental health treatment.
Judge Baird did impose standard conditions to Felicia's probation: she has to perform 100 hours of community service, and she's got to undergo a mental health assessment. But Judge Baird went one further: he ordered Felicia NOT TO HAVE CHILDREN FOR THE NEXT TEN YEARS.
Can a judge really order a woman not to have a child? Really???
Nope. Of course, the Judge thinks so. He's told the media that it's a reasonable condition of her probation. And, there are those who would argue that it's all too often that parents who have had parental rights terminated just repeat the abuse cycle when they bear new offspring. They'd see this as avoiding a tragedy, and applaud Judge Baird's efforts.
They'd be wrong. This just isn't constitutional, period. A trial court judge can't tell someone that they can't have children. It's exceeding his power. Blatantly.
1. A man elected to preside over criminal proceedings doesn't have the authority to tell a 20 year old woman that she can't have a baby at any time, much less until she's 30 years old.
2. Even assuming that somehow this action could be justified, this would still be overreaching in this situation -- the woman has no prior history with criminal authorities or Child Protective Services, and she herself was not the one who committed the violent acts. I believe we can all read between the lines here: she looks to be a woman who cowered before an abusive boyfriend, and was too weak to stop him. What about getting her classes in parenting? life management? individual counseling?
3. How enforcable is this? What if she does get pregnant - is the Judge going to order that she have an abortion, in addition to revoking her probation and sending her to jail? Ridiculous.
Dangerous precedent being set here -- and in Wisconsin.
As much as this sounds like some story out of the annals of Judge Roy Bean, it appears that Felicia may be stuck with Judge Baird's ruling. Her attorney hasn't filed an appeal. Heck, Felicia may be counting her blessings that she's not behind bars, and she's happy enough right now.
If so, Felicia's challenge may come up later -- when she gets pregnant, and some probation officer tries to throw her in jail for violating a condition of her probation. Then, her lawyer will get this arrogant, unconstitutional ruling overthrown -- hopefully.
Why hopefully? Because up in Wisconsin, there sits on the books a case where a father of 10 kids got caught for not paying child support. As a condition of his probation, he was ordered not to father any more children. The Wisconsin Supreme Court upheld that decision.
Criminal Defense is all about Protecting Our Rights
Every single criminal defense attorney in this country gets questioned on almost a daily basis with a version of the same query: 'how can you represent those bad, guilty people who did horrible things to good folk?'
And, every single criminal defense attorney in this country has to remind people on almost a daily basis that those accused clients, in each and every case, are testing the strength of our judicial system -- a system of rights that serves to provide justice and freedom for each and every one of us.
The System of Rights that Protects All of Us is Weaker Today Because of this Decision
Felicia Salazar admitted to not being a good mother. Judge Baird thinks he's doing the right thing by keeping her from becoming a mother again. But, to you and to me, a constitutional right has been disrespected and weakened here and we should all be very concerned about this.
Any time the rights of any single individual are denied, one brick in that system of freedoms we all hold dear falls away.
Source:
Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/09/12/0912salazar.html
Last month, Travis County Judge Charlie Baird faced off against 20-year-old Felicia Salazar, who admitted to the court that she had failed to properly protect her 19-month-old daughter from the child's father - who had beat the baby, breaking bones and causing other injuries.
Felicia and the baby daddy both had their parental rights to the child terminated, and the little girl was placed in foster care. Meanwhile, the father was sentenced to 15 years in prison.
When it came time for Felicia Salazar to face the music, she stood before Judge Baird with no prior criminal history and an acknowledgement that she'd failed her daughter -- and with her defense attorney, she'd entered into a plea bargain with prosecutors, where she would get 10 years probation. It was time for the Judge to impose conditions upon that probation, and usually judges require things like community service and mental health treatment.
Judge Baird did impose standard conditions to Felicia's probation: she has to perform 100 hours of community service, and she's got to undergo a mental health assessment. But Judge Baird went one further: he ordered Felicia NOT TO HAVE CHILDREN FOR THE NEXT TEN YEARS.
Can a judge really order a woman not to have a child? Really???
Nope. Of course, the Judge thinks so. He's told the media that it's a reasonable condition of her probation. And, there are those who would argue that it's all too often that parents who have had parental rights terminated just repeat the abuse cycle when they bear new offspring. They'd see this as avoiding a tragedy, and applaud Judge Baird's efforts.
They'd be wrong. This just isn't constitutional, period. A trial court judge can't tell someone that they can't have children. It's exceeding his power. Blatantly.
1. A man elected to preside over criminal proceedings doesn't have the authority to tell a 20 year old woman that she can't have a baby at any time, much less until she's 30 years old.
2. Even assuming that somehow this action could be justified, this would still be overreaching in this situation -- the woman has no prior history with criminal authorities or Child Protective Services, and she herself was not the one who committed the violent acts. I believe we can all read between the lines here: she looks to be a woman who cowered before an abusive boyfriend, and was too weak to stop him. What about getting her classes in parenting? life management? individual counseling?
3. How enforcable is this? What if she does get pregnant - is the Judge going to order that she have an abortion, in addition to revoking her probation and sending her to jail? Ridiculous.
Dangerous precedent being set here -- and in Wisconsin.
As much as this sounds like some story out of the annals of Judge Roy Bean, it appears that Felicia may be stuck with Judge Baird's ruling. Her attorney hasn't filed an appeal. Heck, Felicia may be counting her blessings that she's not behind bars, and she's happy enough right now.
If so, Felicia's challenge may come up later -- when she gets pregnant, and some probation officer tries to throw her in jail for violating a condition of her probation. Then, her lawyer will get this arrogant, unconstitutional ruling overthrown -- hopefully.
Why hopefully? Because up in Wisconsin, there sits on the books a case where a father of 10 kids got caught for not paying child support. As a condition of his probation, he was ordered not to father any more children. The Wisconsin Supreme Court upheld that decision.
Criminal Defense is all about Protecting Our Rights
Every single criminal defense attorney in this country gets questioned on almost a daily basis with a version of the same query: 'how can you represent those bad, guilty people who did horrible things to good folk?'
And, every single criminal defense attorney in this country has to remind people on almost a daily basis that those accused clients, in each and every case, are testing the strength of our judicial system -- a system of rights that serves to provide justice and freedom for each and every one of us.
The System of Rights that Protects All of Us is Weaker Today Because of this Decision
Felicia Salazar admitted to not being a good mother. Judge Baird thinks he's doing the right thing by keeping her from becoming a mother again. But, to you and to me, a constitutional right has been disrespected and weakened here and we should all be very concerned about this.
Any time the rights of any single individual are denied, one brick in that system of freedoms we all hold dear falls away.
Source:
Austin American Statesman
http://www.statesman.com/news/content/news/stories/local/09/12/0912salazar.html
Saturday, October 18, 2008
Full Text of Vasilas Opinions - Oct 2008 Memorandum Opinion by Judge Sandoval and March 2006 Opinion of Texas Court of Criminal Appeals
For those interested in reading the details in the Vasilas case, including the memorandum opinion just released by Judge Sandoval this month (finding Jim Vasilas "not guilty"), here they are (click on each link):
October 6, 2008, Memorandum Opinion of Judge Charles Sandoval, Cause No. 380-82535-03 in the 380th Judicial District Court of Collin County, styled State of Texas v. James Vasilas; and
March 22, 2006 Opinion (unanimous) of the Texas Court of Criminal Appeals, Cause No. PD-0351-05 and styled State of Texas, Appellant, v. James Vasilas, Appellee on petition for discretionary review from the Fifth Court of Appeals of Collin County
In case you'd like to read the underlying section of the Texas Penal Code, check it out here:
Texas Penal Code 37.10(a)(5)
Texas Penal Code 37.01 (Definitions)
Note the text of the following Penal Code definitions:
(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.
(2) "Governmental record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; ....
October 6, 2008, Memorandum Opinion of Judge Charles Sandoval, Cause No. 380-82535-03 in the 380th Judicial District Court of Collin County, styled State of Texas v. James Vasilas; and
March 22, 2006 Opinion (unanimous) of the Texas Court of Criminal Appeals, Cause No. PD-0351-05 and styled State of Texas, Appellant, v. James Vasilas, Appellee on petition for discretionary review from the Fifth Court of Appeals of Collin County
In case you'd like to read the underlying section of the Texas Penal Code, check it out here:
Texas Penal Code 37.10(a)(5)
Texas Penal Code 37.01 (Definitions)
Note the text of the following Penal Code definitions:
(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.
(2) "Governmental record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; ....
Wednesday, October 15, 2008
District Judge Charles Sandoval's Memo Opinion in the Vasilas Case: Jim Vasilas Not Guilty, But the Story's Not Over
Along with almost every other attorney in the State of Texas, I've been following James Vasilas' case as its traveled the appellate highways (e.g., my May 1, 2006 post). Now, Judge Charles Sandoval has issued a memorandum opinion from his bench on the 380th Judicial District Court of Collin County that should be a welcomed relief not only to Brother Vasilas, but to some degree to lawyers everywhere.
For those of you who aren't well aquainted with this case, here's a brief wrap-up:
James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.
All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.
Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)
An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.
At the get-go, the judge quashed the indictment. The DA appealled and the games began.
In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.
Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.
Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.
Then comes Judge Sandoval ....
On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:
"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.
"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.
"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"
The Bottom Line
It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.
Congratulations, Jim.
For those of you who aren't well aquainted with this case, here's a brief wrap-up:
James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.
All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.
Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)
An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.
At the get-go, the judge quashed the indictment. The DA appealled and the games began.
In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.
Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.
Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.
Then comes Judge Sandoval ....
On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:
"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.
"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.
"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"
The Bottom Line
It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.
Congratulations, Jim.
Monday, May 01, 2006
Collin County Justice
Questionable Collin County Indictments Get New Life
Collin County prosecutor Chris Milner has had some mixed results. However, the Texas Court of Criminal Appeals recently breathed new life into Mr. Milner's case against Dallas Attorney Jim Vasilas.
As far as the Court of Criminal Appeals is concerned, a lawyer that makes a mistake in a civil Petition he filed can be charged with Felony Tampering With a Governmental Record. After both a Collin County District Judge and the Dallas Court of Appeals logically reasoned that a Petition generated by and filed by a lawyer could not be a "governmental record", the high court somehow found that it could be part of the definition set by the legislature. Unless the Dallas Court of Appeals rules that the Rule 11 provisions of the Texas Rules of Civil Procedure is in pari materia to this type of obtuse allegation, the Court of Crimial Appeals cleared the way to prosecuting all civil and criminal lawyers for making mistakes in their Petitions or other records typically filed by lawyers in Texas.
Collin County prosecutor Chris Milner has had some mixed results. However, the Texas Court of Criminal Appeals recently breathed new life into Mr. Milner's case against Dallas Attorney Jim Vasilas.
As far as the Court of Criminal Appeals is concerned, a lawyer that makes a mistake in a civil Petition he filed can be charged with Felony Tampering With a Governmental Record. After both a Collin County District Judge and the Dallas Court of Appeals logically reasoned that a Petition generated by and filed by a lawyer could not be a "governmental record", the high court somehow found that it could be part of the definition set by the legislature. Unless the Dallas Court of Appeals rules that the Rule 11 provisions of the Texas Rules of Civil Procedure is in pari materia to this type of obtuse allegation, the Court of Crimial Appeals cleared the way to prosecuting all civil and criminal lawyers for making mistakes in their Petitions or other records typically filed by lawyers in Texas.
Tuesday, May 03, 2005
"Government Crossed the Line . . ."
The Fifth Circuit recently reversed and remanded for resentencing U.S. v. Munoz. Munoz had signed a plea agreement with the Government wherein he and the Federal Prosecutor stipulated to a total offense level 25 (71 months max) in exchange for his plea of guilty to the wire fraud, mail fraud and money laundering counts in the indictment. The Presentence Report sought the application an "abuse of trust" enhancement to his sentence and a higher calculation for the loss amount. The PSR recommended a total offense level 29. What is worse, the Federal Prosecutor urged the court to apply the "abuse of trust" enhancement, in violation of his own plea agreement. Of course, the court went along with the Government and sentenced Mr. Munoz to 90 months.
Who Abused Their Trust?
The Fifth wrote that this type of prosecutorial slight of hand "crossed the line . . ." In particular, the Court found that the Governement breached the plea agreement by advocating the "abuse of trust" enhancement.
Read the opinion
Monday, April 18, 2005
FORT WORTH COA DISMISSED MURDER PROSECUTION DUE TO PROSECUTOR MISCONDUCT DURING TRIAL
The Fort Worth Court of Appeals issued a second opinion on remand from the Texas Court of Criminal Appeals concerning alleged misconduct by a Tarrant County Assistant District Attorney. For the second time, the Fort Worth Appeals Court found the prosecutor's trial tactics to be intentional and/or reckless prosecutorial misconduct such that jeopardy attached after the trial judge declared a mistrial. In particular, the court cited the prosecutor's tactic of repeatedly commenting on the Defendant's invocation of her right to remain silent as intentional or reckless misconduct.
Although the trial Judge, Judge Sharon Wilson, found that the prosecutor's actions did not amount to reckless or intentional misconduct, the Court of Appeals found that Judge Wilson abused her discretion in this regard. The Court of Appeals dismissed the pending indictment against Ms. Lewis.
THE CASE WAS GOING BADLY FOR THE STATE
The Court of Appeals noted in it's analysis that "The case was going badly for the state." The court noted that the prosecutor had failed to call the responding or investigating officers to testify and failed to offer the Defendant's prior statement into evidence before the Defendant took the witness stand. Once Ms. Lewis testified that the complainant had twice raped her and that the weapon accidentally discharged, the prosecutor twice attempt to cross-examine her with her refusal to talk to the investigating detective instead of impeaching her with her prior statement. A link to the opinion: Texas Judiciary Online - HTML Opinion
The Fort Worth Court of Appeals issued a second opinion on remand from the Texas Court of Criminal Appeals concerning alleged misconduct by a Tarrant County Assistant District Attorney. For the second time, the Fort Worth Appeals Court found the prosecutor's trial tactics to be intentional and/or reckless prosecutorial misconduct such that jeopardy attached after the trial judge declared a mistrial. In particular, the court cited the prosecutor's tactic of repeatedly commenting on the Defendant's invocation of her right to remain silent as intentional or reckless misconduct.
Although the trial Judge, Judge Sharon Wilson, found that the prosecutor's actions did not amount to reckless or intentional misconduct, the Court of Appeals found that Judge Wilson abused her discretion in this regard. The Court of Appeals dismissed the pending indictment against Ms. Lewis.
THE CASE WAS GOING BADLY FOR THE STATE
The Court of Appeals noted in it's analysis that "The case was going badly for the state." The court noted that the prosecutor had failed to call the responding or investigating officers to testify and failed to offer the Defendant's prior statement into evidence before the Defendant took the witness stand. Once Ms. Lewis testified that the complainant had twice raped her and that the weapon accidentally discharged, the prosecutor twice attempt to cross-examine her with her refusal to talk to the investigating detective instead of impeaching her with her prior statement. A link to the opinion: Texas Judiciary Online - HTML Opinion
Friday, April 15, 2005
TEXARKANA COA REVERSES CONVICTION ON CHILD PORN CASE, BAD SEARCH WARRANT (Elardo v. State)
"Reliable Source" is reliable because the source is reliabe . . . get it?
Mr. Elardo was convicted of multiple counts of child porn possession and sentenced to 20 years TDC.
The daughter-in-law of Mr. Elardo's wife tipped off police to child porn in Mr. Elardo's home. The police went to their local Justice of the Peace (not licensed to practice law) who signed their search warrant. The search warrant stated that the informant was a "reliable source", but stated no other facts in support of this contention. Justice Ross wrote that such a statement was conclusory without any "basis of knowledge" contained in the search warrant indicating the trustworthiness of this informant. The State urged the court to apply a more relaxed standard on the reliability issue because the informant was a private citizen whose only contact with the police was to witness a crime. Justice Ross declined, noting that there is nothing in the search warrant affidavit that puts this informant into the good samaritan category of tipster.
Texas Judiciary Online - HTML Opinion
"Reliable Source" is reliable because the source is reliabe . . . get it?
Mr. Elardo was convicted of multiple counts of child porn possession and sentenced to 20 years TDC.
The daughter-in-law of Mr. Elardo's wife tipped off police to child porn in Mr. Elardo's home. The police went to their local Justice of the Peace (not licensed to practice law) who signed their search warrant. The search warrant stated that the informant was a "reliable source", but stated no other facts in support of this contention. Justice Ross wrote that such a statement was conclusory without any "basis of knowledge" contained in the search warrant indicating the trustworthiness of this informant. The State urged the court to apply a more relaxed standard on the reliability issue because the informant was a private citizen whose only contact with the police was to witness a crime. Justice Ross declined, noting that there is nothing in the search warrant affidavit that puts this informant into the good samaritan category of tipster.
Texas Judiciary Online - HTML Opinion
Sunday, April 10, 2005
"DEGARMO DOCTRINE" ON THE WAY OUT?
Are appellate rights waived if a Defendant is convicted and he or she admits guilt in punishment? In Degarmo v. State, the Texas Court of Criminal Appeals ruled that a Defendant who admitted guilt in the punishment phase of his trial could not later appeal based upon insufficient evidence.
The Corpus Chrisi Court of Appeals recently rejected the "Degarmo Doctrine." In a well reasoned opinion, Judge Garza noted that the Court of Criminal Appeals' 1985 opinion was really just dicta on the waiver issue and declined to apply this oft cited and feared rule.
I feel confident that the Texas Court of Criminal Appeals will weigh in on this issue. Read the opinion below:
Texas Judiciary Online - HTML Opinion
Are appellate rights waived if a Defendant is convicted and he or she admits guilt in punishment? In Degarmo v. State, the Texas Court of Criminal Appeals ruled that a Defendant who admitted guilt in the punishment phase of his trial could not later appeal based upon insufficient evidence.
The Corpus Chrisi Court of Appeals recently rejected the "Degarmo Doctrine." In a well reasoned opinion, Judge Garza noted that the Court of Criminal Appeals' 1985 opinion was really just dicta on the waiver issue and declined to apply this oft cited and feared rule.
I feel confident that the Texas Court of Criminal Appeals will weigh in on this issue. Read the opinion below:
Texas Judiciary Online - HTML Opinion
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