More fun with science

Here's a document from the Southwestern Institute of Forensic Sciences in Dallas regarding an interesting finding on a proficiency test.

According to the supplier of the serology proficiency test (SERI), the test slide in question contained seminal fluid but no sperm cells. However, the lab tech said her test came back positive for both. The supervisor of forensic biology, Dr. Stacy McDonald, reran the test and claimed she, too, found a single sperm cell on the slide.

Now that raises an interesting conundrum - was the test supplier mistaken in what was on that particular slide or was the lab contaminated? Did SWIFS cover up an incorrect result on a proficiency exam? If SWIFS did cover up the test result, what was the source of the sperm cell on the test slide? If there was a contamination issue at the lab, when was it discovered? And what was done to resolve the problem? Were defense attorneys made aware of contamination issues at the lab?

According to this document, SWIFS did not implement an investigation to determine the source of the contamination. If there was no cover up, why didn't SWIFS notify SERI of the contamination of the slide in question?

CAR 06-006 FBU Proficiency Test Discrepancy

Sure, it was just a proficiency exam. But what if this had been an evidential sample in a criminal case? What if someone's life hung in the balance? How much confidence would you place in the lab?

A look lack at the 82nd Texas Legislature

Here's an update on matters affecting lawyers and the criminal (in)justice system that were introduced into the recently completed regular session of the Texas Legislature that were mentioned in this blawg.

HB1173: This bill would give the state 36 hours to hold a probable cause hearing in counties with more than three million residents (Harris County) instead of having to hold the hearing within 24 hours. The bill passed both the House and Senate and was sent to the Governor on May 30, 2011.

SB1879/HB3807: This bill would have allowed the City of Houston to use recording devices instead of court reporters in trials in municipal court. The House passed its version but the bill never got out of the senate committee.

HB243: This bill would make it a criminal offense to text while driving in Texas. The House passed the bill but it never came up for a vote in the Senate.

HB96: This bill would have allowed the prosecution's chief investigator to set in the courtroom and listen to testimony - even if "The Rule" were invoked. It passed the House but never came up for a vote in the Senate.

HB1072: This bill would have waived State Bar dues for lawyers employed by the State of Texas. It passed the House but never came up for a vote in the Senate.

HB189: This bill would have made first-time DWI offenders eligible for deferred adjudication - but not for an order of nondisclosure. The bill would also allow a DWI "dismissed" through deferred adjudication to be used for enhancement purposes. The bill passed the House but failed to get out of committee in the Senate.

SB152: This bill would have allowed for the admissibility of evidence of prior bad acts by individuals charged with certain sexual offenses. The Senate passed the bill but it never came up for a vote in the House.

SB232: This bill would have mandated the SCRAM device for certain probationers in alcohol-related cases. It failed to get out of committee.

SB1526: This bill would have mandated reciprocal discovery in criminal cases. It, too, failed to get out of committee.

A father's concern

My client's father was concerned.

He was concerned that the case hadn't been resolved.

He was concerned whether this case would cost his son employment opportunities.

He was concerned because the court had ordered his son to install an ignition interlock device in his car.

He was concerned because the DPS wanted to suspend his son's driver's license.

He was concerned because his son hadn't been convicted of anything but he was already being punished.

We're immune to it at times. We're at the courthouse most days and we're juggling dozens of cases at a time. We know how long it takes for a case to wind its way from arraignment to trial. We know that most of our court appearances are a colossal waste of time for everyone involved.

We know that this quaint notion of innocent unless proven guilty is often turned on its head at the courthouse. We're aware that most judges view a defendant as guilty until proven otherwise.

The only problem is we're inside the fishbowl. Our clients and their families are on the outside looking in. What we see as part of the daily grind they see as a monumental inconvenience.

I couldn't offer him any words to ease his concern. His son is being punished and he hasn't been found guilty of anything.

I don't have an answer.

Due process 101

H/T Judge Susan Criss

Twitter just says no

Which online organization actually has the balls to stand up and defend its users' privacy?

It's not Google. It's not Facebook. It's not Wordpress.

It's Twitter.

In the face of government subpoenas asking for users' information, Twitter has stood up and fought. When the US government served Twitter with a subpoena asking for information about four individuals allegedly involved with WikiLeaks, Twitter sought to have the subpoena unsealed so that the users could be notified of the attempts by los federales to access information.

Facebook and Google don't notify their users when they are requested to turn over information in response to a subpoena. So you may never know if you're one of the 4,000 folks the government is seeking information on every year.

And what has Twitter received for daring to stand for principle? Certainly not a lot of praise. The government wants you to believe that Twitter isn't being a good corporate citizen because it refuses to bend to the government's demands.

Twitter should be lauded for its efforts to protect our right to privacy. Twitter shouldn't be condemned, Twitter should be commended for fighting the government's exercise of power.

H/T to Kevin O'Keefe.

Survey says...

About a week ago I received the following e-mail from a lawyer in Paris working on a master's degree in something called Legal Sociology:

Hello Mr. Kennedy,  

My name is Marcela Monroy. I am a lawyer, currently doing a Master in Legal Sociology at the University of Paris II, Pantheon-Assas. I am currently working on a research on the impact of social networks (forums, blogs, chats, message boards, etc.) and the access to legal information. For this reason I am conducting an online survey. 

I am contacting you, to ask if you would be willing to post a blog item about my research. I am sending to you the link of the survey that I mentioned previously. 

Thank you in advance for the help and advice that you can provide me.  

Best regards, Marcela Monroy

From the looks of it she is researching the impact of social networks on the way people access legal information. It only takes a couple of minutes to complete and the results might just be a bit interesting.

To participate in the survey, just click here.

Diverted from justice

While I was sitting in a courtroom at the Harris County Criminal (In)justice Center the other morning I couldn't help but listen in on the proceedings at the bench.

It seems that a woman who was charged with driving while intoxicated chose to enter the DIVERT program. As part of her "probation" she had an ignition interlock device installed in her car. It appeared that there were a few incidents in which the device detected alcohol levels greater than .02 on her breath. Someone (the DA's office, the probation department, pretrial services?) wanted to terminate her participation in DIVERT.

The judge looked at the printouts and asked the woman a few questions before telling her attorney that he would allow her to withdraw her plea, enter a new plea and leave her on probation instead of sentencing her to 30 days in jail. The attorney asked the judge what he was supposed to do.

The attorney pointed out that the pretrial diversion agreement was between the defendant and the DA's office. The judge pointed out that she had entered a plea of guilty in exchange for 30 days in jail as part of her entranced into the program. Per the contract, the 30 days was probated.

The attorney said he didn't think the DIVERT program was even legal.

The judge told the attorney that he had raised concerns about the legality of the program on prior occasions and that he made no attempt to hide his concern about defendants entering pleas of guilty as part of the program.

Keep in mind that these were just allegations that she had consumed alcohol while on probation. There was nobody present to testify that the device was working properly on the days in question. There were no maintenance or calibration records. There was no expert to testify that the interlock device was reliable. There was no one to testify as how the little box even works. How does it clean itself after a blow? What is the scientific basis of the box? How does it calculate an alcohol concentration?

It's a little box with a tube.

But the defendant was boxed in. She had already plead guilty. She was, to put it bluntly, screwed.

I have written many times about my concerns with the DIVERT program - and those concerns have to do with the practice of the defendant entering a guilty plea before the court. As I have stated before, DIVERT is not a pretrial diversion, or intervention, program; DIVERT is deferred adjudication for first-time DWI offenders. The program is not legal and it is questionable whether anyone who participates will be able to expunge the arrest from their records.

A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

Buried in a cover up

Jim Tressell is out as head football coach at Ohio State.

Faster! Faster! They're gaining on us!

The Buckeye football program is now under the NCAA's microscope for a series of incidents involving Maurice Clarett, Troy Smith and Terrelle Pryor. The most recent allegations involve players selling OSU memorabilia for tattoos at a local tattoo parlor.

When that story came to light last December, Mr. Tressell denied having any knowledge of the allegations. Thanks to Sugar Bowl officials, the players in question were allowed to suit up and play in the game, despite being ineligible.

As it turned out, Mr. Tressell knew about the allegations a year ago April (long before the 2010 football season) and, instead of forwarding the information to compliance officers at OSU, he sat on the evidence. In other words, as a result of Mr. Tressell's actions, OSU used ineligible players throughout the 2010 campaign.

Ohio State tried to get in front of the curve by suspending the players for the first five games of the 2011 season. Coach Tressell was later suspended for the first five games, as well.

But alas, as Richard Nixon found out, the cover up is worse than the crime. Had Mr. Tressell notified the school, or the NCAA, when he found out about the allegations, the players would have been suspended for four games and life would have gone on in Columbus.

Now the NCAA is taking a closer look at the program and Mr. Tressell's "ethics" at Ohio State and Youngstown State are being exposed. Coach Tressell dressed in a sweater vest and carried himself with a holier than thou attitude. In the end it was all a show.

But for a cover up, Ohio State may have had a down season in 2011 but they would be back again. But for a cover up, Jim Tressell would still have a job. It's likely that his coaching career is now over.

The latest cancer risk (or just another scare)?

So cell phones can cause brain cancer.

Or not.

The World Health Organization released a study in which the agency listed cell phones as a "carcinogenic hazard."

"The biggest problem we have is that we know most environmental factors take several decades of exposure before we really see the consequences," said Dr. Keith Black, chairman of neurology at Cedars-Sinai Medical Center in Los Angeles.

WHO based their findings on a 2010 survey of cell phone use among cancer victims. The survey asked participants to estimate their cell phone usage over the previous ten years. The problem with that methodology is that it assumes cell phone usage causes cancer and it doesn't differentiate between heavy and light cell phone usage.

A Danish study followed 420,000 healthy Danes around and tracked both their cell phone usage and cancer rates and found no link between cell phone use and cancer risk.

Of course cell phone usage might raise one's risk factor of being stricken by cancer. But so might playing out in the sun, drinking artificial sweeteners, breathing exhaust fumes and just living a long time.

In the end, we just don't know. That may be a bit unsettling to some, but it's about par for the course when it comes to assessing future risks based on current behavior.

The biggest danger of cell phone use isn't cancer. It's focusing more on a phone call than the road when driving.

Some experts recommended people use a headset or earpiece if they are worried about the possible health dangers of cellphones. "If there is a risk, most of it goes away with a wireless earpiece," said Otis Brawley, chief medical officer of the American Cancer Society. 

Brawley said people should focus on the real health hazards of cellphones. "Cellphones may cause brain tumors but they kill far more people through automobile accidents," he said. 

Is this "shattering" news that using something might cause you to get some disease really going to change the way you conduct your daily business? Are you going to think before picking up that cell phone when it rings? Are you going to put the call on speaker and shout into the phone sitting on the desk?

RIP, Gil Scott-Heron

Last week the world lost a visionary and a revolutionary when urban beat poet Gil Scott-Heron died at the age of 62. Scott-Heron is known to some as the Godfather of Rap for the manner in which he mixed minimalist percussive elements with the spoken word.

His music spoke of the anger found in the black community in the 1960's and 70's. Scott-Heron might properly be seen as the CNN of urban America.

You will not be able to stay home, brother.
You will not be able to plug in, turn on and cop out.
You will not be able to lose yourself on skag and skip,
Skip out for beer during commercials,
Because the revolution will not be televised.

The revolution will not be televised.
The revolution will not be brought to you by Xerox
In 4 parts without commercial interruptions.
The revolution will not show you pictures of Nixon
blowing a bugle and leading a charge by John
Mitchell, General Abrams and Spiro Agnew to eat
hog maws confiscated from a Harlem sanctuary.
The revolution will not be televised.

The revolution will not be brought to you by the 
Schaefer Award Theatre and will not star Natalie
Woods and Steve McQueen or Bullwinkle and Julia.
The revolution will not give your mouth sex appeal.
The revolution will not get rid of the nubs.
The revolution will not make you look five pounds
thinner, because the revolution will not be televised, Brother.

There will be no pictures of you and Willie May
pushing that shopping cart down the block on the dead run,
or trying to slide that color television into a stolen ambulance.
NBC will not be able predict the winner at 8:32
or report from 29 districts.
The revolution will not be televised.

There will be no pictures of pigs shooting down
brothers in the instant replay.
There will be no pictures of pigs shooting down
brothers in the instant replay.
There will be no pictures of Whitney Young being
run out of Harlem on a rail with a brand new process.
There will be no slow motion or still life of Roy
Wilkens strolling through Watts in a Red, Black and
Green liberation jumpsuit that he had been saving
For just the proper occasion.

Green Acres, The Beverly Hillbillies, and Hooterville
Junction will no longer be so damned relevant, and
women will not care if Dick finally gets down with
Jane on Search for Tomorrow because Black people
will be in the street looking for a brighter day.
The revolution will not be televised.

There will be no highlights on the eleven o'clock
news and no pictures of hairy armed women
liberationists and Jackie Onassis blowing her nose.
The theme song will not be written by Jim Webb,
Francis Scott Key, nor sung by Glen Campbell, Tom
Jones, Johnny Cash, Englebert Humperdink, or the Rare Earth.
The revolution will not be televised.

The revolution will not be right back after a message
bbout a white tornado, white lightning, or white people.
You will not have to worry about a dove in your
bedroom, a tiger in your tank, or the giant in your toilet bowl.
The revolution will not go better with Coke.
The revolution will not fight the germs that may cause bad breath.
The revolution will put you in the driver's seat.

The revolution will not be televised, will not be televised,
will not be televised, will not be televised.
The revolution will be no re-run brothers;
The revolution will be live.

When the right hand doesn't know what the right hand is doing

Scott Henson over at Grits for Breakfast points out that the Teabaggers aren't necessarily playing along with the "big government" conservatives up in Austin. It seems that the more libertarian of the bunch have a problem with the right's war on the Bill of Rights.

According to Sharon Edmonds at the Texas District and County Attorneys Association:

Earlier this week, SB 1717 by Duncan/Lewis, an omnibus judicial reform bill, became what we call a "Christmas tree," so named because of all the amendments that other members tried to "hang" on it. Many of those amendments were formerly dead bills, including HB 1507 by Christian, a prosecutor-supported bill that would authorize non-lawyer JPs to issue evidentiary search warrants in smaller counties. Once offered, the amendment immediately started taking fire from several House members—urban and rural, Democrat and Republican—who expressed concerns about expansive searches, especially relating to blood draws in DWI cases. Now, there has always been some generalized resistance at the capitol to the existence of non-lawyer magistrates, but this time, the anti-government Tea Party effect crystallized that opposition into a solid voting bloc that defeated the amendment by a stunning vote of 17-121. As a result, the author of the amendment joined the ignominious "100 Club" for putting forth a matter that drew over 100 "nay" votes. We bring this to your attention because it is only one of several indications that things are changing at the state capitol. Just be glad that we passed some blood draw legislation last session, because if we hadn't, that bill would be D.O.A. this session. And that, friends, is the new legislative math for the foreseeable future.

I say "Bravo!" to the Teabaggers on this front. It is about time someone stood up and argued against bills expanding the state's power to force folks to give up evidence that might incriminate themselves. The right wing of the Republican party has long championed itself as the party of limited government. As I have pointed out before, that moniker only applies when it comes to state-funded services for the poor. The right wing has never had any problem expanding the role of government when it comes to criminal justice matters.

It would appear that some members of the Tea Party movement aren't mere puppets of the GOP but actually adhere to the maxim that the government who governs least, governs best. It's good to see someone pointing out the hypocrisy in the Republican camp.

The Economist has even piped in about conservatives bringing about sentencing reform in the face of budge shortfalls.

So long as the Republican party is split among fiscal conservatives, Bible-thumpers who feel the need to tell the rest of us how to lead our lives and libertarians there will be conflicts between those who wanted limited government and those who just mouth the words.

Contaminated with bias

After you consume alcohol, your body begins the process of absorption and then elimination. The alcohol is absorbed by the blood through the intestinal tract and is eliminated through excretion (sweating, exhaling) and metabolism.

Breath test machines work on the principle that the amount of alcohol you excrete through exhalation can be used to estimate the amount of alcohol in your blood. It is an indirect method of determining whether someone is over the legal limit of .08 grams per 100 milliliters of blood.

The more direct method, of course, is blood testing. Even blood testing is not a direct method, however, because what's actually tested in the chromatograph is the headspace gas in the blood tube.

As blood is fragile, care must be taken to preserve samples. Anticoagulants are added to the tubes to prevent clotting and an antiseptic cleaner is used around the blood draw site to prevent bacteria from infecting the person or the blood sample. The blood must also be refrigerated to prevent the growth of little yeasts called candida albicans which can cause the blood sample to ferment in the tube.

What can't happen in that blood tube, though, is the elimination of alcohol for there is nothing to metabolize it. If the blood is collected and stored properly, the sample should yield approximately the same result any time you choose to test it. It is in a state of vacuum.

Unless, of course, you're the Texas Department of Public Safety and you have to explain why some blood samples that tested over the legal limit later yielded results (when tested by a private facility) that were below the legal limit.

Deviation-2010-02-23

Keith Gibson, the Quality Manager for the DPS lab on Jones Road in Houston had a problem. It seems that when a private lab retested a sample of blood from a DWI case, the result came in quite a bit below what the DPS test said. Mr. Gibson wrote that he didn't want to issue a Quality Assurance Report because one of the samples came out below the legal limit on retest. He just wanted to draft a "deviation" so it could be brushed under the rug.

Forrest Davis, the Quality Assurance Coordinator for the DPS, agreed. He didn't like the idea of a Quality Assurance Report because the data from the retests would be included in it. Better just to pretend it never happened, right? Interestingly enough, Mr. Davis did note that the retest did not include any volatiles that would have suggested a degradation of the sample.

Junk science is still junk science, no matter what you call it.

Crime labs should not be under the control of the police or any agency involved in the investigation or prosecution of crime. These labs should be under independent control to remove the inherent bias found in crime labs run by the police.

All the king's horses...

vic·tim   noun \ˈvik-təm\
1 : a living being sacrificed to a deity or in the performance of a religious rite2 : one that is acted on and usually adversely affected by a force or agent : asa (1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 

Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

Another dirty job

This past Thursday I had to appear in Montgomery County to enter my grandmother's will into probate. Since I also had to appear for a colleague in a justice of the peace court in Magnolia, I decided to spend the time in between at my parents' place.

A few months back a storm blew down an oak tree in my parents' backyard. My dad, knowing my love of smoking meat, asked me if I wanted any of the wood for my pit. Of course I said "Yes." He told me I could come up anytime to get what I needed.

So Thursday was the day.

Now I've never probated a will before - and, had there been anything screwy about this one I wouldn't have touched it. When we got into the courtroom we sat down. I'd read the State Bar's probate book and was familiar with the questions I was supposed to ask - but I wrote some of them down as a cheat sheet. Not knowing the local customs in these matters I turned a keen ear to every proceeding. Our little hearing didn't go as smoothly as I'd hoped, but we got out of it in one piece with the mission of the morning accomplished.

Then it was off to my parents' house and that oak tree. It had already been sectioned so all I had to do was split how ever many sections I wanted. I took one chisel and seeded it and then I took the other chisel and did the same thing. Then I lifted the sledge hammer and pounded each chisel - first one and then the other. After a couple of strikes the most amazing thing happened.

As the wood began to split I could hear the sound of the wood splitting long after striking the chisel. It was a steady sound as the force of the blow was carried deep into the section of wood.

It was hard work. I was sweaty and dusty. My hands blistered. My back and shoulders sore. But I had a trunk load of oak for my pit. It was another "dirty job." There was a starting point. There was an ending point. And there was evidence that I had actually accomplished something in the meantime.

It was a nice change of pace from the law - where you're never really sure at the end of the day just what, if anything, you did accomplish that day.

Beer lovers hosed again

If you're a fan of bland beer with little taste but a lot of marketing oomph, you should be happy that HB602 failed to be offered up for a vote in the Texas Senate.

But, if you're a fan of unique, handcrafted beers and ales made here in the Lone Star State, consider yourself screwed (again).

HB602 would have allowed craft breweries to offer beer for sale to folks who tour the brewery. Sounds pretty harmless, does it not.

Apparently not to the big bad boys at Anheuser-BuschInBev who lodged a last minute objection to the bill. The big boys weren't happy that they would not be allowed to sell beer at their brewery factory. Of course they don't offer tours to show folks how they butcher the world's most beautiful beverage.

As you can see from the witness list, the only witness opposing the bill was Anheuser-Busch.

The purpose of the bill was to help promote craft breweries in the state. You know, more people buying beer that's made in Texas, boosting the local economy, all that good stuff. Of course, if more people drank craft beers then fewer people would drink that watered-down, tasteless, wretched brew made by the boys from St. Louis.

And what would be wrong with that?

A little of this and a bit of that

Here are a few odds and ends you might find interesting:

Bradley out as chairman of forensic commission

Williamson County District Attorney John Bradley's stint as chairman of the Texas Forensic Science Commission has come to an end as the senate concluded its session without voting on whether to accept Gov. Perry's nomination of Mr. Bradley.

Gov. Perry appointed Mr. Bradley to chair the commission in 2009 prior to a scheduled hearing in which the commission was to take testimony from Craig Beyler about the flawed science used by arson investigators that led to the execution of Cameron Willingham.

During his time as chairman, however, Mr. Bradley accomplished the fair haired governor's wishes to delay the release of the committee's findings until after the 2010 gubernatorial election.

Patrick cowers in fear

Texas State Senator Dan Patrick has once again proved himself to be a big bag of hot air as he withdrew his bill that would have criminalized groping by TSA personnel in airports. Mr. Patrick ran and hid in a closet after receiving a letter from the United States Attorney for the Western District of Texas threatening that TSA might cancel flights in Texas should the legislation pass.

Every year on the Fourth of July, Mr. Patrick rides in a car at the Memorial Villages 4th of July parade; and every year my wife gives me an ugly face when I mock Mr. Patrick in front of my daughters. Certainly my lack of civility and uncouthness is far worse than Mr. Patrick's demagoguery.

One wonders, was Mr. Patrick worried that the bill might actually pass?

If Mr. Patrick is so concerned about privacy issues for airline passengers, why isn't he concerned with the steady erosion of the 4th Amendment?

Wanted man

John Joe Gray is on the lam for allegedly assaulting a peace officer in December 1999. He was bonded out of jail a few days later and never appeared in court. He has lived on his armed compound in Henderson County, Texas with his family ever since.

Years ago he warned local law enforcement officials to bring extra body bags if they wanted to capture him. The local sheriff has said he's not risking the lives of any officers to bring in Mr. Gray.

When the rules don't apply to the rulers

Dennis Levine.
Ivan Boesky.
Raj Rajaratnam.

All charged with and convicted of insider trading.

But what about our elected representatives in Washington, D.C.? You know, the ones who sit on committees that draft and pass legislation that affects every sector of our economy. The ones who know what legislation is coming down the pipe and the likely effect it will have on various sectors of the economy, or even particular companies.

You know, those men and women who prostitute themselves for campaign contributions 24/7. The ones who takes piles of cash from PACs representing trade associations and companies.

They have investments. They buy and sell stocks and bonds and other investment vehicles at the same time they are debating legislation.

Here's a bill regulating greenhouse emissions. Here's a bill regulating offshore drilling. Here's a bill regulating fuel economy in cars. Here's a bill authorizing the building of a dam or a highway. Here's a bill raising the minimum wage. Here's a bill mandating certain health benefits in standard insurance policies. Here's a bill authorizing tax credits for certain investments.

Guess who's trading on that information? Guess who's making trades that outperform the market?

It ain't Mr. Smith.

So it's against the law for an individual to make trades based upon information he obtained that was not available to every other potential investor, but it's perfectly okay for a congressman sitting on a committee regulating a particular industry to make trades based upon legislation that is up for consideration.

Court limits comparison of burdens of proof

In order to obtain a conviction, the state must prove a person committed each and every element of a criminal offense beyond a reasonable doubt. Nothing new or earth-shattering there. It's one of the first concepts in criminal law that we are taught.

But what is beyond a reasonable doubt? There is no legal definition of the term in Texas. In fact, it's a bit like pornography -- the jurors will know when they see it.

The prosecutor likes to tell the jurors that proof beyond a reasonable doubt does not mean proof beyond all doubt. Fair enough. But where does that put the line?

We have a multitude of levels of proof. A police officer must have probable cause to arrest someone. There must be probable cause to support a warrant. A grand jury must find there is probable cause to believe the defendant committed a crime in order to vote to indict him.

Over at the civil courthouse money is awarded if a plaintiff can prove his claim by a preponderance of the evidence. The judge will even tell the jurors that a preponderance of the evidence just means more than 50%. A "feather's worth" of evidence can be enough to send a plaintiff out of the courthouse with a smile on his face or a frown.

Want some expert witness testimony to support your theory of the case? You'll need to prove that your witness is an expert by clear and convincing evidence. If the state wants to remove a child from a custodial parent, the state will need to make its case by clear and convincing evidence. Clear and convincing evidence is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established."

But what if the state wants to infringe upon the liberty of one of its citizens? Back in 1991, the Texas Court of Criminal Appeals decided how the term beyond a reasonable doubt was to be defined in Geesa v. State, 820 SW2d 154, 162 (Tex.Crim.App. 1991):

Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

This definition was cobbled together from the Texas Penal Code and the instructions given in the federal system. The CCA held that this definition was to be included in every criminal jury charge regardless of whether the defense requested it.

Nine years later the CCA decided that what it giveth, it can taketh away, too, as the judges held that the Geesa definition was serving only to confuse jurors. In Paulson v. State, 28 SW3d 570, 573 (Tex.Crim.App. 2000). 

So, what is a criminal defense attorney to do when there is no definition of the term of art by which a jury decides whether to brand someone as a criminal for life? You compare the various levels of proof. You "walk up" the levels of proof to demonstrate to the jurors how high the state's burden is. You compare preponderance of the evidence to clear and convincing evidence to beyond a reasonable doubt. You get the panel talking about what quantum of proof they would require in order to find someone guilty.

Unless the judge decides you don't get to. In Anderson v. State, No. 07-10-1039-CR (Tex.App.--Amarillo 2011), the Amarillo Court of Appeals decided that it is not a per se abuse of discretion if a trial judge does not permit a defense attorney to question the potential jurors about the differences in the burden of proof between a civil case and a criminal prosecution.

Now I have plenty of colleagues who would argue that it's not a good idea to use the stair-step model of the levels of proof during voir dire because it might convey to the jury that you can just "add up" the evidence to determine whether the state has met its burden. The stair-step model also doesn't do a good job of demonstrating the vast gulf between probable cause and proof beyond a reasonable doubt, and could serve to reduce the quantum of proof a juror would require to return a guilty verdict.

However, most of our clients start off (way) behind the eight-ball at trial and taking away the ability to compare the various levels of proof only serves to limit further the ability to provide an effective defense at trial. The Amarillo Court seems to have forgotten that those on trial are innocent unless proven guilty and that the courts should bend over backwards to ensure that they enjoy due process of law.

If you're not going to define the term by which we ask jurors to find folks guilty, then you sure as hell shouldn't limit the ability of defense counsel to demonstrate to potential jurors just how high the state's burden should be.

So long, cowboy nuns

This is a real bummer. The Monastery of St. Claire, located just outside of Brenham, Texas, is closing its gates for good this weekend. Why's that a big deal, you ask?

Because of these little guys. The nuns at St. Claire ran a horse farm and raised miniature horses that grew up to 36 inches tall.

The monastery and horse farm were a great stop on a one-day road trip to Brenham. We'd start off at the restaurant at the Brenham municipal airport (a 50's style diner), then head over to the Blue Bell creamery for a tour and a bowl of the world's greatest ice cream before ending our adventure at the monastery looking at the miniature horses.

But now that there are only two nuns left at the monastery (something that tends to happen to celibate societies who don't attract new members), the farm and horses have been sold. The last day to see these wonderful little critters is this Saturday.

In the meantime, I'm trying to fit a drive out to Brenham into my schedule on Friday afternoon.

Failure to yield the right of way

Look really hard. Read every word. I guarantee you won't find the words "finality" or "closure" in the Bill of Rights. Not in the 4th Amendment. Not in the Fifth. Nor the Sixth or Eighth Amendments.

The state, and the judiciary, seem to think that the concept of "finality" is inherent in our system of (in)justice.

There is no sanctity in the concept of finality. And when the currents of justice and finality intersect, finality must yield the right of way. Jeff Gamso writes about a gentleman named Ezell Gilbert. Mr. Gilbert, it seems, made some bad choices and found himself in the federal penitentiary. The length of his stay was determined by a judge drawing lines on a matrix based on a finding that Mr. Gilbert was a career criminal. Mr. Gilbert protested, to no avail, that he was not a career criminal and that the sentence was 8 1/2 years too long.

Fast forward ahead 11 years and the US Supreme Court decided that another individual's sentence was determined incorrectly based on a finding that he was a career criminal. Mr. Gilbert filed a writ seeking a reduction in his sentence based upon the finding by the nine in black.

A panel from the 11th Circuit Court of Appeals heard Mr. Gilbert's appeal and found in his favor. The state asked for a hearing in front of the entire court. Last week, finality failed to yield the right of way and Mr. Gilbert was denied relief.

In a blistering dissent (and should there be any other kind?), Senior Judge James Clinkscales Hill called out his colleagues for allowing finality to trump justice.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity. 

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

The same argument can be made about this idea of "closure." There is no such thing as closure.

Whatever happened, happened. And nothing can change that fact. If someone was the victim of a criminal act, they can't erase that. If anyone has ever had a friend or loved one killed, there will never be closure. Everyday is a new day to remember that someone isn't around anymore. Nothing that happens to the person convicted of the crime is ever going to change that.

The notion that somehow the need for "finality" and "closure" trumps the fact that we are all entitled to due process of law and the protections of the Bill of Rights is an insult to everyone who has fought to defend our freedoms and liberties in any forum. From the bench, it is an excuse for the unwillingness of the judiciary to ignore the denial of due process.

Mussolini made the trains run on time. So fucking what. Do you want cruel and ruthless efficiency or do you want justice?

Justice and freedom aren't very tidy concepts. They don't lend themselves to efficiency. But there are things more important than whether the trains run on time. Or whether we have "finality."

Stuffed to the gills

Forget about all that 6th Amendment nonsense about the right to counsel, Harris County has decided that's not nearly so important as cramming as many pre-trial detainees into the Harris County Jail in order to coerce guilty pleas.

From: Armand, Stephanie (DCA)
Sent: Friday, May 20, 2011 2:50 PM
To: DC Criminal Coordinators (DCA)
Cc: DeLeon, Sisto (HCSO)
Subject: Contractual Logistics Transfers
Sent: Friday, May 20, 2011 2:50 PMTo: DC Criminal Coordinators (DCA)Cc: DeLeon, Sisto (HCSO)Subject: Contractual Logistics Transfers 

Good afternoon,   Due to jail overcrowding, pre-trial inmates with a future date of 35 days or over are transferred to outlying jail facilities in Newton and LaSalle County.      The inmates will be returned to Harris County Jail, two weeks prior to the setting in the court.     Video Conferences are available at both of these facilities to allow the defense attorney to visit with his/her client.         Defense attorneys may contact one of the following individuals to arrange the video conference: Lt. J.D. Clay @ 713-755-8434 or 713-755-8425 Sgts. C.D. Minshew or F. Dlouhy at 713-755-8420 Or Deputy Station at 713-755-1188 or 713-755-1189   Please convey this contact information to the defense attorneys.    This information is also available on the Coordinator’s Resource Webpage under Contractual Logistics Transfer Procedures.       Thank you in advance for your assistance in this matter.
 
Stephanie Armand Business Process Manager Administrative Offices of the District Courts 713-755-5704

Keep in mind that we aren't talking about people who have been found guilty of anything. These are the folks that are supposedly innocent unless proven guilty. These are the folks who are unable to post bond. These are the folks that most people don't give a rat's ass about.

But they're being transported all over the state because Harris County refuses to do anything to address the underlying problem of jail overcrowding -- punitive bonds.

And then there's HB 1173 that would allow counties with populations over 3 million people to extend the time they can hold a suspect without a probable cause hearing from 24 to 36 hours. That's just what we need here in Houston -- there's not enough room at the inn as it is and now we're going to allow the state to hold a citizen in jail an additional 12 hours.

Of course, if it's a bad bill related to criminal justice you know it must be sponsored by Sen. Joan Huffman. Interestingly enough, the fiscal analysis indicates that there should be no additional cost to the state (understood) or to local government (?). Just how many pretrial detainees are being transferred out of the county to make room for the new blood over on Baker Street?

Here's an idea for our legislators in Austin -- how about mandating the issuance of citations for Class B possession of marijuana cases? Confiscate the contraband, issue a citation with a promise to appear and go on about your business. It's going to be cheaper than shipping detainees out of the county and it might just allow Harris County to take care of its business when it comes to holding probable cause hearings within 24 hours.

An unhealthy addiction to drug courts

Norman Reimer, the executive director of NACDL, says our newfound addiction to drug courts is harmful to the rights of our clients.

In the new issue of The Champion, the official publication of the National Association of Criminal Defense Lawyers, Mr. Reimer argues that, in many cases, drug courts are worse for defendants than the regular courts.

"All too often, drug courts denigrate fundamental rights, extracting broad waivers as the cost of admission, and expose even the most well-intended to dire consequences, often worse than if they avoided drug court and simply pleaded guilty. They tend to place a premium on early guilty pleas, thereby insulating questionable law enforcement search and seizure practices, and provide a convenient means for prosecutors to shed defective cases. And some drug courts impede the attorney-client relationship and undermine an accused person's Sixth Amendment right to a vigorous defense. Worse, many drug courts operate without transparent admission criteria, and most bar eligibility to recidivists and those most in need of treatment. These factors tend to exacerbate racial and economic disparities in the criminal justice system."

The problem with drug courts is that the criminal (in)justice system is not designed to provide solutions to public health issues (the same general problem exists with other specialty courts). Drug addiction is a medical issue - not a legal issue. Treating a medical condition through the auspices of the criminal (in)justice system is doomed to failure.

Medical professionals are trained to treat both the symptoms and the root cause of an illness. The goal of the medical profession is to cure the patient - or at least to ameliorate the condition. The doctors, nurses and other staff work together as a team to help the patient.

In the courthouse, judges, prosecutors and defense attorneys are not part of a "team." Prosecutors and defense attorneys are adversaries - we stake out our position and go from there. The prosecutor is looking for the best outcome for the state (or to get Friday afternoon off) while the defense attorney is fighting for the best outcome for his client. The judge sits as an impartial arbiter. No one is interested in resolving the medical condition behind the addiction -- the sole question is whether the state can prove up the elements of the charged offense.

The price for admission into the drug courts is a plea of guilty (generally) and a waiver of one's constitutional rights. We're all part of the same "team" now, remember? We're no longer adversaries. We'll work together to get the defendant through the process.

The process consists of a probation more restrictive than that offered in the regular court. The reward at the end of the tunnel is a dismissal - if the defendant can complete the program. Fall short of the court's expectations and you find yourself in a worse position than you would have been in had your case remained in the regular court.

On the other hand, Mr. Reimer points out that:

"Drug courts have helped many people. They have saved lives. They have probably saved hundreds of thousands of prison years. For clients facing a lengthy prison sentence, even a long shot at successful diversion must be considered. And therein lies the dilemma. As long as draconian penal policies drive America's drug policy, drug courts will thrive - irrespective of their flaws."

This country's attempt to treat drug addiction through the penal system has been an abject failure. It's time to take a new approach. People whose only "crime" is their addiction to drugs need to be in treatment, not in the courtroom. Treating a medical condition in an adversarial setting will never succeed and will only mean that another generation is lost in the criminal (in)justice system.

See also:

Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities, Justice Policy Institute (March 22, 2011)

Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use, Drug Policy Alliance (March 22, 2011)

The gang's still here

Better luck next time, Mr. Camping.

It's the end of the world?

For those of y'all not attuned to the rantings of the millennialists, you might just want to call it an early day and hang out in the backyard or the pool or the local watering hole because it just might be your last chance.

According to Harold Camping, an 89 year-old Christian fundamentalist out in Oakland, tomorrow is Judgment Day. According to his research, a series of major earthquakes will rock each meridian at 6pm local time. Thus will begin the so-called Rapture. Believers claim that the souls of the "saved" will be lifted off the earth and transported to heaven on that day. Supposedly the earth will be destroyed five months later on October 21, 2011.



Mr. Camping bases his bold prediction on a few numbers and phrases he found in the Bible over the course of five decades. He claims that the beginning of the Rapture was ordained to occur exactly 5,000 years after the Great Flood that wiped all but eight people. He claims that exactly 722,500 days will have passed between the day Jesus was crucified (April 1, 33) and May 21, 2011 and that the number is significant based upon his own brand of numerology.

5 x 10 x 17 x 5 x 10 x 17 = 722,500

According to Mr. Camping, the number 5 symbolizes atonement, the number 10 symbolizes completeness and the number 17 symbolizes heaven. Well, the numbers 5 and 17 can't be broken down any further, but the number 10 is not a prime number, its factors are 2 and 5. Oops. I guess I missed the significance of the number 2. But that's just a minor detail, I'm certain.

I've lost track of the number of times the predicted end of the world came and went. If Mr. Camping's wrong we still have the Mayan doomsday on December 21, 2012 -- unless of course the reason the Mayan calendar ended was the poor schlub drawing it up just got tired and went home.

For those of our brethren with little else to do but listen to doomsday prophets while watching infomercials all day (and night), an army of volunteers have quit their jobs to caravan across the country warning the unsuspecting that the world is coming to an end tomorrow.

It never ceases to amaze me the numbers of folks who get suckered in by snake-oil salesmen like Harold Camping. We have produced a generation (or more) that believes their fate is beyond their hands; a generation that looks for someone to blame for all of their misfortune. There are vast conspiracies afoot that affect every aspect of our lives. Secret societies sit behind the velvet curtain pulling the strings on the puppet show acted out in front of us. None of us bear any responsibility for our position in life.

These are the folks who sit on our juries. These are the folks who decide whether our clients walk out of the courtroom.

When the earthquakes don't occur; when the rapture doesn't begin; when the world continues on just as it has for years and years charlatans like Mr. Camping will have an explanation for why the destruction didn't happen. And I can guarantee it won't start off with "I was wrong..."

I'm pretty sure we'll be chatting again next week.