Dallas Criminal Defense Lawyer Blog

Kaufman District Attorney Run Off April 13

Wed, 03 Mar 2010 04:10:34 -0600

District Attorney vote totals from last night's GOP primary-

Rick Harrison- 3,110
Andrew Jordan- 2,764
Mike Mclelland- 3,479

It was an interesting development as the early vote totals had Mr. Jordan in 2nd and Mr. Harrison in 3rd, respectively. I quit watching before all the Forney precincts had been posted. It appears Rick got a significant push from Forney voters to put him in the run off. Round 2 of the Kaufman DA election will be April 13.

In other election news Howard Tygrett won re election (86th Judicial District Court Judge) against Raymond Shackleford, Rhonda Hughley defeated Angela Webb for District Clerk, and JP2 in Forney is going to see a run off between Wade Gent and Patricia Ashcroft.

Finally, the world will be watching as the Ellis County Libertarian party holds their county convention on March 13, 2010 at my house in Ennis.

Public Intoxication, Racial Profiling, Mother Jones, and Me

Fri, 26 Feb 2010 19:04:27 -0600

Mother Jones writes an alarming expose on the abusive police tactics used in PI arrests. As part of their story they quoted an expert on the subject, yours truly. From Mother Jones-

State courts have not only upheld the practice but expanded the definition of public intoxication to cover pretty much any situation, says Robert Guest, a criminal defense attorney in Dallas. "Having no standard allows the police to arrest whoever pisses them off and call it PI," he says, adding, "If you have a violent, homophobic, or just an asshole of a cop and you give him the arbitrary power to arrest anyone for PI, you can expect violent, homophobic, and asshole-ic behavior."

I'm going to trademark the word asshole-ic(TM). I'm pretty sure that's an RG original. Enough about me. Let's talk about PI.

Besides the violent homophobia on display in the TABC rainbow club raid PI arrests are also used to arrest minorities en masse. Texas law forbids racial profiling, but creative cops and pro state appellate decisions have rendered profiling unecessary. Want to arrest large numbers of brown people and check their immigration papers? Just call it PI and have at it.

From MJ-

According to a recent report by sociology and law professors at the University of California-Berkeley, the Dallas suburb of Irving has used "discretionary" public intoxication arrests to fish for undocumented immigrants. After partnering with federal immigration officials in 2006 to check local prisoners' residency status, Irving police increased the number of Latinos they nicked for PI and other Class C misdemeanors by 150 percent, while arrests of whites and African Americans for those offenses fell. The Mexican consul issued an advisory telling migrants to avoid Irving. "In this city, one has to be extra careful," he told a Spanish-language newspaper. "They were clearly choosing to bring more Hispanics into jail," says Aarti Kohli, coauthor of the Berkeley study. But the feds and local officials hailed the PI sweeps as a victory. Immigration "is expanding this program, saying, 'Isn't this great?'" Kohli says. "But the question they're not asking is: How are these people getting put into jail?"

Kaufman County DWI Lawyer

Sun, 21 Feb 2010 10:30:15 -0600

Yes that is an SEO friendly title and I know the blog world looks down up self promotion, but I can't help it. I'm proud of this accomplishment and I'm going to toot my own horn for a bit. If you want something substantive on criminal justice try this excellent Grits post about hatchet man John Bradley's cover up work on the Forensic Science Commission.

Not guilty, ya'll got to feel me
Since 1/1/09 I've had 4 DWI trials in Kaufman county. The breakdown-two bench trials, two jury trials, two without a breath test, two with a breath sample (both over .15), two in CC2, two in County Court at law. The cases varied factually but united in outcome- not guilty. Four acquittals with one directed verdict. Yes, I'm proud of that.

80%
What makes this streak noteworthy is the talent at the Kaufman DAs office. Simply put, these prosecutors prosecute very well.

Kaufman misdemeanor prosecutors had an 80% jury trial conviction rate in 2008-2009. 4 out of 5 times the State left a misdemeanor jury trial with a conviction. To compare- the 2009 Yankees only won 63% of their games, the 2009 Lakers won 79% of the time. These are the Globetrotters, not the Generals.

No logistical wins
I didn't win any of these cases because the cop didn't show up, or the breath test guy couldn't be there. In each case the State had their witnesses show up and testify that they thought my client was DWI.

Why write about this?
Why not? I want google to know that I've been doing some good work for my clients. This may come across as scoreboarding, but if the sign of a good DA is conviction rates, then my DWI acquittal rate is noteworthy.

Is that all?
In the interest of full disclosure I did have two non DWI trials in the last year in which my client was convicted. I'm not ashamed to admit that. Part of being a trial lawyer is having things go to the other way. Streaks and stats don't always tell the whole story as each case is statistically independent in a gambler's fallacy sort of way. That's another of saying I'm not "due" to lose, but past results do not guarantee future performance.

Kaufman County District Attorney Race

Thu, 18 Feb 2010 12:50:19 -0600

The GOP primary is nigh upon Kaufman county. Voters have three Republican candidates to consider for District Attorney. With no Democrat or Libertarian candidates the primary is the defacto election. Let's look at the two candidates I feel qualified to discuss.

Rick Harrison (incumbent)
When Rick won the GOP primary four years ago things were much different in K-town. The atmosphere at the courthouse was one of distrust and hostility. There was conflict for the sake of conflict; defendants and taxpayers suffered as a result. Court appointed fees for lawyers were setting records, the county jail was full, and a backlog tsunami of criminal cases was building. I don't want to spend a lot of time rehashing the past; it's fair to say that the courthouse square was ready for some hope and change.

At the time of his election all I knew about Rick was that he was a bad ass trial lawyer from Dallas who had a prior DWI conviction. Reforming a flawed bureaucracy is no easy task. Much like steering the Titanic after you hit the iceberg. How would Rick's skills translate into turning around the Kaufman DA? I'm happy to report that out of the chaos Mr. Harrison has created a professional and efficient office.. What's so different? Where to start?

Rick was the first DA to allow email between prosecutors and defense lawyers. Believe it or not as recently as 2006 defense lawyers could not communicate with prosecutors via email. When I was a Kaufman ADA every communication with the defense required a personal meeting, fax, phone call, or letter. The policy created an artificial bottleneck on cases with no benefit. Defendants sat in jail unnecessarily while the lawyers played phone tag.

Mr. Harrison also implemented a real open file policy in which defense lawyers are given police reports/videos simply by asking. As a defense lawyer I can't overstate how vital a robust open file policy is.

Transparency prevents injustice and helps exonerate the wrongfully arrested, while also concinving the reluctant to consider pleading guilty. It's a win/win. That policy, and the strength of his ADAs has led to a 100% felony conviction rate since Mr. Harrison took office.

The pre trial diversion program is another success story. PTD allows the youthful offender a chance to avoid a permanent record after a period of supervision. Most defendants (and unfortunately some defense lawyers) don't realize that even deferred probation leaves a permanent criminal record. PTD gives deserving defendants a second chance while allowing prosecutors to focus on more important cases.

The question of this race is not job performance, but if the Kaufman electorate will forgive Mr. Harrison for his recent arrest. I have not blogged much about Rick's DWI 2nd arrest and I won't speculate on the merits of the case. Instead let's look at some broader issues.

Mr. Harrison has not been convicted of DWI 2nd, only arrested (case is still pending in Dallas county). My first thought is- will voters appreciate that distinction? I'm sure some do, but the comments on other websites lead me to believe many voters have already convicted Mr. Harrison.

What does exactly does DWI, or DWI 2nd say about a person? Does drinking and driving make one untrustworthy, or less qualified for office? Before you answer consider that Dick Cheney had two DWIs, his boss W had one.

DWI is a crime that most people have committed, will commit, or are going to commit in the future. I'm never surprised when a Kaufman resident gets arrested for DWI. The exurban sprawl development, lack of public transportation, and inability to walk anywhere create a situation where Kaufman residents who drink have little choice but to drink and drive. You could hardly design a better system to maximize DWI.

Of all my clients DWI (and cannabis) defendants are the least "criminal" and most "normal" people I represent. DWI arrestees come from all walks of life. These aren't bad people, they just won the unlucky DWI enforcement lottery. I've never seen a DWI arrest as a moral failing. It's a dangerous choice to drink and drive, not something I would consider malum in se.

I recognize that as a Libertarian criminal defense lawyer I probably have a different moral compass than the traditional Kaufman county GOP primary voter. I'm sure those who enjoy simple dichotomies in life (arrest= BAD MAN!, no arrest= GOOD!) will hold this arrest against Mr. Harrison. Rick may have made a mistake but his integrity, honesty, and ability to run the Kaufman DAs office should not be in question.

Andrew Jordan
Full disclosure requires that I consider Mr. Jordan a friend as well as a trusted colleague. While we both graduated Texas Tech law school the same year I didn't really know Andrew until I started prosecuting in Kaufman. I've worked with, and against Andrew on cases and he is an excellent attorney.

Much has been made of Andrew's trial experience. I've been on the working end of an Andrew Jordan defense in a criminal case. He may not be the most experienced trial lawyer in the DA's race, but make no mistake, Andrew can try a case. He's good with the jury, handles pressure very well, and does some good legal research.

Mr. Jordan is currently the Chief Public Defender for Kaufman county. Whereas Mr. Harrison took over a bad situation, Andrew took over nothing. Out of this vacuum Andrew invented the Kaufman Public Defender's office. Through Mr. Jordan's leadership and hard work this has become one of the best PDs ofice in the state.

I know how tough it can be to run a PD office. I was a public defender (Wichita County) for about ten minutes out of law school and can't say I miss the atmosphere. Being a public defender is a thankless job with difficult clients who are often plagued by mental illness, disease, and/or addiction. Defendants can be outright hostile when they find out the "public pretender" (as I was often called) is on the case.

There are political pressures as well. The powers that be often look at one number to determine how successful a PD office is- indigent defense expenditures. Efficiency demands can create moral hazard for a PD's office. It's always cheaper to plead everyone guilty and move on.

I'm proud to report that I've never seen anything less than zealous representation from the Kaufman PD. These guys are good, they get good results, and they work hard for their clients. I credit Andrew for striking that delicate balance and managing not only his office and his clients, but the political pressures PDs face. Kudos.

Andrew bested this logistical Everest and has created a model office Kaufman voters should be proud of. I have no doubt that if elected, this experience will be invaluable as District Attorney.

Pot Meet Kettle

Thu, 18 Feb 2010 09:30:04 -0600

Nothing is more unjust, however common, than to charge with hypocrisy him that expresses zeal for those virtues which he neglects to practice; since he may be sincerely convinced of the advantages of conquering his passions, without having yet obtained the victory, as a man may be confident of the advantages of a voyage, or a journey, without having courage or industry to undertake it, and may honestly recommend to others, those attempts which he neglects himself
Samuel Johnson

I was in a band in law school and we penned a few original tunes to mix in with our Pat Green/CCR covers. Blogging is a lot like song writing. Some posts and songs require a lot of research, editing, and inspiration. Some just fall in your lap. Today's post arrived with the force of back to back lap dances from the Biggest Loser crew.

Here is a quote, from Rick Perry's hatchet man/Wilco DA John Bradley. The thread was about a judge who balked at the State's obstructionism and insistence on a jury trial in Collin County.

i'm bothered by the judge's complete lack of respect for the right of the State to a jury trial. The judge has no business publicly commenting, particularly before trial, as to merits of a prosecutor's decision. It shows a clear bias in the case before anything has even happened. It also shows ignorance of the law (or perhaps willful indifference to enforcement of the law).

JB comes about against judges publicly commenting on a prosecutor's decision. Wouldn't it be the height of hypocrisy for JB to public comment on a judge's decision? I mean, what kind of person would say it's wrong for a judge to do something, and then do it himself? Hmmmm.....

Here is a JB quote, barely a week old, made after a judge hesitated to award a 25 year sentence for a DWI case. The judge eventually sentence the defendant to 25 years, but JB was mad because the judge actually took the time to voice concern over our State draconian punishment ranges.

Bradley said the judge showed bias against the sentences handed out in Williamson County.
"The justice in this case became dependent upon geography," Bradley said. "He came to this county, I think, with a prejudice against the sort of sentencing that occurs in Williamson County

Teh hypocrisy doesn't end there. JB's crew actually offered this same defendant 25 years!

Feathers' attorney Sara Naylor said prosecutors offered a 25 year sentence in exchange for a guilty plea. Bradley said he didn't know the details of the rejected plea offer.

My brain is about to explode from cognitive dissonance.

For those keeping score here is the JB moral compass.

25 year sentence from plea bargain offered by Wilco DA = Good.
25 year sentence from concerned judge = Bad.

Judge speaking out against prosecutor = Bad
Wilco DA speaking out against judge = Good.

FDA vs. Pain Patients-

Tue, 16 Feb 2010 12:45:24 -0600

Good stuff from Reason.TV. Whenever our government masters want more control over our bodies they send out the addiction boogeyman. In reality, addiction hype is just another trojan horse whereby our government offers the convenient liberty for safety trade.

Should the government ban effective pain mediations like Vicodin? Watch this before you decide.

Applied Ethics- How to lose two clients in 30 minutes

Wed, 03 Feb 2010 19:30:56 -0600

This is a tough economy and many clients need until the last minute to come up with legal fees. No one plans on needing a criminal defense lawyer and even career criminals don't keep a defense lawyer fund handy. Ergo, it is not uncommon for a client to retain my services the morning of their court appearance.

In Kaufman, I have often met clients the morning of an announcement at my office, signed them up as a client, and then passed their case and requested discovery. This scenario is convenient for the client since they don't have to schedule an extra trip to my office and it gives them extra time to save money.

I have discovered one flaw in this last minute approach- it leaves little time for conflict checks. That led to my professional responsibility emergency this morning.

First, some background. I had two potential clients who were going to retain my services this morning for a court appearance at 9AM. By retain, I mean come in and make their first payment and sign a contract so I could start their case.

I met Client A yesterday for a brief consultation, and another I discussed the case with Client B via phone last week. They both dutifully appeared this morning in my office about 15 minutes apart and became (briefly) clients of Guest Law Firm PC.

I told each to meet me in the courtroom. I arrived in court and was reading the State's file on Client A when I realized I had just signed up two co defendants. Not only that, but the classic MPRE red flag two-people-in-the-same-car possession co defendants.

What's the rule on conflict in Texas?

Rule 1.06 Conflict of Interest: General Rule
(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or

I quickly explained the situation to my soon to be ex clients and told them I would refund any payment and forever keep our conversations private. If they wanted a referral I would be glad to assist, but I could not take either case. 1.06 does allow representation of conflicted parties if the parties are made aware and consent. I didn't go that route, but here is the rule.

(c) A lawyer may represent a client in the circumstances described in (b) if:
(1) the lawyer reasonably believes the representation of each client will not be materially affected; and

(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.

(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Dropping two cases in one docket was bound to generate some debate among the lawyers present. One attorney advised I could keep one client and add a disclaimer to the contract. I dissented. I felt keeping either case was improper, even with consent of the parties.

I believe that having discussed the case with both parties I would have an unfair advantage should this case go to trial and/or should one party implicate the other. I believe this met the definition of "materially affected" in (2). In a co defendant possession case the classic defense is- "The drugs belong to X, not me." There is simply no way to disclaim/notify your way out of that scenario. It's a conflict, withdraw and move on.

A prosecutor in the courtroom agreed with my decision and stated that "You can always get two more clients, but if you lose your ticket (law license) you won't get anymore clients." That's a great line, I'm going to borrow that.

I have no doubt that some defense lawyers would stay on as counsel in a similar situation. Why? Ignorance of the ethical rules, knowledge that the odds of enforcement are low, and the economic reality that losing two fees at once really sucks in this economy.

Trial Stress

Sun, 31 Jan 2010 19:19:58 -0600

I had a DWI jury trial for most of last week. I don't blog about trials or cases in detail, and I'm not going to start here. But I would like to talk about the experience of trial stress and what it's like to represent a defendant in front of a jury of her peers.

I usually start feeling trial anxiety the weekend before. That is when my thought process becomes dominated by visions of voir dire and opening statements.

If my mind isn't occupied with other matters then mentally I'm in trial. I often visualize the scene, projecting myself into the trial. I can see the jury, the prosecutor, and the courtroom.

There can be some spill over into real life. For example, I'll be driving and start gesturing with my hands to emphasis a point in front of the jury that's in my mind. My wife is getting used to this but still asks me what I am doing some time. I'm going through the motions, literally.

Trial Sleep
Sleep patterns are grealty affected by trial stress. I expect to wake up at least an hour earlier than usual during a jury trial. My usual sleep pattern is waking up between 4-6, going back to bed until 7 then starting my day. On trial days the first time I wake up is the last time. Whether it's 4 or 6 am I can't go back to sleep. Adrenaline and anxiety combine to form a substance with more kick than coffee.

I'm ready to get to the office and tackle that day's trial challenge. Not that I haven't already prepped the case. I work a case up well before trial. Usually by the pre trial hearing I've spotted the legal and factual issues and decided what my angle is. But that's never enough to get me through trial without more prep work. Why?

Criminal jury trials are never completely predictable and unexpected issues are to be expected. Stories change on the stand, the state has their own objections, the judge may ask you to research an issue before he rules etc. It's a rare jury trial that does not include a few moments of research panic.

S L O W D O W N
The trial adrenaline/stress have led to my strict no coffee/soda on trial day policy. Stimulants are not needed when you feel like a hummingbird on meth. Relax, take deep breaths, and exercise whenever possible.

I'm not embarrassed to admit that sometimes I exhibit the tell tale signs of jury trial adrenaline- shaking hands, nervous pen clicking, rocking back and forth in my chair etc. By far my worst bad trial habit is talking too fast.

These get better with each trial, but have not completely disappeared. The first day of trial is usually the worst, by day 3 of trial most of the adrenaline is gone.

Why so serious?
What is the source of trial anxiety? The defense lawyer/freedom fighter/Constitution protecting patriot in me interprets trial stress as a sign that I fully appreciate the awesome responsibility of defending the liberty of the accused. If you are nonchalant about your client who is facing incarceration, you shouldn't try criminal cases.

Further, our pro conviction appellate courts have created a situation where you must make a perfect objection every time in trial. If not, if you cite the wrong subsection of a statute or can't instantly think of the right case to argue, you have just waived your client's rights forever. Fun.

Every time a bell rings....
A great deal of pre trial anxiety is the theater/public speaking aspect. I was a thespian in high school and vividly remember the adrenaline inherent with live performance. My awesome skills as a player were rewarded with the lead in It's A Wonderful Life. I easily speak more lines in a criminal trial than George Bailey ever said on stage. Back then if I was off or forgot Zuzu's name no one went to jail. Trial is a high wire act, a solo performance in front of the public with your client's freedom on the line.

I enjoy trials after they are over. I learn something new every time- about myself, the prosecutor, jurors, the judge. Trial is often the best CLE, with unique lessons and costs. Emotionally draining, mentally exhausting work these jury trials are. And that's how it should be-

You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.
—Clarence Darrow, Closing argument in "Communist Trial

Penn and Teller, Austin Police Chief, Netroot Nation, Inter Alia

Tue, 26 Jan 2010 21:14:26 -0600

Well my trial ended so now I've got some time to blog. Here is roundup of sorts I was working on last week.

Want to be on Penn and Teller Bullshit?
I got a call from a producer with Penn and Teller looking for an interview on sexting. I wrote a general post on the laws in Texas but BS is looking for an attorney or defendant who have been involved in a sexting case. Particulary for defendants who have had their lives ruined by overzealous puritanical prosecutors. BS will be in Dallas in February to film. Email me if you are interested.

Austin Police Chief Calls
Got a call from Austin Police Chief Acevedo today. Art wanted to know if I wrote some article about him on the Ellis County Observer. I informed Art that I did not in fact pen this article, but I did write this piece on his warrantless electricity snooping program.

Netroots Nation
Finally, I'm working on a panel for Netroots Nation. The topic? Guess. I've got a speaker from LEAP and NORML lined up, should be fun. If you want to speak to a room full of uber liberal activists about the end of the drug war let me know. Did I mention it's in Vegas?

KBH on the National Criminal Justice Act

Mon, 25 Jan 2010 11:53:49 -0600

What is the National Criminal Justice Act? It's a commission proposed by Jim Webb (D) to evaluate the shortcoming in our criminal justice system. From Senator Webb.

The National Criminal Justice Commission Act of 2009 that I introduced in the Senate on March 26, 2009 will create a blue-ribbon commission to look at every aspect of our criminal justice system with an eye toward reshaping the process from top to bottom. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. This legislation has already garnered wide bipartisan support in Congress and from interest groups representing a range of backgrounds and political viewpoints.
Why We Urgently Need this Legislation:

With 5% of the world's population, our country now houses 25% of the world's reported prisoners.
Incarcerated drug offenders have soared 1200% since 1980.
Four times as many mentally ill people are in prisons than in mental health hospitals.
Approximately 1 million gang members reside in the U.S., many of them foreign-based; and Mexican cartels operate in 230+ communities across the country.
Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

America's criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness. Our failure to address this problem has caused the nation's prisons to burst their seams with massive overcrowding, even as our neighborhoods have become more dangerous. We are wasting billions of dollars and diminishing millions of lives.

We need to fix the system. Doing so will require a major nationwide recalculation of who goes to prison and for how long and of how we address the long-term consequences of incarceration.

Being a concerned citizen I emailed KBH and asked her to support this measure. As a former prosecutor I have seen the destruction caused by overzealous law enforcement. Arrest, prosecution, probation, and a criminal conviction are especially devastating on the thousands of young adults we prosecute annually.

It's about time we evaluated the investment of our tax dollars and the forfeiture of our liberty. I'm pretty sure we can find a better way forward than the status quo. A blue ribbon panel is a great way to start the conversation.

One thing I can say about KBH is that she responds fairly quickly to my emails. I really appreciate a prompt and courteous Senator. My only criticism is that the response says nothing about her position, but she seems eager to listen to my views on criminal justice reform. I'll be sure and forward those ideas to her post haste.

From KBH-

Dear Friend:
Thank you for contacting me regarding the National Criminal Justice Act of 2009. I welcome your thoughts and comments.

On March 26, 2009, Senator Jim Webb (D-VA) introduced S. 714, the National Criminal Justice Act of 2009. This act would establish the National Criminal Justice Commission, which would undertake a comprehensive review of the criminal justice system. The Commission would focus on incarceration policies, prison violence, and prison administration. After examining the current system, the Commission would be required to submit a public report to Congress and the President.

S. 714 has been referred to the Senate Committee on the Judiciary, on which I do not serve. Should this legislation come before the full Senate, you may be certain I will keep your views in mind.

I appreciate hearing from you, and I hope that you will not hesitate to keep in touch on any issue that is important to you.

Sincerely,
Kay Bailey Hutchison
United States Senator

Senator Cornyn hasn't gotten back to me yet. I'll post his response when available.

East Texas DA can't use tax dollars to defend highway robbery program

Sat, 23 Jan 2010 09:09:04 -0600

Recently, Shelby County District Attorney Linda K. Russell, found herself on the working end of a civil rights lawsuit for allegedly supervising a highway robbery (asset forfeiture) scheme in which casino bound minorities where pulled over for traffic violations and then threatened with prosecution if they didn't sign over whatever cash they had to the State.

Linda wanted to use tax dollars (and forfeiture cash) to defend her case. Fortunately, the Attorney General put Linda in the same position as the victim of asset forfeiture- Linda will have to pay for her own defense sans government funds.

What happened in Shelby county is indicative of the problems with Texas AF laws. When you combine government greed, racism, and a lack of protection/due process for defendants you get malfeasance and corruption every time.

From DMN-

James Morrow was driving to Houston to visit his cousin when he was pulled over in the East Texas town of Tenaha for "driving too close to the white line."

The officer, Barry Washington, searched the vehicle and asked Morrow if he had any money, according to court records. Morrow, who is black, had $3,900. He said the officer took the cash and drove him to the Shelby County Jail.

That's where authorities threatened to prosecute him for money laundering unless he agreed to forfeit the money, Morrow said. He was never charged with a crime in the 2007 incident, and when he pursued legal action, he got the money back.

Driving too close to the white line isn't a crime in Texas. Still, James was detained and robbed by local police for alleged "money loaundering". Nice.

It gets worse.

Tenaha is a town of 1,112 along a U.S. highway that links Houston with several gambling destinations in Louisiana. Several motorists had large amounts of cash because they were en route to or returning from Shreveport casinos, Guillory said.
Other plaintiffs include an elderly black woman from Ohio who said that after being threatened with money laundering charges, she signed a document authorizing the seizure of $4,000; and an interracial couple from Houston who alleged that authorities said they would place their two children in foster care if they didn't hand over $6,000

What's the law on asset forfeiture in Texas?
Texas government theft/asset forfeiture laws are found in Chapter 59 of the code of criminal procedure. Basically the state can seize "contraband" or property used in the commission of, or property that is the profits from a crime.

Wouldn't that require an actual conviction for a criminal offense? Not so fast. No conviction is required to steal your property. In fact, the State doesn't even have to actually charge you with a crime to file an AF case.

Worse, even if you are later acquitted (found not guilty), the State can still try and steal your property. Forfeiture hearings are civil, and the State need only show by a preponderance of the evidence that your property is contraband.

Most asset forfeiture cases are unopposed. AF victims are mostly poor and can not afford an attorney to fight the seizure. These defendants find themselves alone against the awesome power of the State's forfeiture machine. In civil cases when you don't show up the Plaintiff gets a summary or default judgment. In my experience many, if not most, forfeiture cases end this way.

A portion of the money, cars, and property seized become part of a DA slush fund for Xmas parties etc.

This monetary incentive, combined with the lack of court appointed counsel for the victims of AF, create the perfect environment for malfeasance.

Sharon Keller = "Not Exemplary"

Wed, 20 Jan 2010 13:39:45 -0600

The Sharon Keller findings of fact were issued today. Basically, Judge Keller failed to act as an "exemplary" public servant, failed to foster the open communication we should expect from judges, and even failed to learn anything for her mistakes; but ultimately the blame lies with the defense. Nice.

Judge Keller's conduct, however, was not exemplary of a public servant. She should have been more open and helpful about the way in which the TDS could present the lethal injection claim to the TCCA. She should have directed the TDS's communication to Judge Johnson. Although she says that if she could do it all over again she would not change any of her actions, this cannot be true. Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice. Further, her judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable. In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions.
Judge Keller's silence on several occasions conflicts with the ideal that courts
should foster open communication among court staff and litigants. But Judge
Keller's omission did not cause the TDS to be late in its filin,& to forget the other
available avenues, or to fail to have any of its experienced lawyers contact the TCCA.
She did not violate any written or unwritten rules or laws. Of course, that does not
absolve her of the responsibility to ensure that the courts remain fair and just. Her
conduct, however, does not warrant removal from office, or even further reprimand
beyond the public humiliation she has surely suffered.

In the end, perhaps this entire ordeal can have positive consequences for the
future. The TCCA has reduced its oral tradition for its execution day procedure to
written form, which will provide clarity and certainty moving forward. Appellate
counsel. including death penalty lawyers, certainly now know of all of the available
avenues to present a claim, even after the clerk's office has closed. Finally, we
should all be reminded of the responsibilities a public servant has to ensure and
promote fairness in the criminal justice system.

I take issue with the last sentence. How can we be reminded of the responsibilities of a public servant when we absolve a public servant of her blatant unfairness and bias?

This ruling is mind numbingly frustrating and reminds me of the hyper technical arguments the State often uses to challenge defense arguments on appeal. The rule in Texas seems to be that the police, prosecutor, and judge can make mistakes but the defense lawyers must constantly pursue perfection less our objections be waived. In this case the defense lawyer had another possible way to file his case and since he didn't do that Judge Keller's outrageous conduct is given tacit approval and immediately forgiven. This was an opportunity to stand up to a biased judge, instead we pile on defense counsel.

Kaufman County Judicial Evaluation

Sat, 16 Jan 2010 15:54:58 -0600

The Kaufman County Bar Association is conducting our soon to be annual judicial evaluations. If you are a member of the Kaufman Bar, or a lawyer who practices in Kaufman county and interested in becoming a member shoot me an email and I'll send you the forms.

These forms are, of course, completely confidential. We hope to have the results in the next few weeks.

Texas DPS Controlled Substance Testing Manual

Tue, 05 Jan 2010 12:57:45 -0600

Just got this in last week. It includes the testing procedures for controlled substances. In your typical dope case the DPS lab sends a short one page summary of the results of their testing. ADA's never think to question the veracity of these results. The assumption is that the lab did everything right, and the dope is dope. If you want to even try to second guess DPS lab work here is the place to start.

Texas DPS Controlled Substance Testing Manual

You can sue the county jail

Mon, 28 Dec 2009 14:40:27 -0600

At any given time a few of my clients are in jail. Every defendant experiences the humilation of being booked in and bonded out, but a few are trapped in the county jail for extended periods of time. One things counties hate spending money on is inmate health care. Providng free health care for "criminals" is not a winning political theme.

I get a few questions from inmates and their families on what to do if they don't receive proper medical attention. I advise them to ask for a nurse as frequently as possible, and in writing, until something is done. Each county jail has different policies for dropping off prescriptions etc. But the jail is ultimately responsible for providing a minimum level of treatment for their inmates.

What happens when a county inmate is denied medical care, and suffers irreperable harm as a result? Recently Dallas county's notoriously mismanaged and dangerous jail met the working end of a 1983 civil suit. The defendant won at trial, and the county appealed. Dallas would rather pay lawyers than pay an inmate they almost killed.

Here is the lowdown on Shepherd vs. Dallas County; a recent decision from the 5th Circuit (circuit as in Federal, not State) court of Appeals.

Facts-
Stanley Shepherd was a "pre trial detainee". That's a nice way of saying he was being incarcerated even without a finding of guilt. Stanley had a history of hypertension and was being treated with Clonidine. Dallas county jailers were aware of this condition, but refused to provide him with the required daily prescription. Stanley suffered a stroke, and is now confined to a wheelchair because Dallas was too cheap and/or incompetent to treat Mr. Shepherd. From the opinon-

For the next seven weeks, Shepherd received no medical treatment. His medication was not dispensed as prescribed, and no medical provider checked his blood pressure. The record shows that he and his wife, who was aware of the situation, complained to jail staff and medical personnel about the lack of treatment. His wife, in particular, repeatedly expressed the concern that Shepherd would have a stroke if he did not receive his medication regularly.

Stanley filed a federal 1983 suit challenging the conditions at the jail.

What's a 1983 lawsuit?
1983 lawsuits are federal suits based upon constitutional violations. For county inmates there are two main causes of action. From the opinion-

Constitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a “condition of confinement” or as an “episodic act or omission.” Hare v. City of Corinth, Miss., 74 F.3d 633, 644–45 (5th Cir. 1996) (en banc). If the plaintiff has properly stated a claim as an attack on conditions of confinement, he is relieved from the burden of demonstrating a municipal entity’s or individual jail official’s actual intent to punish because, as discussed below, intent may be inferred from the decision to expose a detainee to an unconstitutional condition.

In this case, Shepherd showed that the chronically mismanaged and understaffed jail created a condition where inmates were denied basic medical care. This wasn't hard. Dallas has historically had one of the worst run jails in the country.

1983 lawsuits can be an effective way to pierce the veil of sovereign immunity state and local governments so often grant themselves. But for the prospect of writing more checks, you can bet local pols would remain deaf to the concerns of pre trial detainees and their appalling treatment.