Dallas Criminal Defense Lawyer Blog

The story of Cory Maye encapsulates the worst of our drug war- racism, injustice, loss of civil liberties, and needless death. Drew Carey produces another must see Reason.TV episode.

Here is an article I wrote for the Ellis County Press.

What is habeas corpus?

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." - United State Constitution Art. 1, Sec. 9

A Writ of Habeas Corpus (Writ or WOHC) is one of your most basic and fundamental protections against tyranny. Habeas Corpus is a Latin phrase that roughly translates to "show me the body." WOHC originated in England as a check on the king’s power.

If the king locked you up you would file a Writ of Habeas Corpus and ask the king to "show you the body," or tell you why you are incarcerated. Today writs of habeas corpus are commonly used in Texas criminal cases.

Writs are filed to challenge the state’s restraint on your liberty (incarceration, probation etc). Without Writs the State could throw you in the county jail for no reason forever. Writs prevent fundamental abuses of the criminal justice system.

Here is a quick overview on how Writs protect your rights- You are driving home from work and the police pull you over for speeding. You have a marijuana joint in your pocket. Overcome with guilt you confess to the police and ask for forgiveness. The cops arrests you and take you to the Ellis County Detention Center. Bail is set at $50,000,000.

Bail
Writs are commonly used to get bail lowered, or get bail set if bail has been denied.

Any criminal defense lawyer who takes court appointments (indigent defense) will spend a lot of time on bail writs. After all, indigent defendants who cannot afford a lawyer usually cannot afford bail.

A bail Writ basically states that you are being held in the county jail, convicted of nothing, yet you are denied the ability to leave the jail. Ergo, a Writ is used to challenge this restraint.

Challenging A Prosecution
After getting bail lowered to $500 you are released. Three weeks later the state files a marijuana case against you. You have a jury trial and your brilliant defense lawyer helps win an acquittal (not guilty).

Ten years later State files a misdemeanor case against you for the same marijuana charge. Again, WOHC to the rescue. Writs are also used to challenge a fundamentally flawed prosecution.

Cases barred by limitations (too old) or double jeopardy can also be attacked with a Writ of Habeas Corpus.

Post Trial
If you are found guilty in a case and wish to challenge the conviction the usual route is an appeal. However, some constitutional and jurisdictional issues can be raised with a WOHC. Any error raised in an appeal cannot be later raised in a writ. A common claim in post trial writs is "ineffective of counsel."

DEA managed to bust some San Diego State students who were allegedly selling drugs. Since when does the SDSU party scene warrant federal intervention? The investigation started when SDSU lost a student to an overdose. The DEA loves piggybacking on tragedy to try and legitimize their existence.

From the DEA-

“Our children are our biggest asset and absent a safe, drug free learning environment, their chances of succeeding are greatly diminished. The San Diego State University Police and SDSU administration are to be commended for their swift actions in confronting the drug use problem on campus,” said DEA Special Agent in Charge Ralph W. Partridge. “This investigation spotlights two tragedies. The tragic drug overdose deaths of two college students and secondly, the shattered futures of those students who choose to continue to engage in the illicit sale and usage of a myriad of controlled substances. A drug free learning environment for our children should be the norm, not the exception.”

Notice the instant invocation of "the children." Drug warriors love to talk about children. One of the easiest way to influence an argument is to use fear. It's a cheap motivator, yet highly effective.

Pathos aside, college students are not children. College is the time when young adults learn to operate in the real world- a world that is not drug free. The last thing college students need is to be arrested by the same DEA flunkies whose propaganda they have rejected.

DEA agent Patridge talks about the "two tragedies" of this investigation. Self awareness is in critical supply at the DEA. Prohibition causes overdose deaths and the DEA chose to shatter these futures.

Barack Obama and George W Bush were fortunate that the DEA did not decide to shatter their future. Obama and Bush both experimented with drugs as young adults and went on to live productive lives. Why do these students deserve any less?

A great quote to finish on.

"Cocaine was banned in 1914, and marijuana in 1937," said David Borden, executive director of StoptheDrugWar.org, "and yet these drugs are so widely available almost a century later that college students can be hauled away 75 at a time for them. That is the very definition of policy failure.. Instead of throwing away money and law enforcement time on a policy that doesn't work, ruining lives in the process, Congress should repeal drug prohibition and allow states to create sensible regulations to govern drugs' lawful distribution and use. At a minimum, the focus should be taken off enforcement," said Borden.

I had a ticket case in Dallas today. If you get a ticket from the City of Dallas you are sent to the Dallas Municipal Court. The court is located downtown at 2014 W Main.

I needed to work out a traffic violation with the prosecutor. Sounds easy enough. However, going to an unfamiliar court and learning the process is always an experience. Here is how I spent the morning at the Dallas Muni Court.

First I went to the main information desk. A very friendly employee informed me that I needed to visit "Station 11" to "register". Station 11 is not as impressive as it sounds. S11 is a walk up window with an "11" placard dangling from the ceiling.

Registration was fairly simple. I handed another very nice employee my bar card and driver's license. My information was entered, I signed some form, and was then issued my own municipal court ID number. I may also have received a concealed handgun license, I'm not sure.

Next, I went in search of a prosecutor. I found my courtroom and met a very helpful city attorney. We discussed the case and agreed on a resolution.

Since my case was not on the docket I was told I needed to "print the screen" for my case. I was sent upstairs to find what has to the oldest working computer in Texas. It looked like a Dharma Initiative computer from Lost. It even had that 80's computer staple, the green and black screen. Actually using this public computer felt as sanitary as typing on a public toilet. However, my client needed me to be brave, so I pressed forward.

Here is how to use the Dallas Muni Ticket Computer.

1. Hit the "Clear" button to start a new search. (No "clear" key on my work computer, apparently clearing was the was the killer app in 1982).
2. Type "MN/F" then the defendant's name. (Sometimes, a list will appear with similar names, if not then the Global Thermo Nuclear War program starts).
3. Hit return to scroll down to find said name. (I couldn't figure out how to scroll up).
4. Recite an ancient bureaucratic incantation to get the computer to print.
5. When you are finished hit "clear" again.
6. Immediately begin antibiotic treatment.

I was informed the printer wasn't working. This was disappointing since a tractor wheel dot matrix printer brings back great memories. Again, a very friendly and helpful employee printed the screen from her computer (a much faster and cleaner Dell).

I took this printout back to the courtroom. The prosecutor (again very helpful) filled out the plea papers and the judge approved our agreement. I was then told to take these forms to the "Attorney's Window". The Attorney's Window is window 4, obviously. I approached window 4 and... no one was there. Luckily, the teller showed up in a few minutes. I handed her my paperwork, she took a few pages and gave a few back. Mission accomplished.

Dallas County District Attorney Craig Watkins is Texas' best DA when it comes to seeking out wrongful convictions. Mr. Watkins exoneration work has uncovered a startling trend- many wrongful convictions involve prosecutors who purposefully hid evidence from the defense.

Mr. Watkins proposes criminal and state bar sanctions for prosecutors who hide evidence to convict the innocent. This proposal has generated some wonderful debate on the issue from TDCAA, Grits for Breakfast, Bryan Attorney Steven Gustistis, Simple Justice.

Texas law limits discovery in criminal cases. However, the Constitution requires prosecutors to turn over "Brady Material". Brady material consists of exculpatory or impeaching information that is material to the guilt or innocence or to the punishment of a defendant.

Despite this requirement some prosecutors have hidden Brady Material to seek convictions, assuring that justice will not be done. Mr. Watkins proposes that prosecutors who intentionally send the innocent to prison be held responsible.

Williamson County District Attorney John Bradley thinks such a measure is "overreacting." Mr. Bradley has no program to free the innocent is his county.

A seemingly confused prosecutor Stacey Brownee from Longview posted this on the TDCAA message board.

I've got no problem with something like this (bar sanctions not criminalization) as long as its not just for prosecutors but for the defense too. If its the truth we are looking for, let's get to the REAL truth !!

Stacey does not understand the danger in hiding Brady Material has nothing to do with finding the REAL truth, or with defense lawyers. Defense lawyers have no duty to provide evidence for the State. Defense attorneys represent the accused and the rights of all accused.

The purpose of criminal trials in the United States is not to find the "truth", REAL or otherwise. American criminal justice is an adversarial system where the State has the burden of proof. "Seeking the truth" is for Inquisitorial Systems of criminal justice.

When we incarcerate the innocent we destroy the legitimacy of the criminal justice system. We need criminal/bar sanctions for this conduct now more than ever. The more freedoms, privacy rights, and Constitutional protections we strip away, the more innocent defendants end up in jail. Texas prosecutors have unfettered power to arrest, charge, and try cases. That power should come with the responsibility not to break the law, or hide Brady material.

We need sanctions only for intentional conduct. If we can jail Texans for failing to wear a seat belt, smoking pot, or playing poker then we surely can jail those who put purposefully put innocent men and women behind bars.

UPDATE- I have been following the great debate on this issue in the TDCAA forum. First of all, I have never experienced a situation where Brady material was denied. Like all problems, I'm sure prosecutor hiding Brady material is limited to a small minority. Second, the prosecutors on TDCAA really seem to hate the idea of extending discovery rights in Texas. For example, mutual discovery etc is mentioned. As if defense lawyers should become fact finding agents for the State.

Texas does need to modernize our discovery laws to reflect a new reality; privacy rights, 4th/5th/6th amendment rights are reaching new lows. The only way to avoid wrongful convictions in the future is a robust discovery process that gives defendants access to the information that can prove their innocence.

Headlines From Reuters-
Low-dose pot eases pain while keeping mind clear

According to these Reuters people something called a "double blind placebo controlled randomized study" concluded that smoking marijuana was a safe and effective treatment for pain.

Yeah right. Maybe these "researchers" and "medical doctors" didn't realize that Richard Nixon declared marijuana medically useless over 20 years ago. Tricky Dick didn't need any placebos or double blind randomizing to reach that conclusion. Nixon just knew pot was bad.

The hundreds of federal employees fighting marijuana use wouldn't lie to us. Who do these Reuters people think we are? They must be terrorist supporting marijuana addicts

Reuters states that this "research" was done by the Center for Medical Cannabis Research at the University of California. That can't be true. Since marijuana has no medical use their couldn't be an entire research center dedicated to studying the medical use of pot. That would be like having a Center for Medical Unicorn Research.

Luckily Americans don't have to rely on this "Reuters" for news. We can still turn to the bastion of truth and integrity ONDCP, for unbiased, honest, and credible medical marijuana information.

Grand Theft Auto IV (GTA IV) is this season's must have video game. In GTA IV you play a small time hood working his way up the criminal syndicate hierarchy. The game allows players to engage in a multitude of antisocial and criminal behaviors, including drinking and driving.Que the MADD hysteria!!!

Each year nearly 13,500 people die in drunk driving crashes and another half a million are injured in alcohol-related traffic crashes. This is why MADD is extremely disappointed by the decision of the manufacturers of the game Grand Theft Auto IV to include a game module where players have to drive drunk. Drunk driving is not a game and it is not a joke. Drunk driving is a choice, a violent crime and it is also 100 percent preventable. MADD is calling on the Entertainment Software Ratings Board to reclassify Grand Theft Auto IV as an Adults Only game, a step up from the current rating of Mature and for the manufacturer to consider a stop in distribution – if not out of responsibility to society then out of respect for the millions of victims/survivors of drunk driving.

First of all, 13,500 people do not die in drunk driving crashes. That is a complete statistical fabrication. However, no one besides me seems to care.

Second, Grand Theft Auto allows players to car jack, sell drugs, visit a hooker, kill said hooker, kill pedestrians, kill cops, kill any person you came across with an assortment of weapons, and drink and drive.

Out of that list what are MADD mothers most worried about? Simulated drunk driving. What kind of mothers would single out drunk driving over homicide and armed robbery? MADD's myopic Neo Prohibitionism is the reason the founder of MADD quit 20 years ago. MADD is seeking an Adults Only rating for GTA IV.

Gaming fans better buy GTA IV before MADD gets unconstitutional DWI roadblocks and illegal DWI forced blood draws added to GTA V.

What is the greater threat to America- MADD's Neo Prohibitionism, or GTA IV? Let's compare. GTA IV doesn't constantly lobby for the police state. GTA IV doesn't receive millions in tax dollars to destroy the Bill of Rights. GTA IV doesn't lie about "alcohol related fatalities" to achieve their goals.

Moral Panic aside, GTA IV is not a threat to your safety. MADD is a threat to all of our freedom. Reserve your copy today!

I'm getting a lot of searches for "Kaufman County District Courts." A few of these readers may want logistical information, not criminal defense lawyer musings. Here is some basic information for the public

Kaufman County District Courts
Kaufman has two district courts. They handle felony criminal cases, family law cases, and other civil lawsuits. Both are located at the downtown courthouse.

Kaufman County Courthouse
100 W. Mulberry St.
Kaufman, Texas 75142

86th District Court
Judge Howard Tygrett
This court is located in the middle of the 2nd floor of the courthouse.
Phone: 972-932-4331 Ext. 1251

422nd District Court
Judge B. Michael Chitty
The 422nd is located at the end of the first floor.
Phone: 972-932-4331 Ext. 1257

Today's DMN has a shocking story. Dallas Auto Theft Task Force agents knew that one of their snitches was going to rob a tractor trailer with $1m in cigarettes. The police, not wanting to ruin their important investigation, told no one.

This robbery took place in Waxahachie, in Ellis County. From DMN-

When several men broke into a Waxahachie truck terminal last October, tied up a security guard at gun point and crashed a semi-trailer loaded with $1 million in cigarettes through the front gate, they didn’t know one of them was a snitch for the Dallas County Sheriff’s Department.

A sheriff’s detective who was in contact with the informant that night said he didn’t know the crime would turn into an armed robbery. But the informant was surprised to be arrested months later, saying the detective knew for weeks what he was planning.

The Sheriff’s Department launched an internal investigation of its auto theft task force after local police officers complained that the detective hid key information from them to protect his informant.

That investigation cleared task force officers of any wrongdoing..

Task force detectives knew days in advance that the truck heist was going down at the Celadon trucking terminal in Waxahachie. They did not intervene and, in fact, weren’t even at the scene.

The investigation cleared task force officers of any wrongdoing. Why am I not suprised?

What would motivate law enforcement to allow crime? Bureaucrats are predictabty self interested actors. Government always acts to serve its own interest, not those of the public. This Auto Task Force wanted to bust a car theft ring, not prevent armed robberies.

Snitches are a disgusting reality of law enforcement. They pollute the integrity of the system. Snitches are most prevelant in drug cases. Someday Texas will ban police collusion with criminals. Until then, don't count on the Dallas Sheriff to protect you from their snitches.
Make sure a read the whole article for a great quote by
Grit's own Scott Henson. It's good to see that Mr. Henson is recognized as the expert on Texas snitches. Way to go Scott!

Finally, thanks to Terrence who pointed out this was a trailer robbery, not an armored car heist. I got my google reader stories mixed up. Sorry for any confusion.

I am a member of Law Enforcement Against Prohibition. LEAP is a wonderful group composed of ex and current law enforcement professional working to end the drug war.

My stint as a prosecutor made me eligible. However, unlike many LEAPers I was never a true believer in Prohibition. Many LEAP members have a conversion of sorts. Years of experience eventually lead them to realize the War on Drugs is a perpetual failure. Me, not so much.

My libertarian beliefs, combined with my economics degree from UTA, and my criminal law classes at Tech taught me that prohibition would always fail and always cause the same predictable externalities every time (death, corruption, violence, mass incarceration.) As a prosecutor my beliefs were sadly confirmed.

However, I have been writing some Op-Eds for LEAP. Recently I penned this article on Medical Marijuana for a Minnesota paper. It was in response to this column by a Minnesota DA. Enjoy-

A Minnesotan suffering from MS finds out that smoking marijuana gives her relief. Her doctor agrees that marijuana is a safe and effective treatment. This same woman is then pulled over by police, searched, and found with marijuana on her person. Should she be arrested, prosecuted, and incarcerated?

That is the question with medical marijuana. Do Minnesotans want to use limited law enforcement resources arresting the sick, the suffering, and the dying? Dakota County Attorney James Backstrom does.

The length to which supporters of marijuana prohibition will advocate bringing the weight of the criminal justice system down on the infirm amazes me. A quote by CS Lewis helps explain this cruelty.

"Of all tyrannies a tyranny sincerely exercised for the good of its victim may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."

Marijuana prohibition is a tyranny of good intentions. Proponents sincerely believe that the government should prohibit all use of marijuana regardless of circumstance. James Backstrom is not paid to question the law. His writing merely parrots federal "just say no" propaganda. Mr. Backstrom lacks either the ability or desire to question government policy, even it means arresting the dying.

I speak from experience. I was a prosecutor on many marijuana cases. I used some cheap rationalizations to justify the arrest and harassment of marijuana consumers. "I don't write these laws,” I told myself. Having defending medical marijuana patients I can now attest to the cruelty of their prosecution.

The truth is that federal marijuana law is not divinely inspired. The fact that marijuana is a Schedule 1 substance (like crack and black tar heroin) is a political decision with no basis in reality, or science. Richard Nixon is to blame for making ignorance federal law. Under Nixon's administration marijuana was arbitrarily labeled as having no medical use.

The truth is marijuana has many beneficial medicinal uses. Three FDA approved medicines have been derived directly from marijuana-Nabilone, Sativex, and Marinol. These medicines are used to treat MS patients who suffer from debilitating pain and spasms, as well as cancer patients who are suffering through chemotherapy.

Several patients actually receive rolled marijuana cigarettes directly from the federal government. During the 70's and 80's these patients proved in court they had a "medical necessity" that required smoking marijuana. The same federal government that claims marijuana has no medical use actually grows pot (at the University of Mississippi) and delivers it to patients across America!

If the federal schedule 1 designation for marijuana had any basis in fact, these drugs and patients would not exist. The American College of Physicians, Leukemia & Lymphoma Society, American Academy of Family Physicians, American Public Health Association, American Psychiatric Association, American Nurses Association, British Medical Association, AIDS Action American Academy of HIV Medicine, Lymphoma Foundation of America and Health Canada all advocate using marijuana as medicine. 13 States have programs that allow the sick to access medical marijuana without fear of arrest and incarceration.

It is time to reject failed Nixon-era policies and embrace the compassion, science, and common sense behind medical marijuana.

I've just finished the John Stuart Mill classic On Liberty. JSM was a 19th century philosopher and political economist. Inter alia, JSM is famous for his refinement of the harm principle. The harm principle is a foundation of modern libertarian (or classical liberal) thought. The HP as explained by JSM-

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Well, what about drug abuse? People do bad things on drugs. Shouldn't we just ban drugs so people won't harm others while high? JSM offers a radically simple solution. Instead of banning substances, we should only hold men responsible for actions that harm others. JSM explains-

In the frequent case of a man who causes grief to his family by addiction to bad habits he deserves reproach for his unkindness... but so may he [with] habits not in themselves considered vicious. No person ought to punished for being drunk; but a soldier or policeman should be punished for being drunk on duty. With regard to the merely contingent or... constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public... or to any individual except himself, the inconvenience is one society can afford to bear for the sake of the greater good of human freedom.

Compare Mill's view with these Prohibition apologetics by John McCain. Mr. McCain believes that drugs always cause intoxication and must be outlawed. The fact that we have hundreds of criminal laws that forbid every bad thing an intoxicated (or sober) individual could do does not matter.

Unlike Mr. Mill, John McCain does not believe that individuals are sovereign over their body and mind. The GOP presidential nominee believes that your sobriety, mind, and body are merely property of the federal government. (McCain also ignoresthe obvious hypocrisy of his wife's criminal acts as a drug addict).

Remember my Kaufman County Opportunity Costs story? Half of a felony court docket was there for possession drugs, the other half was there for violating the harm principle. Which group do you want to spend tax dollars to prosecute? Those who possess a substance, or those who harm others? On Liberty may be 150 years old, however it offers some fresh ideas for our tired drug war.
I look forward to the day when our country embraces the greater good of human freedom.

Dallas Mavericks small forward Josh Howard admitted to recreational pot use yesterday on a sports radio program. Josh has never failed any league drug tests. He simply chooses to use marijuana in the off season instead of the drugs approved by the NBA, DEA, and State of Texas- namely alcohol and nicotine. Here is a quote from Mr. Howard.

"What can I say? If you can do it and it's not affecting your everyday life, why stop? If I'm able to do it, but not while I play basketball, it lets you know I can quit whenever."

Owner Mark Cuban and Coach Avery Johnson both expressed regret at Howard's announcement. Mr. Cuban stated this "will be dealt with" in the offseason.

My question is- exactly what should be dealt with? Josh's crime seems to be being honest and showing no remorse over using marijuana.

Instead of silencing honesty we should use this opportunity to expose the common government lies about marijuana. The ONDCP ad "Pete's Couch" is a great example. Pot smokers are supposed to sit around all day doing nothing. Somehow, stoner Josh scored 18 points last night to help defeat the Hornets.

Here is more from ONDCP on the dangers of pot-

Marijuana abuse is associated with many detrimental health effects. These effects can include frequent respiratory infections, impaired memory and learning, increased heart rate, anxiety, panic attacks and tolerance. Someone who smokes marijuana regularly may have many of the same respiratory problems that tobacco smokers do, such as daily cough and phlegm production, more frequent acute chest illnesses, a heightened risk of lung infections, and a greater tendency toward obstructed airways.

Does any of that sound like the Maverick's starting small forward? Some could argue that Josh's struggles with new point guard Jason Kidd are a sign of mental impairment, but I digress.Here are Josh Howard's career stats. Despite ONDCP's terrible list of pot related problems Josh has managed to average 15 points and 6 boards a game for 5 years.

Josh is a professional athlete with access to the latest nutritional, health, and sports medicine information. Josh would not risk his body, or his $9M annual salary just to get high. If marijuana was as dangerous as the federal government claims no professional athlete would touch it. The truth is- many professional athletes get high because marijuana can be used safely and responsibly.

I wish more professional athletes had the honesty and courage of Josh Howard. There is no danger when Josh Howard gets high. There is no reason to arrest Josh or make him apologize to the public. It will be a better day when all Americans can use marijuana responsibly without fear of arrest.