Dallas Criminal Defense Lawyer Blog

I am a fan of the A&E show Intervention. It has a car wreck allure to it. The human misery, suffering, and (sometimes) redemption makes for great television.

Intervention shows the daily lives of drug addicts. At the end of the show the addict is suprised by an intervention and offered a chance to go to rehab. Most go to rehab and then we get a nice follow up to see if they kicked drugs.

Intervention is a great view into the drug subculture.

Intervention Lessons-

Lesson One- Drug laws have done very little to impact the supply and availability of drugs. The ease at which addicts can procure the most illegal substances (heroin, meth, crack) shows that our War on Drugs has made no progress in limiting supply. Addicts never quit using drugs because they are hard to get.

Lesson Two- Tough drug laws have no detterent effect on addicts. Drug addicts never stop and think about the multiple felonious acts they are commiting. Law enforcement and the threat of incarceration is an overhanging nemesis, but not much of an immediate threat.

Lesson Three- Jail does not "cure" addicts. Some of the addicts on the show are on probation and facing jail or have spent time in jail. The addicts are bothered by failing drug tests on probation, but not enough to quit using.

Lesson Four- It's ultimately the family unit, not the State, that has the most influence on addicts. It is the family that seems to cause and cure these addicts. Most of the addicts are the product of a bad childhood and enabling parents. Besides being a cause for addictive behavior the family is also the solution. The intervention at the end, which includes many family members, provides the motivation to enter treatment.

Lesson Five- Rehab can work, even if earlier treatment has failed. A lot of the addicts go to treatment and learn to deal with their addiction. Some have even gone to rehab before and failed. I am assuming that A&E provides top notch (ie expensive) treatment.

Suggestions for policy makers-
1. Quit incarcerating addicts. It is a waste of resources. Addicts get out of jail and are still addicts. The laws are not a detterent to addicts.

2. Expanding the role of treatment in the criminal justice system. I hate spending my tax dollars on anything. But warehousing addicts in jail is not effective, at least treatment/rehab has a chance to change behavior.

3. Government can not replace families. Families are what convince these addicts to get help.

4. Attack the black market. We must provide legitimate supplies for the drugs addicts want. Quit giving organized crime a monopoly on this market. It's a failed policy.

The Drug War was built on fear and propaganda. Hopefully shows like Intervention will lead to a rational drug policy debate that values human dignity above "tough on crime" posturing.

Labels: War On Drugs

I am on probation. I received a speeding ticket about 6 weeks ago. Allegedly, I was doing over 80 in a 65. Unable to think of an affirmative defense (insanity?), I pled no contest and received deferred adjudication. If I complete my probation the ticket will be dismissed (but the county keeps the fine, around $230).

This used to not happen. When I was a prosecutor we had badges. Prosecutor badges in Texas range from impressive large badges (think "The Shield"), to small pathetic stars (Sheriff Woody in Toy Story). We also had car windshield stickers that identified us as members of the Texas prosecutors association.

I never got a ticket when I was a prosecutor. I was "lit up" a few times. I always got a warning. Cops would check my registration and see the sticker showing I was a prosecutor. My badge was in my wallet with my license. Upon seeing one of the other cops would inquire who I worked for. We would chat about how I should slow down or the best way to get somewhere and then I would be let go.

I never said "I'm with the DA can I have a warning?" Cops would ask, and I would tell them. It seems like splitting hairs I know, but I did not use my official capacity to generate good will or ask for favors. It just happened.

It was like the police and I were on the same team. There was comfort in knowing that law enforcement was on my side. I had instant credibility with State Troopers. No need to ask to search my car or check my license for warrants. I was a good person.

I miss the lack of confrontation in those stops. No questioning where I was going or why I was in a hurry. It was like the trivial laws of the nanny state(speeding, seat belts) did not apply to me.

I had a cop tell me once that "Cops don't write cops tickets. It's called professional courtesy." I was prosecuting a case where a cop pulled over two speeders at once. One of the speeders was a cop and got a warning. The other was a civilian and got a ticket. The civilian took the case to trial and I dismissed it.

Why not let more drivers go with a warning? Why not treat all drivers like they are on the same team as the police?

Two reasons.
1) Revenue. Tickets are a cash cow for governmens.

2) Drugs/DWI. DWI (NHTSA) training starts by teaching cops that the public is the enemy. Drug seizures bring revenue (seizures) and prestige. Every traffic stop is a possible drug search.

Tickets are boring. DWI and Drug arrests are the Capital Murder of traffic stops.

Those two reasons have changed traffic stops. Peace officers have been replaced with law enforcement.

Have I gotten warnings before or after prosecution? Sure, lots of times.

Are cops bad people? Of course not. I have known a lot of them. Cops have a tough job and most do it very well.

The problems with law enforcement are systemic. We have too many malitum prohibitum crimes. We also instill distrust of the public with some police training (more on that in the future).

Labels: Police, Traffic Tickets

I am loathe to join the mass of presidential bloggers but this is too important.

Only Ron Paul has consistently voted against expanding the War on Drugs. He realizes that longer sentences and more enforcement are futile. Democrats should support this because minorities and lower income communities have been devistated by these policies. Republicans should support this because they are supposed to believe in smaller government and personal freedom.

Sadly, Ron Paul is alone in this issue.

He voted against millitary drug patrols, against random drug tests for employees, for legalizing medical marijuana, and adopted the Republican Liberty Caucas position that the War on Drugs has destroyed the Bill of Rights.

I agree with Ron Paul in that the War on Drugs can not be won by "getting tougher".

Every effort to get tougher on drugs either invovles 1) longer prison terms or 2) less privacy for Americans.

Longer prison terms do not work. Dealers are easily replaced once incarcerated. Texas is building scores of news prisons to keep up with our tough drug sentencing laws. Guess what? We still have drug addicts and drug dealers all over the State.

Less privacy is a step on the road to tyranny. The Supreme Court has made a mockery of the 4th amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

What is more important- Those words of the Founding Fathers, or busting some dope peddler who got pulled over for speeding? More often than not the Supreme Court values the bust over the right to privacy. Without moving a DEA agent into each home it is hard to imagine how much more privacy we can give up.

Why not have a War on Rapists? Or a War on Murder? Law Enforcement is a limited resource. Crimes with victims should take precedent. Would 9/11 have happened if the DEA and it's thousands of employees had been protecting us from terrorists instead of protecting us from drug addicts?

As a former prosecutor I can tell you that Prohibition and Incarceration do not work. Jailed dealers will be replaced as Americans will still choose to be drug addicts. I've seen drug courts do great work but it's a rare drug addict who is helped or cured by 6 months in State Jail.

American support the Drug War for the worst reason. Fear. The government can always sell less freedom to a scared electorate (Patriot Act).

Does Ron Paul have a chance? Doubtful. But he is right about the Drug War.

Labels: Federal Government, War On Drugs

No UNT law school in downtown Dallas, at least not for another two years. DFW will remain without a public law school and another chance to renovate downtown Dallas has passed.

Debate on the issue centered on the issue of how many lawyers Texas needs and which region of Texas needs a new law school.

Proponents of UNT law argued that Dallas needs more attorneys because Dallas currently imports lawyers from out of state law schools.

Why should that matter? Dallas imports Doctors, Teachers, MBA's, Computer Programers, Restaurant Managers from all over the US and the world. The idea that we should locally produce all the professional services we need was discredited by The Wealth of Nations.

Opponents of UNT law argued that there is not enough demand for new lawyers and that South Texas needs a law school worse than Dallas. I'm glad that the Leg thinks their are too many attorneys. The death of the UNT law school is good news for DFW lawyers (like me). Less lawyers means higher wages. The Lege thinks it is smart enough to balance supply and demand for legal services. That's a good economic model for the Soviet Union, but not for Texas.

The legislative body ignores the fact that free markets will determine how many lawyers an area needs. If there are "too many" lawyers the price of legal services will drop and lawyers will leave. If there are "too few" lawyers in an area prices will rise and more lawyers will enter the market.

We do not limit MBA or CPA programs like we do with law schools and we should not. We should allow more law schools because competition makes an industry better. Competition will make law schools and attorneys better.

I say this knowing that my alma mater Texas Tech School of Law would face direct competition from UNT law. Many students from DFW choose Tech because, inter alia, it is a public school and SMU is too expensive. Would competition destroy Tech? No.
If Tech had to compete with a public law school in Dallas it would make Tech better.

Labels: Free Markets, Lawyers

The ACLU reports that a Department of Justice Judge is going to recommend that the DEA end its ban on supplying marijuana for medicinal studies. Currently, the DEA will not supply the weed docs need for proper study.

Sounds like a logical move. Medical marijuana has been routinely dismissed as a "trojan horse" by the Bush Administration.

I wish this trojan horse wasn't necessary. The argument against prohibition should win on the logic of allowing free markets and free people to make decisions that do not harm others.

Marijuana should not be legal because it could possibly be medicine. It should be legal because we are free.

Alcohol isn't medicine. Tobacco doesn't cure anything. We tolerate these "drugs" because of tradition, not science.

The idea that cancer and AIDS patients are going to be arrested for pot smoking is something most Americans find revolting. Medical Marijuana generates an emotional response that other anti-prohibition arguments can not match. Americans want to help patients who are suffering. If only the suffering caused by prohibition was as compelling.

I spent so much time as a prosecutor on POM cases. I always wanted to give "deferred" so that it wouldn't destroy the defendant's chances for student loans etc.

I remember reading POM Police Reports and always asking "And?" at the end.

For example, the report summary would say "Pulled suspect over for speeding, 56 in a 45. A consent search yielded a small quantity of a green leafy substance believed to be Marijuana." And?

This is valuable law enforcement time and effort being documented for my prosecutorial review. Who is safer because of this arrest? What was accomplished?

That being said... I hope they allow these studies. Arresting recreational pot smokers is stupid, arresting cancer patients who smoke pot, is evil.

It's amazing what little news the Supreme Court generates these days. As a criminal defense lawyer I have become used to the appellate courts backing police officers in questionable search or arrest situations (Atwater vs. Lago Vista). Still the facts behind Los Angeles County vs. Rettele should shock even the most jaded criminal justice observer.

Police in LA County got a warrant to search a house for, get this... IDENTITY THEFT. Wow.. pretty scary stuff. Knocking before entry has been rendered uneccesary by the Supreme Court so the police break in unannounced.

The police swarm the bedroom and order the sleeping resident Rattelle and Sadler out of bed. The residents were both sleeping naked. The residents both try to get dressed but are ordered "not to move" at gunpoint.

The house had recently been sold. The suspects the police were looking for where black; they residents were white. The police made the residents stand naked for 15 minutes at gunpoint while they searched for ID theft evidence.

The residents sued arguing the search was "unreasonable" and violated their 4th amendment right. The Supreme Courts reply... Quit Whining, Law Enforcement is a tough job. The justices fall over themselves describing every danger an officer may face from weapons hidden in the bedsheets to hidden gunmen in the every nook and cranny.

Should police have to investigate the facts behind a warrant? Should the police have to use common sense during home invasion searches?

The SCOTUS answer-No and no. If an officers "probable cause" turns out to be wrong, it doesn't matter. The search is still "reasonable".

The majority concludes by telling us that "warrants will issue to search the innocent" and that officers face dangerous situations. No one is arguing that. The fact is that searching a residence should require some minimum level of fact checking. Police should be accountable for what would be a felonious action if conducted by a private citizen. At least the police did not kill an innocent person like the recent wrong house search in Atlanta.

I remember Criminal Procedure in law school. Case by case the 4th Amendment was stripped down to justify searches for drugs. I called it the Drug War exception to the Bill of Rights. The Supreme Court has made a conscious effort to justify every search because they believe that fighting crime is more important than our liberty.

When I was a prosecutor I never worried about appeals of convictions or searches. The case law in Texas is clear that most errors are "harmless" or "waived". Appellate courts see standing up for the Constitution as helping criminals and hurting law enforcement.

I believe the opposite. Holding police to higher standards will only help the public perception of law enforcement and lead to better prosecution in the long run. Searching homes is a dangerous situation, for the police and the residents. Before we allow police to break in unnanounced with guns drawn, we should require that they at least have verified the facts in the search warrant.

Thanks to The Agitator for inspiring this story.

Labels: Appeals, Police, Search Warrants, Supreme Court

Do rights matter if you don't know about them?

In Texas defendants plead guilty every day without ever talking to a criminal defense lawyer. Prosecutors and judges love this because it moves the docket and keep costs down.

Cases with defense lawyers take longer because we actually explain things like;
Why a stop is illegal;
Why the state's witness won't hold up at trial;
Why the state's plea offer may be bad;
Why the defendant needs to pay us before the next court date,

It seems that some judges encourage defendants to talk with the prosecutor before hearing a defendant's request for a court appointed lawyer. Why? Because most defendants will plead guilty and the county won't have to pay for an attorney. I never experienced this but the Texas Fair Defense Project has a great analysis of the problem in Texas.

HB 1178 would ensure that no defendant pleads guilty without signing a waiver of his right to an attorney. It ends the practice of prosecutors plea bargaining with pro se defendants. Prosecutors are not exited about 1178. See the TDCAA discussion.
Their main complaints about 1178 are 1) It will take more time and 2) They feel insulted that anyone would think a Texas prosecutor is only out to convict, not to see that justice is done.

I was a DA and worked with a written waiver process that complies with the statute. It worked great. The judge asked each defendant if he wanted to hire a lawyer, fill out a pauper's oath, or talk to me and sign a waiver.

90% would sign the waiver. Out of those I could get 90% to plead guilty and accept my plea offer. If you are a lawyer you can always convince someone with less than a high school education to take a plea bargain. It's not hard.

Defendant's want the process to end so they do not have to keep coming back to court or go try and hire an attorney. The process of being a defendant is more stressful than probation for many.

Quick pleas are great for judicial economy, not for justice. Criminal charges carry serious consequences. From DWI to POM a guilty plea can affect your life forever. Anyone should be allowed to plead guilty if they make an informed decision. But the huge disparitiy in education and experience between a pro se defendant and a prosecutor creates a situation ripe for abuse. HB 1178 is a step in the right direction.

Thanks to Grits for Breakfast for helping break this story.

Labels: Plea Bargains, Prosecution

A bill on red light cameras snuck out of the Texas house at the last minute.

Basically, cities can use red light cameras for the next two years, after that they must prove that the cameras have improved public safety. The NMA,National Motorist Association, notes that there are NO independent studies linking red light cameras to safety imrpovement. What the cameras do improve is Tax revenue. Faced with the loss of these Golden Geese I am 100% certain that every city will be able to "prove" that cameras improved public safety.

The speed traps of old are being replaced with digital cameras. I live in Ellis County and drive through a speed trap on I-45 every day. I hate speed traps, but at least you have an actual officer writing you a ticket. You could have a jury trial and cross examine the officer. Red light cameras offer no such due process. These are contracted out of 3rd parties whose only interest is making as much money as possible.

Due Process should be more important than catching red light runners or tax revenue.

The Star Telegram has a good article on the proliferation of "grow houses" in the area.

It seems that even though Marijuana is illegal and we've spent millions catching, prosecuting, and incarcerating pot dealers and users- people still want to use it!

IWTS Truth- Making someting illegal never eliminates demand, it just changes the suppliers.

The article, like most, doesn't look at the bigger picture. Why would people grow pot indoors? We don't have hundreds of indoor moonshine stills these days.

It seems that potent home grown weed sells for up to $500 AN OUNCE!

That's what prohibition gets you. A market so skewed that for around $6,000 in start up costs you can produce a plant that is as valuable as Gold.

Now that the media and law enforcement have identified grow houses as a problem let me give you a clue as to how they are going to try and stop this problem.

The electric company is going to report more "suspicious" electricity users. Your neighbors will be encouraged to spy on other neighbors (The Crucible). The police are going to start snooping around private residences on "reasonable suspicion" (ie Smells like pot, must be a grow house)- instead of investigating crimes with actual victims (murder, sex offenders, robbery etc).

All this idiocy goes away when marijuana prohibition ends. But until then, TXU is joining hands with your local law enforcement agency.

My advise- Don't buy a tanning bed in the near future unless you want a SWAT team over.

Labels: Marijuana, Police, War On Drugs

When I was a prosecutor nothing frustrated me more than Assault/Family Violence cases. The only thing worse than a "victimless" crime, is a crime in which the victim actually works against you.

Early in my ADA career I approached AFV cases with a sense of moral certainty. I had a desire to put away "wife beaters." I had a crime with a victim. I felt good about prosecuting AFV in a way I couldn't about DWI or POM.

I believed that I was helping battered women and stopping the violence from getting worse.

The problem with AFV is the "victim". They lie, have substance abuse issues, and love the defendant.

A common factor in AFV cases is alcohol/drugs. A fair percentage of AFV cases involve two intoxicated parties. Put a drunk man and woman in a fight, and who wins? Usually the man, so he goes to jail.

In the heat of a drunk argument some "victims" actually call the police and allege family violence just to have their spouse/partner arrested. Even when threatened with a charge of Filing a False Police Report these "victims" still insist they lied. Basically they confess to a new crime to help the defendant. All this, because victims love the defendant. As a prosecutor you can't, or shouldn't, try cases with such problems.

AFV victims will do anything to get you (the ADA) to "drop charges." Many victims sign an "Affidavit of Non Prosecution." AONPs are not binding and have no legal effect on a case. An AONP just memorializes the victim's desire to have the case dismissed. In short, AONPs are good CYA material for ADAs.

So what to do if you are the prosecutor? You have a case in which the victim wants you to quit what you are doing and a stack of other cases to work on.

I started out with the idea I could work around these victims. I knew what was best for them and I needed to convict the defendant against the victim's wishes.

These noble ideas were reinforced at baby prosecutor school. At prosecutor school we were taught to never drop an AFV case, they showed us dead victim photos to reinforce the idea. We learned that if a woman if ever arrested for A/FV we should probaly investigate the man too.

I dutifully set my A/FV cases for trial and tried to supboena the victim to show up.

Victims are smart, they will skip the trial and move so they can't be subpoenad. I learned this the hard way. It made me cynical and pragmatic. Prosecutor school be damned. So I had to find a better way to deal with AFV cases.

Something feels wrong about just dismissing AFV cases. It seems to send the wrong message. And if the defendant comes back and kills the victim the DA's office is going to make headlines for the wrong reason.

A common solution among DA's is requiring the victim, defendant, or both to attend counseling before dismissed a case.

In Bowie County I required the Defendant to attend a class on how to handle his anger/alcohol issues or plead the case out with just a fine and court costs ("time served", defedants love that). That way, the defendant had a record and could be enhanced in the future.

Either way- prosecuting a crime with hostile victims was never easy, and very frustrating. It showed me that the state can have the best intentions, but people will make their own decisions and can't always be helped.

Labels: Family Violence, Prosecution

Dary Spence is a canidate for City Marshall (Police Chief) in Ennis, Texas. I live in Ennis, it's a great city and one of the few in America that elects a police chief.

Daryl's blog lists his ideas for cleaning up the city They include being tougher on drug dealers and gangs, more cops in schools, and better training.

Daryl's also has been accused of calling the current police force corrupt.

This has generate some heated blog comment debate of it's own.

What no one mentions is the cause of corruption. Why would police be corrupt? Because drug dealers have lots of money. Why do drug dealers have lots of money? Because drugs are illegal. We can only solve the problem of police corruption by eliminating the cause, not by changing Police Chiefs.

It does not matter who the police chief is. The system is set up to foster corruption.

Example- Marijuana is illegal. Making any product illegal does not elminate demand. It just changes who the suppliers are. Marijuana users have to buy their goods from the black market (drug dealers) instead of from Phillip Morris or Pfizer. If corporate America could sell weed, every dime bag selling weed dealer would be put out of business. We could tax and regulate a legal product and focus law enforcement on other priorities.

We have given drug dealers a steady source of income by eliminating legitimate competition. Drug dealers want to make the most money without going to jail. A simple way to avoid incarceration is to pay the people who could arrest you, the police. It's a cost of doing business.

I'm not saying the Ennis PD are corrupt. I'm new to the community and I have no experiences with the PD good or bad.

I do know that our War on Drugs fosters corruption. Daryl Spence has ideas that are fit for our current system. But to truly win the Drug War, we have to change the system.

Labels: Ennis, Police, Texas, War On Drugs

Gritsforbreakfast has a great article on House Bill 1808 which would create more drug courts in Texas.

Being a former prosecutor I can tell you that incarceration alone is not the best tool for probation violators and drug addicts.

When I was a prosecutor in Bowie County Judge Jeff Addison set up a brilliant drug court, a real model for the whole state.

Before drug court here is how the system worked.
John Doe gets a DWI. He goes to probation, fails a drug test, doesn't do community service, gets behind on his payments, and then quits reporting. Probation officer gets sick of John Doe and decide to file a Motion to Revoke his probation. John Doe gets revoked, get's an attorney and does from 30-120 days in jail depending on his criminal history. John Doe gets out and is the same drug addicted mess he was when he went to jail.

After Drug Court-
John Doe fails his initial drug screen on probation. He gets sent to "drug court". Every Friday the judge has a room full of probationers who are required to show up and an explain their actions.
Failing or refusing a drug test always meant a weekend or two in jail. Then you had to go to NA/AA.
Don't go to NA/AA, then more weekends in jail. There are lots of options for punishment besides weekends in jail, more community service, drug counseling etc.

The brilliance of drug court is, it keeps the defendant on probation and the constant monitoring (and weekends in jail) keeps them motivated. The defendants hate drug court at first. But it saves the county money because there are less people in the jail doing 30-120 days sentences.

In Bowie County we achieved higher probation completion rates and a lower jail population. It also let the judge get involved in the lives of the Defendants to a degree that a typical Motion to Revoke Probation does not allow.

I hope the whole state gets behind this idea.

Here is the Grits Website. I have to learn how to insert links better someday.

GRITS FOR BREAKFAST

Labels: Drug Court, Probation, War On Drugs

I finally joined the NORML legal committee. NORML is the National Organization to Reform Marijuana Laws. I have always known that the criminalization of Marijuana is pointless and morally bankrupt. It leads to corruption and make billionaires out of drug lords. My only trepidation has been that so many people believe the government propaganda about this drug.

Marijuana is safer than alcohol and cigarettes, and it's a lot of fun to boot (so I've heard). Tax it, use the money to lower my property taxes.

I was never a prosecutor who got exited because some kid had "dope" on him. Who is safer in our country when the cop pulls over a citizen and finds a dime bag?

Crimes should have victims, POM (Possession of Marijuana) doesn't.

Finally, it seems to be the unspoken truth among prosecutors that most under 30 have actually smoked weed in their liftetimes. After all, most prosecutors did go to college.

If it's good enough for George W. Bush to use and Bill Clinton to possess (but not inhale), it should be legal for everyone.

I'm sure this move puts me on some terrorist watch list and I know my political aspiriations are over, but it's the right thing to do.

Labels: Marijuana, War On Drugs

My first post- You have to start somewhere. I was in Rome over the last week and I did something I would never let my clients do; I signed a confession, of sorts.

In Rome it is illegal for a taxi driver to ask if you want a cab in the airport. You, the passenger, have to ask the cabbie, but you can only ask in a special pre determined "zone".

When my wife and I left the plane at the Rome Airport we were approached by a man asking if we needed a cab. We said yes. He quoted us a price, 75 euros, and we agreed.
Instantly we were approached by the Millitary Police (carrying machine guns no less), and asked what had happened.

We explained, thinking nothing was wrong. We were taken (very politely) to a back room and told we could leave after I signed a statement detaling the crime.

I, wanting to leave, and not being informed of any 5th Amendment rights in Italy, quickly signed to get on with my day.

I realize now why some people falsely confess, and even plead guilty in court. I have clients who want to "get this case over with", or after hours of interrogation just tell the police what they want to hear. Police have a saying "you can beat the wrap but you can't beat the ride". I couldn't stand a "ride" of 20 minutes. Criminal cases take months if not a year or longer.

So I signed. I didn't consider myself and victim and I didn't want to sign anything. I wanted to go take a shower after 16 hours of travel.

This is also disturbing on many other levels. How can it be a crime? it's business, between adults. I wanted a cab and he offered one. And, it took two police officers 20 minutes to handle this "crime". Shouldn't they be guarding the airport?

Victimless crimes shouldn't exist. I was informed that the maximum price for a cab was 40 Euro. I guess the police were trying to "protect" me from overpaying.

Armed with this information- I went to the cab stand and asked for my 40 Euro cab ride. I told them the police said it was the law. The cabbie said "Let the police drive you to Rome".

We ended up paying 70 Euro for the next cab.

Labels: Cabs, Economic Crimes, Italy