Dallas Criminal Defense Lawyer Blog

Plano PD has lawyered up on the Tray Boswell DWI case. I filed an open records request seeking emails, communications, documents on any internal investigation, inter alia, to confirm or deny the story. The City of Plano is asking the Attorney General for permission to keep these documents secret. Allegedly, three officers conspired with Mr. Boswell's wife to set him up for DWI.

The government always chooses the path of least disclosure. The City of Plano is no different.

When the story broke Plano City Attorney Dianne Wetherbee said the officers conducted themselves in an appropriate manner involving the incident. Now the City Attorney is pleading with the Attorney General for permission to keep these records secret. If, as Mr. Wetherbee stated, these officers conducted themselves appropriately then why not release the records?

I will report the truth. If these officers did nothing wrong the public (or at least those who read IWTS) will know they are wrongly accused.

The City of Plano implies that I may be an agent for Mr. Boswell's attorney, Don Tittle. I have never met with Mr. Boswell or Mr. Tittle. I am not using the open records process to subvert discovery. I am acting merely as an interested criminal justice commentator.

I respect the City of Plano's plea to attorney-client privilege. However, I find it sadly ironic that DWI enforcement officers are invoking their right to counsel. DWI enforcement has gutted Constitutional protections, including the right to counsel for the rest of us.

We need to strengthen open records laws and require disclosure in cases involving possible illegal acts by government. By destroying our Constitutional protections we are all in danger of government malfeasance. Open records are the public's last hope to keep the government... honest.

Labels: DWI, open records

DWI is a threat to freedom because it is a vauge opinion crime. It is hard to frame someone for murder, it is easy for cops to file false DWI charges, or simply unilaterally decide that a suspect is intoxicated. Combine the vague law with the "you must arrest more" propaganda we feed young cops and you have a recipe for injustice.

As a prosecutor and defense lawyer I have read the "DWI Investigation and Prosecution" training manual. Until today, I never read the intro. I was surprised to learn that the author of the DWI manual agrees with my conclusion that DWI is an opinion crime.

The goal of this book is to serve as an aid to those prosecutors who face [DWI] in trial daily, to help them overcome the difficulties inherent in attempting to prove an offense that, at its core, is based upon an "opinion".

Actually, the goal of the book is help get convictions, not to see that justice is done. Notwithstanding the above statement an opinion crime is great for the State. There is no physical evidence to contradict and few, if any, unbiased witnesses to worry about. To make things easier we have eliminated the pesky 4th, 5th, and 6th amendments in DWI cases. More from the intro...

Most DWI cases do not involve "falling down drunks" who stumble from their cars and give breath samples that register at over twice the legal limit. Instead, most cases- if they include bad driving form the defendant at all- involve.... police stops in which a defendant performs, at most, three fields tests whose methods are hard to follow and whose scoring is an easy target for defense cross-examination. DWI prosecutors will most likely be trying cases where [the suspect on the videotape] does not sway, slur his speech, and wants to talk to an attorney before he decides to give a breath sample...

This is an important message to young prosecutors. Even if there is no evidence of intoxication that affects driving, or speech, or balance, you can use this training manual to get convictions.

The reason that the "methods" of "field tests" are "hard to follow" and are an "easy target for defense" lawyers is because SFST science is garbage.

Everyone agrees that "falling down drunks" who "blow over twice the legal limit" should not be driving. Unfortunately, we are targeting social drinkers who pose a threat to no one. This book helps prosecutors feel good about convicting citizens of an opinion crime.p>

After uncovering Austin PD warrantless surveillance deal with Austin Energy, I filed an Open Records request with Dallas PD.

Sgt. Randy Hooper of the Open Records unit reports that no such agreements exists for either Dallas PD or the Dallas County Sheriff. Your electric bills are safe, for now.

I don't know if this is a victory for privacy or freedom, but at least it is not a loss.

Labels: austin energy austin police, Dallas Police, open records

ABC news has a compelling and tragic story of Iraq War veterans struggling with drug addiction. The stress of combat, failure of prescription meds, and easy access to controlled substances (despite 70 years of prohibition) has turned some veterans into addicts.

I hope we treat the soldiers better than the average drug defendant. I challenge any drug warrior to argue for the arrest of these brave soldiers.

Not every American who is an addict is overcoming the stress of war. This story highlights that addiction is a disease with different causes. These soldiers deserve help and treatment, not jail.
Someday all addicts will be treated the same way.

Here's a quote from an injured hero-

Combat engineer William Swenson was injured on what
was to be his final mission in Iraq when his vehicle drove over a 200-pound
improvised explosive device. The blast injured Swenson's spine, and he developed
syringomyelia -- a condition in which cysts form on the spinal cord.

Swenson said a laundry list of prescribed painkillers was ineffective
so he turned to marijuana, the only substance that he said would numb his
physical and emotional pain. Swenson failed a drug test after testing positive
for marijuana as well as cocaine.

Godspeed to all soldiers fighting overseas, or battling addiction at home.

Labels: War On Drugs

Some headlines... Cannabis May Prevent Breat Cancer From Spreading Sativex, A Cannabis Spray effectively treats pain The DEA admits that marijuana is medicine, only if you get it in pill form

I wonder how long the feds can argue that marijuana is not medicine when we will soon have two prescription drugs based on cannabis.

MEDICAL MARIJUANA, The Trojan Joint?
Medical Marijuana is a topic I have mixed emotions about. On one hand, I believe any movement that results in arresting less people for pot is good. One the other hand, I believe that Americans, as free people, should have the right to smoke what they want, regardless of medicinal value. Pot should be available for any use, recreational or medicinal.

Johnny Walker Blue is not medicine, it cures nothing. I still consume it, even though a side effect of drinking aged Scotch is intoxication. We ended Alcohol Prohibition without requiring that "medical alcohol" be legalized first.

Prohibitionists often argue that MM is simply a "trojan horse" to legalize cannabis funded by the evil George Soros. I have to plead guilty to that charge. I hope that MM will take away the stigma and fear around marijuana and speed up the inevitable legalization of cannabis. I have never met George Soros, but he should feel free to sponsor this blog.

The debate on cannabis is shifting. Medical pot is happening, Barack Obama has come out for legal medical use. Here is a great page of videos on all the canidates MM stances.

The debate over MM will end with legal prescription drugs like Sativex and Marinol available for certain "good" uses like pain management and fighting cancer, while recreational use is still banned.

Whereas, getting high is not recognized as a medical treatment, anxiety relief is. What separates taking Xanax to treat "anxiety" from smoking pot for a simliar purpose? Is it because the government (FDA, DEA) has not blessed marijuana for "anxiety" treatment. Is that really why we arrest 750,000 cannabis consumers a year?

I believe the arguments surrounding marijuana are moving towards an inevitable debate on the sovreignty of your mental state.

Who Owns Your Mental State?
Here is a recent video of John McCain trying to justify Prohibiton. John implies that drugs, unlike alcohol, can not be used responsibly and therefore must be banned. He also states that while you can drink without getting drunk, drugs have this awful side effect- intoxication. Here is a great video of Bill O'Reilly throwing a hissy fit over the idea that you have any right to get "intoxicated."

The argument of Mr. McCain, Mr. O'Reilly and other Prohibition apologists is that the federal government has a higher claim to your sobriety than you do. You somehow need government permission to pursue "intoxication" on any level, and then only through approved substances.

The right to control your mind should be one of the basic tenets of freedom. Unfortunately we have accepted the paradigm that the FDA, DEA, and Pharma companies can and should have a monopoly on what you can do to your own mind.

I'm listening to an audiobook on Saint Thomas Aquinas, narrated by Chartlon Heston. I have never read Aquinas' greatest work, Summa Theologica. However, I did read the wikipedia entry.

Here is a summary of Aquinas' view of the law.

According to Question 90, Article Four of the Second Part of the Summa, law "is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated."

All law comes from the eternal law of Divine Reason that governs the universe, which is understood and participated in by rational beings (men and angels) as the natural law. The natural law, when codified and promulgated, is the human law.

In addition to the human law, dictated by reason, man also has the Divine law, which, according to Question 91, is dictated through revelation, that man may be "directed how to perform his proper acts in view of his last end," "that man may know without any doubt what he ought to do and what he ought to avoid," because "human law could not sufficiently curb and direct interior acts," and since "human law cannot punish or forbid all evil deeds: since while aiming at doing away with all evils, itwould do away with many good things, and would hinder the advance of the common good, which is necessary for human intercourse."

It should be noted that human law is not all-powerful; it cannot govern a man's conscience, nor prohibit all vices, nor can it force all men to act according to its letter, rather than its spirit.

Furthermore, it is possible that an edict can be issued without any basis in law as defined in Question 90; in this case, men are under no compulsion to act, save as it helps the common good. This separation between law and acts of force also allows men to depose tyrants, or those who flout the natural law; while removing an agent of the law is contrary to the common good and the eternal law of God which orders the powers that be, removing a tyrant is lawful as he has ceded his claim to being a lawful authority by acting contrary to law.

The idea that law today comes from Divine Reason, or Natural Law would be naive at best. Our laws are merely favors that the political class bestows on the those (lobbyists etc) that keep them in power. Quid pro quo has replaced natural law.

Thomas was right that law can not prohibit all vices. The idea that we can legislate morality is as misguided now as it was in 1274.

Labels: Lawyers

Obama gave a fairly candid account of his past "experimentation" with illegal drugs.

ABC News' Sunlen Miller Reports: Democratic candidate Sen. Barack Obama, D-Ill., spoke candidly Tuesday about experimenting with drugs while he was in high school at surprise stop at Manchester Central High School in New Hampshire. "I made some bad decisions ... You know, got into drinking and experimenting with drugs, there was a whole stretch of time where I didn't apply myself," Obama confessed to the study hall class.

This story is buried on the ABC news site which is pretty amazing. Barack is admitting to the commission of multiple felonious acts. The lack of media attention shows how the public knows that drug crimes and or drug use does not make one unfit for public office. So why is possession still a felony?

It is time we told the truth about drug use. Many Americans use drugs at some point in their lives and..... nothing happens. They move on and lead productive ordinary lives. Why do we continue a policy that would have made Barack Obama a felon at an early age?

The only thing that seperates Barack and George W. Bush from your typical drug felon is that they did not get caught. It is time we saw Prohibition for what it is, as "unlucky lottery" too often "won" by the poor and politically powerless.

Labels: War On Drugs

Closing arguments are an important part of any jury trial. After both sides present their witnesses and evidence we have closing arguments. The State gets two closing arguments- one before and one after the Defense.

From the TDCAA Publication "DWI Investigation and Prosecution" comes these exiting tips on the State's DWI close. In sum, we teach ADA's to argue that the defendant was on his way to kill somebody, even if there is no evidence to support that argument.

1. Blood on the Highway- The TDCAA manual tells prosecutors to "spend some time reminding them (the jurors) of the dangers of this offense. The case you are prosecuting may not have involved a crash but the thanks for that goes to the police officer who the skill and training to recognize the danger this defendants posed."

Basically, the State wants jurors to find the defendant guilty out of fear. Even if a defendant posed a threat to no one, act like he killed somebody and thank the police for stopping him.

2. Blood on the Highway Part II- "The defense is very likely to make light of the fact that his client was arrested for stepping off a line a couple of times... Ask yourself what difference it would have made if he missed the brake by an inch."

Even though field sobriety tests have never been tested to relate to driving impairment, argue it anyway. Again, another fear based argument. Ignore the facts, play to emotion.

3. Breath Test Refusal- "This defendant made a contract with the State of Texas. He promised that in exchange for the privilege of driving on our streets he would give a sample of his breath.... Now you know what his word is worth... that he is able to continue to put his pleasure above the safety and security of the rest of us."

Implied consent is not a contract. Contracts require two parties bargaining fairly. Implied consent was created and enforced by fiat. Did you give up your 4th and 5th amendment rights to drive? Should you have to?

This is a plea to collectivism. The defendant is to be shown as selfish for not worshipping the idol of Public Safety. Life, liberty, and the pursuit of Public Safety?

DWI has officialy achieved witch hunt status. Just like sex offenders, those convicted of DWI in Phoenix will have their mug shots and conviction information posted online. I guess the financial ruin is not enough we have to publicly humliate those convicted of an opinion crime.

Where are the pictures of those wrongfully arrested and acquitted? Why not post those photos?

Why not post the mugshot of officers who arrest the innocent? That would be a public service.

I wonder if this DWI offender website will start with George Bush's and Dick Cheney's photos? They were both convicted of DWI.

DWI laws are dangerous because we give officers to much discretion too arrest. Law enforcement discretion combined with an erosion of constitutional protections leads to injustice every time.

Freedom, liberty, and the now defunct Bill of Rights used to protect us from corrupt law enforcement. Today, criminal defense lawyers are freedom's last hope.

This leads me to the story of Tray Boswell. Trey was arrested by Plano PD for DWI. The Plano Star Courier reports that during Boswell’s DWI trial, his criminal attorney Phillip Linder, requested the cell phone records from Sarah Boswell, Trey's wife. Trey and Sarah were going through a divorce. Child custody was an issue.

Phone records indicated that numerous phone calls were made between Sarah Boswell and the arresting officers Ron Kress, Michael Nunns, Scott Copeland and Jon Britton. The calls were initiated by both parties. Kress, Copeland and Britton claimed they had never met Sarah Boswell .

Court records state Copeland detained Boswell without probable cause and issued two traffic citations. Phone records state on that day, at least four phone calls were made from Sarah Boswell to Copeland, despite their claim of never meeting before.

Tray filed a federal lawsuit after the DWI was dismissed. Don't believe criminal defense lawyers are freedom's last hope? Surely the government is policing the police and looking out for your rights? Here is a great quote from the Plano City Attorney, Diane Wetherbee-

Plano City Attorney Dianne Wetherbee said the officers conducted themselves in an appropriate manner involving the incident.“We will vigorously defend them,” Wetherbee said.

While Diane is vigoroulsy defending the officers, we should all be glad Phillip Linder was doing the same for Mr. Boswell.

Labels: DWI, Police

Kaufman County has the nicest county jail I've ever been in. It is new, clean, devoid of foul odors and has a great staff. If you have to do county jail time, do it in Kaufman.

Here is basic information on the Kaufman County Jail.

Where Is It?
1900 E. US Hwy. 175, Kaufman, TX 75142

View Larger Map

What are the Visitation Hours?
Male Inmates
Wednesday 7:00pm - 10:00pm
Sundays 1:00pm - 4:00pm

Female Inmates
Tuesday 7:00-10:00pm
Saturday 1:00pm - 4:00pm

Attorney visitation is 24/7. Just bring your bar card.

Labels: Kaufman County

INQUIRY FROM PROBATIONER I received an inquiry from an Ellis County probationer recently. The probationer had been sent notice to appear at an "Adiministrative Violation Hearing." Allegedly this probationer had done or not done various thing in violation of the rules of probation.

Probationer told me that he was not allowed to have an attorney at this hearing. Probationer said if an attorney did appear then Probationer would be arrested. That didn't sound right to me.

I told probationer that he did have the right to counsel. I also filed an Open Records request to confirm or deny this allegation.

THE RIGHT TO COUNSEL?
I am sad to report that this is true. The Ellis County Community Supervision department sent me their "Notice to Attend Administrative Violation Hearing." This notice reads

"You may have attorney present, however, they will not be allowed to participate in these proceedings. If you would like a hearing before the Court so your attorney can speak for you, a motion to revoke your community supervision, motion to proceed to adjudication of guilt, and violation warrant will be obtained for you. Once in custody you will be able to participate in a hearing before the Court. Come to this administrative hearing prepared to answer truthfully about your violations...."

Get that. You can have a lawyer, but he can't participate. Also, come ready to confess.If you want your lawyer to participate then we will revoke your probation and arrest you. You can then wait in jail for your hearing. Probation violaters routinely have very high bail, if any is set. WHAT ARE PROBATIONER'S RIGHTS? A probationer enjoys the right to counsel at a Probation Revocation hearing. A person who has been convicted of a crime, is in prison or on probation still has a right against self-incrimination concerning statements that would incriminate him for some other offense.

Often times, probationers are charged with commiting a new criminal offense. If the right against self incrimination and right to counsel have any meaning it should be to protect those accused of new offenses, even if they are on probation or at an "Adiminstrative Hearing."

It appears that these "Administrative Violation Hearings" are used as intermediate step before a revocation hearing. That is not an uncommon practice. Many counties have dockets to address probationer's non compliance. However, Administrative Hearings should not be an end-run around the right to counsel.

TOO MANY PROBATIONERS
When I was a prosecutor I dealt with many pain in the a** non compliant probationers. Probation officers have a tough stressful job. It is not easy to rehabilitate drug addicts and career criminals. The answer is not to deny constitutaionl protections.

We have too many people on probation for consensual crime. If we only put real criminals on probation, we would have the resources to monitor, rehabilitate, and/or revoke them all.

Labels: Probation

Whenever MADD wants to justify another Neo Prohibition Police State program they always throw out a statement about "17,000 alcohol related fatalities last year."

The implication being that unless you support MADD's neo prohibition-ism and a continued gutting of the Bill of Rights, you are supporting drunk drivers who kill innocent civilians.

The other implication is that 17,000 Americans are killed each year by drunk drivers.

Alcohol Related?
The "alcohol related fatality" number comes from NHTSA. Their most recent report on Traffic Safety Facts and Alcohol is from 2005. The reports begins with the disclaimers that "the term alcohol related does not indicate that a crash or fatality was caused by the presence of alcohol."

Ever heard MADD say that? Alcohol related does not mean caused by alcohol.

"Alcohol related" means any person involved in an accident had a .01BAC or higher. This includes pedestrians. So, if a sober driver's runs over a passed out drunk person, that is an "alcohol related fatality." Tell me how a DWI checkpoint will stop these accidents?

17,000 ?
Out of the "17,000 alcohol related fatalities" in 2005-

8,515 of those killed were intoxicated drivers (over .08 bac). The person most often killed in an "alcohol related fatality" is the driver him or herself.

1,756 are drunk pedestrians and drunk bicycle drivers with a .08 BAC or higher. These deaths have nothing to do with drunk driving. However, MADD throws them in their total for good measure.

968 are drivers who were not drinking. These are sober drivers who are actually killed by a drunk driver. Every death is tragic. However, there is a big difference between 17,000 and 968.

463 were other non drinking non occupants, i.e. sober pedestrians. Adding this to the sober driver gives us 1431.

Finally we have 2,837 passengers killed. NHTSA does not break down the passengers into those who were driving with the intoxicated driver or not. Let's assume that every sober driver had a passenger. (968 x 2) + 463= 2399.

2,399 is the approximate number of real DWI fatalities. This number, however tragic, is in line with other causes of accidental death.

You are probably noticing that these numbers do not add up to 17,000. That's right. NHTSA just seems to add 10% to the total for good measure.

Mothers Against Falling
In 2005 3,600 people drowned, 4,600 choked, 17,700 were killed by falls, and 20,900 died by poisoning. Falls kill 8 times as many people as drunk drivers. Yet, were are not constantly gutting the Bill of Rights to prevent falling.

Another way to put this number in perspective is to consider the number of drunk driving trips in a year. MADD states that 2002 saw 160 Million drunk driving trips.

Dividing that total by our real DWI fatality number gives us- 1 in 66,694. The odds of any drunk driving trip resulting in the death of a sober person. To put that in perspective, the odds of drawing a Royal Flush in 5 card poker is one is 71,000.

MADD likes to call DWI the most frequently committed violent crime. Another hyperbolic fiction. With 20,000 annual homicide victims DWI is not the top violent criminal threat to our safety.

Giving Up Freedom For Safety
It is time to end the fear based rhetoric. Most people who drink and drive hurt no one and go on to live productive lives. We have turned Drunk Driving Prevention into a crusade against Drinking and Freedom. We are arresting the wrong people, encouraging policies that make us less safe, and killing freedom in the process.

Labels: DWI, MADD

DMN has a story on how Mexican drug cartles are using teenage hitmen to further their drug trade interests in the United States. Drug war violence, so long associated with Mexico, is coming to the USA, brought to you by the DEA. Grits For Breakfast does an excellent job breaking the story down (do you ever sleep Scott?).

The only way to stop these teenage hitmen is to put their bosses out of business. The DEA has had 35 years to put Mexican drug cartels out of business. They have wasted billions, incarerated thousands, and failed miserably to stop organized crime from selling drugs. When will we let the free market put these gangs out of business?

Labels: DEA, War On Drugs

Last spring, the Marine base is San Diego rightfully began allowing soldiers 18 and over to drink on base. MADD chimes in with this lovely quote-

"When someone who is under the age of 21 gets behind the wheel, they just don't have the maturity and the ability to combine drinking and driving," says Pat Hodgkin of MADD.

Notice how MADD can not seperate social drinking from drunk driving. Hence MADD's decent into Neo Prohibiton. This explains MADD's stand on social host liaiblity, keg registration, and increased penalties for underage drinking.

If you are mature enough to make the decision to fight and possibly die for our country, you are mature enough to drink.

H/T to the Agitator.

Labels: MADD

Pushingback.com, the government's official Prohibition propoganda site, is bragging about a recent rise in the price of meth. Allegedly, the street price of meth is up 73% since January.

It is unfortunate that all the gains in the price of meth are going to Mexican drug cartels. Prohibition creates a great reliable income and retirement for drug lords.

Our government is doing a great job ensuring windfall profits for organized criminals. We have given them a monopoly on the American meth market and outsourced production through a misguided ban on over the counter sudafed.

An increase in the price of meth reflects either a growing demand, smaller supply, or both.
At $244 per gram, drug cartels should reap record profits. Profits that will be used to corrupt our criminal justice system and fuel violence on the border.

What the pb.com crowd does not undestand is that an increase in price will produce more supply. It is not a victory in the drug war anymore than a rise in the price of oil is a victory against OPEC. At $110,000 a pound, meth will continue to flow unabated into American cities.

Labels: Pushing Back, War On Drugs