Dallas Criminal Defense Lawyer Blog

Dallas Police teamed up with federal ICE agents to raid Latino nightclubs over the weekend. 50 illegal immigrants were arrested. It is unclear if any had a record. 4 guns were recovered.

What were these illegal immigrants doing that posed such a threat to Dallasites? Working... as security guards... at nightclubs. Hit the xeno panic alarm!! Mexicans are coming to take our bouncer jobs!! Mr. Watkins proudly sums up the operation with this quote-

"Hopefully, this operation will help us send a message that we will not tolerate the falsification of documents for undocumented aliens under the guise of providing security," Dallas County District Attorney Craig Watkins said.

Of all the messages government tries to send that has to be one of the most confusing. The real message seems to be even "progressive" politicians will seek PR stunt victories over the politically powerless.

Craig, here is a message from Wikipedia. Dallas ranks number 1 for violent crime among large US cities. I doubt that illegal immigrant bouncer raids are going to reverse that trend.

A lot of good things have come out of the Craig Watkins administration. From innocence projects to smart on crime tactics his tenure has a been a welcome change. Is it troubling to see Mr. Watkins on board with the current xeno hysteria.

On a side note- I believe that free trade is a plus for society. Goods and labor should not be artificially impeded by government. Immigration is only a problem because our federal government created an artificial barrier. The fear of illegal immigration is great for ratings and votes. However, we betray our own country's heritage when we deny opportunity and freedom to immigrants.

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Posted In: Dallas Criminal Justice , Police

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Drug dog expert Steven Nicely helped to defeat a possession case in Nebraska. Based on Nicely's testimony the court found a drug dog to not be reliable. Steven was kind enough to grant me an interview.

1. Tell us about the case.
Case involved a dog team from the Douglas County Sheriff’s Office Ne, in which approximately 10 pounds of cocaine was seized. The vehicle was stopped because the officer/dog handler believed some defect with its temporary plate. Handler spent over 30 minutes interviewing the driver and passenger before deploying the dog. This was not necessary the entire incident could have been complete in less than 10 minutes after contact with the driver.

2. What did you notice about the dog/handler behavior?
When the dog completed one pass around the vehicle the handler by excessive tapping directed the dog’s attention to the right rear area of the van the dog sniffed intently and tried to walk away. The handler immediately pulled the dog back and forced it to again sniff the area; the dog sniffed again and tried to leave. The dog is pulled back a third time sniffed and tried to leave the handler put his knee against the vehicle preventing the dog from leaving, pulled up on the leash and caused the dog to sit. The handler said the dog had responded revealing the presence of drugs.

3. Were these training or performance problems?
Both, training affect performance directly. The handler performed the way he was trained. Until recently, trainers for departments were never seriously challenged.

4. Can officers make drug dogs falsely indicate the presence of narcotics?
Yes, it can be done intentionally and unintentionally. Look up Clever Hans.

5. How can you tell the difference between a valid indication, and an officer induced indication of narcotics?
In this case it was very obvious, but in most cases it is very difficult. One must be aware of elements that occur before the search took place. A key element is comparing times when it can be confirmed the handler hand information prior to the search that increased suspicion and compare that with search/response/actual find ratio. Do not include claims of residual, the officer smelled drugs, or a roadside confession they cannot be confirmed. Other things to consider is the entire picture of the team’s performance break it down into times the dog was required to provided PC for a search and compare search/response/actual find ratios. The unconscious cues are the most difficult convince the judge they occurred. A ground work about “Clever Hans” should be laid to educate the judge on subconscious we humans can barely see if see at all. Dogs are predominately body language communicators, and lean to read the handler’s body language which can also include leash handling, breathing, and eye contact just to name a few.

6. Finally, what do criminal defense lawyers need to know when evaluating a drug dog performance?
Is the dog trained and tested in such a fashion that one would reasonably believe the dog will only reveal the presence or absences of drugs, a contraband item. (see US V PLACE)

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A wonderful discovery by DrugWarRant. Just watch the video. I can not add anything to the thoughtful discussion.

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Posted In: War on Drugs

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Today is my 30th birthday. While I'm celebrating take a look at the rough draft of new website. Any thoughts?

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Sentry, is an online snitch program run by the Department of Public Safety. Sentry allows the public to make anonymous reports of criminal/terrorist activity. From the DPS website-

Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference! Take an active role in Texas Homeland Security! Join in the war on terrorism by submitting information about unusual, suspicious and/or criminal activities. You CAN make a difference!

Our government, state and federal, knows that the public will accept almost any program to "fight terrrorism." Ergo, Sentry is not a "snitch on your neighbor for drugs" program. Sentry is for "homeland security."

I was hoping to shed some light on this program. I wanted to see what "terrorist" activity was being reported. Just like DWI roadblocks are really used to find drugs, I expected to find that Sentry was really being used to catch illegal aliens and drug users.

Sentry received over 2,000 reports during 2007. I filed an open records and asked for a copy. The typical bureaucratic reflexes (stall, delay, never disclose) set in and DPS filed for an Attorney General Opinion.

AG Opinion- Keep The Snitching Secret
The AG ruled and- I lost. These records are going to be kept secret unless I file a lawsuit. How was open government defeated?

First of all, DPS filed their response after the 10 day deadline. It should not have been considered. Procedure aside, here is the AG's logic.

1. Texas Open Records Law allows information to be kept from disclosure if the information is confidential by law.
2. No Texas law makes this information confidential.
3. However, a federal law on intelligence databases prevents this information from becoming public.

How does a federal law apply to Texas Open Records? Bribery. The Omnibus Crime Control Act of 1968 is merely a grant program. If a state wants federal cash, they have to play by the rules. Texas, like all states, has chosen to take the money and adopt federal standards for Texas law enforcement.

A side note on limited government/federalism. An expansive federal government that seeks to solve all problems (education, health care, retirement, crime) is anathematic to state's rights and liberty.

Here is how the federal grant hustle works. The feds annually take billions from the citizens of each state. If a state wants to recover the money they have to sign away their sovereignty. If you want education dollars you have to follow No Child Left Behind. If you want highway money then no drinking under 21.

If a state does not take part in this extortion then their citizen's money will go to another state. It's a crooked system and a reason why our federal government was supposed to be limited. Decisions about Texas Open Records should be made by Texans. A Senator from Oregon or a Rep from Kansas has no business deciding Texas law.

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A recent story about prescription drugs found in public water sparked my curiousity. Dallas water was not mentioned in any of the stories. I dutifully sent an open records request to the City of Dallas. I asked for any information on drugs, legal or illegal, in the Dallas Water supply.

The response- We don't know. Dallas Water Utlities has never checked for these "unregulated compounds." As much as I support legalizing drugs, I do not want birth control, lithium or heroin in my drinking water. On the plus side, next time a client on probation fails a drug test I can blame DWU.

For now, I'm sticking with Topo Chico.

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The Dallas Police Ticket Scandal finally reached a conclusion with the firing of three officers and the suspension of one. The officers wrote false information on tickets. These tickets turned into warrants which led to the arrest of innocent defendants.

What was the police officer's defense? Those falsely arrested were poor.

"None of these charges merit termination at all,'' {Attorney] David Schiller said. "These are excellent officers who were out there every day working with the lowest common denominator ... in an area that needed enforcement."

My question- Why are no criminal charges being pursued? If we know the police filed false government documents they should be prosecuted. Craig Watkins could do a lot worse than spend time prosecuting corrupt police.

This is why we need the right to privacy, the right to not be stopped without cause, or the right to not be arrested on Class C misdemeanors- because without freedom we have no protection against government criminals.

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A wonderful victory for compassion and common sense in Texas. From the Marijuana Policy Project

A Texas patient who uses medical marijuana to treat the symptoms of HIV won acquittal on marijuana possession charges March 25 based on a “necessity defense.” Though such a defense - which requires the defendant to establish that an otherwise illegal act was necessary to avoid imminent harm more serious than the harm prevented by the law he or she broke - has rarely been successful in Texas, the jury took just 11 minutes to acquit Tim Stevens, 53. The trial was hotly contested. .

That is a good summary of the necessity defense. Exactly what harm does Marijuana Prohibition prevent anyway? I would enjoy making this argument to a jury. How a prosecutor could try and justify this cruelty to a jury is beyond me. Of course, sometimes the duty of a prosecutor is to convict, not to see that justice is done.

Stevens had never been in trouble until Amarillo police arrested him for possessing less than 4 grams of marijuana. As a result of his HIV infection, Stevens suffers from nausea and cyclical vomiting syndrome, a condition so severe that he has required hospitalization and blood transfusions in the past.

I challenge any Prohibition Apologist to justify this arrest and trial. What kind of policy justifies turning sick patients with no criminal history into defendants? Do you feel safer when we arrest people like Tim?

The common sense and decency exhibited by this Amarillo jury is typical of what we see from voters around the country,” said Ray Warren, director of state policies for the Marijuana Policy Project in Washington, D.C., and a former North Carolina Superior Court judge. “The American public doesn’t want to see seriously ill patients arrested and jailed for simply trying to stay alive with the help of medical marijuana. It’s time for legislators in Texas and around the country to follow the public’s lead and take action to protect patients, so that no one battling a life-threatening illness has to live in fear of arrest.”

Great Work by Criminal Defense Lawyer Jeff Blackburn!

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My wife is sick, so no new material until tomorrow. Until then go to the FWST and comment on this story. It is a typical federal drug bust. ATF and the Arlington Police waste time busting drug dealers who are going to be instantly replace. One of the defendants gets a 17 year sentence. Great use of tax dollars. I guess the DEA couldn't find an medical marijuana patients or pain doctors to harass.

Make sure and comment below the story. There are some typical "tough on crime" knee jerk comments. Make your voice heard.

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From the Economist- An amazing story from Texas on the Prison Entrepreneurship Program. PEP teachers prisoners how to be successful business leaders and entrepreneurs. The War on Drugs is a tragedy for many reasons. One is the incarceration of human potential for consensual crime.

Why would drug dealing felon convicts make good businessmen? Let's ask today's hero Catherine Rohr, a venture capitalist who founded PEP after visiting several Texas prisons. From the Economist

Ms. Rohr's premise is that criminals are intelligent people with good heads for business and healthy appetites for risk, and that these traits can be put to productive use. She is particularly interested in people who have already demonstrated these skills—for example by running a successful drug business or achieving a high rank in a gang

The rigorous program has a 50% dropout rate. The students in PEP meet MBA students and business leaders to develop business plans. 40 graduates already have businesses up and running. PEP also slashes recidivism (5% among graduates) and produces qualified applicants for employment.

Supplying illegal drugs is a business. The skills learned are fungible for legal commercial activity. Until we take drug dealing away from organized crime, we can at least take back some of the talent.

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The Post I Wanted To Write
After reading A Mockery of Justice by Stephen Gustistis I wanted to write an Easter inspired post about Jesus, Law, hypocrisy and a libertarian view of morality. However, I am in Ohio visiting family. So, here is the rough draft/outline-

Jesus had a list of grievances against the Pharisees, one of which was hypocrisy.

Hypocrisy-
Where to begin? John McCain supports the drug war and opposes medical marijuana, yet his wife is an ex addict. I would have also mentioned the Governor of New York, and the Senator from Louisiana.

Libertarian Morality-
I would have finished by pointing out that simply obeying all the laws of the State of Texas (or the federal government) does not make a person good or moral. Here is a great quote.

If a person is forced by violence or the threat thereof to perform a certain action, then it can no longer be a moral choice on his part. The morality of an action can stem only from its being freely adopted; an action can scarcely be called moral if someone is compelled to perform it at gunpoint.

Happy Easter!

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In Texas if you are not eligible to have an arrest expunged, you may be eligible for a Motion for Non Disclosure. I received many phone calls from people looking to clean up their record. However, expunctions are a very limited option. For most, a MFND is the only option available.

What is a Motion for Non Disclosure?
An MFND allows an individual to deny arrest or prosecution for which public information exists unless they are being prosecuted for a subsequent offense.

Who is eligible for a MFND?
A person who has pled guilty or no contest, received deferred adjudication, and has been successfully discharged from probation (the charges have been dismissed. However, even then some people are not eligible.

There is also a waiting period between 0-5 years depending on the offense (h/t Mark).

Who is not eligible?
Sex offenders, those who are convicted of another offense, kidnappers, murderers, family violence offenders, et al.

What is the process?
Call an attorney. Basically a petition is filed and a hearing is held to determine if a MFND is warranted.

What happens if the court grants it?
A whole slew of Texas agencies are forbidden from disclosing the information to the public. The records are eventually sealed by DPS.

Wait a minute, if my information is already on PublicData.com or another background check site, how does an MFND help?
Good question. After an MFND is granted these entities can be fined for releasing the information.

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As long as I have been practicing criminal law I have been watching DWI videos. As a prosecutor in East Texas DWI videos were on VHS tapes. This was very inconvenient for trial. I had to write down the time stamp for each scene I wanted, while noting all any objectionable material (defendant's criminal history blaring over the police radio) etc. I spent time at trial awkwardly fast forwarding, reversing, pausing etc. Very cumbersome, those old VHS tapes.

In Kaufman County DWI videos are on DVD. Not a great technological leap forward from VHS. A DVD has a better picture, and is more convenient to browse. However, a DVD offers no more information than a VHS tape.

AVD Viewer-
Today I received a DWI DVD from the Kaufman District Attorney. It was an incar video from the Terrell Police. It looked like all the other DWI DVDs I usually receive. However, when I loaded the disc into my work computer a new program opened up. I usually watch DVDs on Power DVD. This disc opened up in AVD Viewer, a program by L3 Communications.

AVD viewer is a real leap forward. For starters it has a panel of "triggers" that tell you when the police are hitting the brakes in the car, or when the emergency lights are on, inter alia. AVD also allow me to choose which microphone to listen in on. For example- I could listen to the in car mic, or the officer's personal microphone. It also allows the user to pick between different police car views.

The disc also includes a chain of custody page where I can see who logged the video into evidence. My only gripe is that the program seems a little buggy. It will freeze up on me more than I like. As a DWI defense lawyer I prefer even a buggy DVD that contains more information. Overeall AVD is not a Star Trek leap forward in technology, but a good start.

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Posted In: DWI , Kaufman County

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HBO looks to have another winner with John Adams. I think it is fitting that The Wire is being succeeded by the story of America's Revolution. Whereas The Wire highlights tyranny's creation- Prohibition, John Adams is about the revolution and ideas that gave us freedom.

It is unfortunate that we abandon freedom so easily. Whether is to fight drunk drivers, stop pot smokers, or take on the boogeyman of the day Americans have rarely shown so little affinity for our birthright- liberty.

From WikiQuote-

A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.

I fear the wisdom of this quote. We have turned the 4th, 5th, and 6th Amendment's into tortured absurdities. For what? For the government promise of safety from drugs/dwi.

Power always sincerely, conscientiously, de très bon foi, believes itself right. Power always thinks it has a great soul and vast views, beyond the comprehension of the weak.

This explains the moral certainty and smugness of law enforcement arresting drug users. Mr. Adams would hardly be surprised by this quote from Former DEA Chief/Petty Tyrant Asa Hutchinson.

I think conservatives need to think this through. I was honored to meet with some young professionals who were debating this issue, and I commend them for thoughtful analysis. Some conservatives because of our love of freedom drift over and think the government out to get out of drug regulation. So where should conservatives be on the drug issue? First of all, conservatives have a hallmark of basing decisions on responsibility. And secondly, based upon reason. If you look at responsibility and reason, you should come to the conclusion that conservatives should oppose drug legalization.

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MADD is on a never ending quest to destroy the Bill of Rights. To MADD any protection for suspects/defendants, any privacy rights, any amount of due process is simply an obstacle to their Utopian vision of no drunk driving deaths.

Texas is usually a easy target for MADD's "tough" DWI proposals. However, Texas is one of the few states that has resisted sobriety checkpoints. Texas MADD had this list of "Myths" and "Facts" about sobriety checkpoints on their website.

Myths About Sobriety Checkpoints

Myth: Sobriety checkpoints are not as effective as routine police patrols in detecting high-BAC drivers.

Fact: Sobriety checkpoints deter impaired driving by increasing the perception that impaired drivers will be detected and arrested.

Checkpoints may also have a greater chance of apprehending a high-BAC driver who regularly drinks and drives because many of these drivers believe they can drive carefully enough to avoid notice by regular patrol. A checkpoint can determine their alcohol use without observing their driving behavior.

Truth- There is no correlation between sobriety checkpoints and drunk driving fatalities.

Myth: Sobriety checkpoints are expensive, time-consuming, and a poor use of police officers’ time.

Fact: Preventing drunk driving has a legitimate place in the police budget. Checkpoints can be conducted with as few as 3-5 officers. Equipment, additional personnel, etc. can be obtained through cooperation with neighboring law enforcement agencies. Grants from NHTSA are available to departments who conduct sobriety checkpoints using their guidelines.

Truth- Sobriety checkpoints are expensive, time-consuming, and a poor use of police officers’ time.

Myth: The public is against sobriety checkpoints and views them as a form of police harassment.

Fact: Public polls show that 2 out of 3 Texans favor the use of checkpoints to combat drunk driving. A majority of Americans—79 percent—favor the use of sobriety checkpoints. Over 91% of drivers in Tennessee favor the use of sobriety checkpoints.

Truth- "Constitutional rights may not be infringed simply because the majority of the people choose that they be." Westbrook v. Mihaly 2 Cal. 3d 756.

Myth: Sobriety checkpoints constitute illegal search and seizure.

Fact: The U.S. Supreme Court ruled them constitutional. They are similar to metal detectors at airports, and they save lives.

Truth- The US Supreme Court did rule in favor of these roadblocks. The decision is sheer idiocy. Wikipedia sums it up well.

However, by a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. Although acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued that the state interest in reducing drunk driving outweighed this minor infringement.

Dissenting justices argued that the Constitution doesn’t provide exceptions. "That stopping every car might make it easier to prevent drunken driving...is an insufficient justification for abandoning the requirement of individualized suspicion", dissenting Justice Brennan insisted

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The Drug Free America Foundation is a non profit group that advocates for the War on Drugs. I actually support this group financially because they are a recipient of large annual grants from the federal government. It's not bad enough the feds arrest and incarcerate millions of Americans, they also waste tax dollars on redundant propaganda.

Survey Says- Drug Use Is Victimless
DFAF has an online survey on drug use. Here are the results

Question: Drug use is a victimless crime.

Agree. It only hurts the user.: 22.6% Disagree. Individual drug use affects society.: 6.2% Somewhat disagree. It may affect those closest to the user, but not society.: 8.1% Strongly agree. What a user chooses to do themselves is no one's business.: 43.1% Strongly disagree. A drug user endangers every person they come in contact with.: 20.0%

860 individuals have responded to poll.

It is wonderful to see that 2/3 of all readers agree that drug use is a victimless crime. Let's explore those who got the answer wrong.

6.2% chose Disagree- affects society. I guess this depends on your definition of society. However, by defining society so broadly there is really no activity that is victimless."

20% chose Strongly Disagree- A drug user endangers every person they come in contact with.

I guess 20% of the readers are 2nd graders who just finished a DARE class, or DFAF employees. A person smoking a joint is not a land mine. I would suggest those who chose this answer spend some time with a Medical Marijuana patient, or Willie Nelson. SWAT teamsnot drug users, endanger every person they come in contact with.

This poll is not scientific. But it shows that the anti-Prohibition message is getting out. Prohibition is a national disgrace. Take the time to vote and show the DFAF how you feel about their War on Drugs.

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Ratemycop.com is a new website where the public can post information on law enforcement. RMC is sending out open records requests to Texas law enforcement agencies. District Attorney offices are responsible for handling some Open Records requests.

How do you think prosecutors feel about Open Records/RateMyCop.com? Let's ask Jim Tirey of Plainview, Texas. From the TDCAA message board.

There are many PIA requestors who are merely out to harass a particular government organization. They make hundreds, if not thousands of requests on a continuing basis. The government entity has to comply; there is no exception for harassing requests.

The striking aspect about organizations such as ratemycop is that it appears to lack a reasonable purpose. If anything, it probably serves to harass the men and women who are out every day trying to make our society safe.

First of all, no entity is more harassing than law enforcement. Only the State jails people who are innocent, or for unpaid traffic tickets, or for engaging in consensual victimless behavior. It shows a disturbing lack of insight that the a prosecutor would consider making copies of public documents harassment. What would that make a suppression hearing- Murder?

Mr. Tirey also states this information serves no reasonable purpose. He must not read This Week's Corrupt Cop Stories. Maybe a service like RateMyCop could prevent disasters like Tulia in the future.

Finally, no TDCAA post would be complete without a John Bradley quote. How does JB feel about Open Records? He thinks they get in the way of his noble crime fighting mission. If any police department can not solve crime because of open records, they are too inept to be in law enforcement.

Prosecutors are in the unique position of being able to let lawmakers know the sometimes dangerous and often unintended consequences of the bills they pass. In the area of public information, some of those laws directly conflict with our duty to make sure investigations are conducted in a safe and professional manner. Interruption by disclosure of confidential information sometimes can and does prevent a worthy public goal of solving crime.

Prosecutors are not in a unique position. I see the dangers and unintended consequences of stupid laws every day. Mr. Bradley would probably be surprised to learn that his "unique" insight on open records is really one of my arguments against Prohibition.

You know Open Records are important if the Government hates it. The State exists not to make your life better, but to advance the interests of the State. Prosecutors see no benefit to Open Records because it does not benefit them directly.

It is the definition of hypocrisy that our Government demands more of our privacy and personal information yet feels harassed when citizens dare ask for copies of public documents.

If you want to know more about your Government file an Open Records request. Prosecutors have much more pull with the legislature than open records activists. If JB and his ilk get their way, open records may be a thing of the past.

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I have been following the embarrassing proliferation of forced blood draw warrants in Texas. One issue that has not been covered is what happens when a subject is faced with a warrant and still refuses the blood test? Prosecutor Jeff Swain (Parker County) wrote an article describing the horrific practice in his county.

Our DWI search warrant blood-draw program has been up and running for two years now. The judges are still willing participants, with the fax machines still in their homes. One of our greatest concerns—the defendant who fights to avoid the blood draw—has not materialized on a significant level. While a good number of arrestees say they will not let the blood draw occur, a show of force by a few officers standing nearby has stopped all but two from actually resisting the process. In those two exceptional situations, the officers teamed up, some holding the defendant to a chair and others holding his arm to the arm of the chair with towels. Blood was withdrawn from the arrestees’ arms at that point without further incident.

Why are these forced blood draws necessary in Parker County? Because the State lost a DWI case.

After (the defendant's) acquittal, we decided that we needed to do something to prevent another intoxicated driver from going free. Feedback from the jury was that they just weren’t completely sure that Watkins was guilty and that what they really wanted was a BAC score to be certain of his intoxication.

The jury acquitted because the jury decided it had a reasonable doubt about intoxication. There was a video in this case. The jury saw the defendant's actions. If a defendant does not drive, walk, or talk like an intoxicated person should he be acquitted, or held down by officers to have his blood drawn?