Dallas Criminal Defense Lawyer Blog

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.

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.

I live in Ennis and frequently take Interstate 45 North to Dallas. There is never less than 2 police cars hiding between State Highway 34 and Interstate 20 looking for speeders. Most often these cops lurk on bridges and on ramps hiding from unsuspecting motorists.

On I-45 The speed limit goes from 65 to 60 in various spots. However, if you travel less than 70 you will be frequently passed by traffic. It is obvious that the Speed Limit on I-45 has no basis in promoting safety or in driver reality. There is nothing dangerous about driving 75 on I-45. Not that I would ever intentionally break our State's divinely inspired traffic laws.

I blogged earlier that I wanted to use open records to highlight the I-45 speed trap and the shameless money grab by local municipalities. I often see Garrett, Palmer, and/or Ferris police on I-45.

However, I lacked the time and energy to handle more open records work. Luckily, the Ellis County Observer did all the open records work for me.

Here is the Ferris Speed Trap by the numbers.
Ferris Texas- Population 2,157
Ferris Municipal Court Revenues per month 2008- $60,333
Citations Per Month 2008- 408.

A town of 2,100 generates $60k a month by writing 400 tickets a month. In Texas ticket quotas are supposed to be illegal. However, any government agency (including police) that can generate revenue will be exploited. It's much easier for politicians to raise money through traffic tickets rather than by taxing residents. Instead of getting visitors, business, or residents to come to Ferris they have chosen to use the power of government to steal money from drivers.

No one saves a drug search like our Supreme Court. It seems that few Constitutional protections apply if the police find drugs. . The latest example is Virginia vs. Moore.

SCOTUS in their own words

Held: The police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest.

Here are the facts- Moore was pulled over and found to have a suspended license. Virginia law does not allow the police to make an arrest for this offense. Virginia police arrested Moore anyway. A search incident to the arrest produced 16 ounces of crack cocaine.

Moore filed a motion to suppress the search and the crack. Moore's Motion was denied and he was convicted. Moore appealed and claimed that the 4th Amendment protects the public from illegal police conduct. Put simply- Moore's argument was that when police break the law and search a citizen, the search is unreasonable.

Now we have what Drug Warriors have longed for, an end run around the pesky requirement of a warrant, probable cause, and/or actually viewing an arrestable offense to search for drugs.

The War on Drugs always leads to police corruption. Now it has led to a sanction for illegal police conduct. I never thought I would see the day that judges would ok illegal police activity. In hindsight, this decision is merely the cumulation of decades of bad decisions designed to save drug searches.

There are only two ways to advance Prohibition- More Cops/Jails or Less Freedom. We have more prisoners than any other country, and less 4th Amendment protections than ever. We are still losing the Drug War.

Is it too much to ask that police follow the law? Is 16 ounces of crack worth repealing the 4th Amendment?

Recently, the 6th Court of Appeals (Texarkana) released an opinion in.39 acres vs. the State of Texas . In Texas, asset forfeiture cases list the property as the defendant. For example, The State of Texas vs. Ford F-150, or The State of Texas vs. $24,762 are potential forfeiture case names.

.39 acres was actually about Henry Doke, the owner of the Dew Drop Inn in Marion County. The Dew Drop Inn was a commercial space rented out on a month to month basis.

A search warrant was issued for suspected drug activity at the DDI. The police show up and find cocaine and make a few arrests. The State moves to seize the DDI and the land (.39 acres).

Despite the search and arrests no evidence was found against Mr. Doke. Henry Doke was never convicted of any crime. Henry Doke was never charged with any crime. Still the State moved to steal his property, claiming that the Dew Drop Inn had become "contraband".

Prior to the raid Mr. Doke had been informed by a local NARC that there was drug activity at the DDI. Based on that, the trial court allowed the State to seize the DDI.

The Court of Appeals for the State finding that Mr. Doke "should have known" of the illegal drug activity. Mr. Doke raised a factual sufficiency review for appeal. Those are hard to win. However, the court of appeals in Texarkana is setting a precedent- private citizens have been drafted into the Drug War. Ignore NARCs at your own peril.

If you disagree with a NARC, if you don't believe a NARC, if you don't care to be an agent for law enforcement, or simply choose not to further the perpetual failure of Prohibition- the State can and will steal your property.

Own any property in Texas? Care to keep it? Congratulations, you are now a full time drug warrior.

DMN reports that Dallas County Criminal courts have a growing backlog of felony cases.. Even with the addition of two new felony courts in 2005 the number of pending cases is still growing each year. DMN estimates there are 24,126 pending felony cases in Dallas.

What could possibly cause such a huge growing backlog of felony cases? Hmmm.... DMN explores.

The reasons given for this vary, depending on whom you ask. The local criminal justice system has many parts, and defense lawyers and prosecutors can contribute to slow-moving cases. Some cases are more complex and difficult than others, and thus take longer to try. But judges play a big role, too – for example, in the speed with which they hear motions and make decisions.

All the statements in that paragraph are true. However, the real reason cases are backed up in Dallas is.... you guessed it- PROHIBITION!

From 1998 to 2001, Dallas County felony judges disposed of more cases than were filed. But that trend reversed in 2002, the same year former District Attorney Bill Hill's new policy began requiring testing of drug evidence before cases are filed.

Here is how the War on Drugs makes Dallas less safe.
1. First, Making Drugs Illegal Corrupts Law Enforcement. In 2001, Dallas Police were caught using fake drugs and snitches to convict the innocent. Ergo, now all drugs are tested in Dallas County. This testing takes substantial time and resources.
2. Second, Making Drugs Illegal Does Not Eliminate Demand. Despite years of "Just Say No" propaganda Dallasites still want to get high. Drug users are not very hard to arrest. Those arrests lead to hundreds of useless prosecutions annually.
3.Finally, Opportunity Costs Exist. Prosecutors working on possession cases can not work on murders, rapes, assault, theft, burglary of a residence etc.

The Result- Drug cases clog the criminal justice system while real crimes go without justice. Expanding capacity with more courts is not slowing the tide. The real tragedy is that not all felonies are created equal. Drug Possession/Distribution and Sexual Assault are both serious felony offenses in Texas. Both require substantial resources, tax dollars, and court time. Which do you want prosecuted in Dallas? Both? Then you better be prepared to wait for justice.

Here are some other posts on the Opportunity Costs of Prohibition-

Kaufman County Opportunity Costs-
Opportunity Costs and Crime Clearance

Opportunity Costs and Child Molesters

I haven't contributed to the blog discussion on the West Texas Polygamy raids because I know very little that is not on CNN. However, I have dealt with CPS in Kaufman County and in East Texas. It's that experience I'd like to share.
I am not sure if this experience is reflective of all CPS cases in Kaufman. However, I was taken aback by the process.

A little background. I had a contested hearing on a removal by Kaufman CPS. CPS came in, stole the child, and wanted my client to sign off on the removal without a contested hearing. Right.

For starters the CPS attorney referred to me as a National Socialist German Workers Party member in front of the judge, who didn't flinch. I've been in some pretty heated hearing but I've never had a lawyer, in front a judge, call me a Nazi.

My "Nazi" actions were to have a contested hearing challenging a CPS removal and then actually filing discovery (which was disallowed). I couldn't believe that CPS could take children from their parents and the parents could be denied the ability to learn anything about the removal through discovery. If Visa wanted to sue you for a past due balalnce, you could file discovery and learn about the case, if CPS wants to steal your children in Kaufman county, not so much.

The hearing featured a constant running dialogue/objection from the CPS attorney. I have never had opposing counsel simply talk the entire time during my questioning. It was surreal.

Kaufman CPS started with a conclusion (the parents are bad and must be rehabilitated) and then ignored all evidence to the contrary. If parents want their children back they must enter "the program" of CPS supervision and classes.

I will not be surprised if the polygamy raids fall apart for lack of evidence. I expect CPS and law enforcement to hold these children hostage until the parents "cooperate" to get their children back. There are serious problems with child abuse in Texas. However, our government needs to be held accountable for taking children away from parents.

Collin County has jumped on the Vampire Prosecutor bandwagon with "no refusal" DWI weekends. A recent DMN story featured a Collin County ADA talking about their new tough on DWI blood draw program.

I filed an open records request for communications, documents, memos etc regarding implementation of this program. After all, if the Collin County District Attorney is so proud of this program then why not share the details with the public?

As usual, the CCDA sought to keep the records secret via the Attorney General. Cheap "tough on crime" PR stunts are easy for bureaucrats. Actually revealing what they are doing to the public is always met with resistance.

Today I received the Attorney Generals ruling. Collin County's illegal unconstitutional forced blood draw program will remain secret. Th CCDA is allowed to withhold most of the documents I requested. I am still unclear as to what, in anything, they are required to send.

How did Sunshine lose? The Texas Government Code states that "internal records" for "internal use" are exempted if "prepared by an attorney representing the state in anticipation.... [of] criminal litigation."

Unbelievable. Prosecutors use judicial activism to create new law, violate your constitutional rights, violate clear provisions of Texas law, and then get to keep it secret from the public.

Bureaucracy always chooses the path of least disclosure.

Some earlier posts on Vampire Prosecutors and DWI No Refusal Policies

Why They Clearly Violate Texas State Law, (COCA Judicial Activism To The Rescue!)

Fort Worth Police

Putting the Force in Forced Blood Draws

Vampire Prosecutors Part II

Yesterday, I had two cases on the docket in the 422nd District Court in Kaufman. I quickly browsed through the courts docket and noticed that around 15 criminal cases were set to be heard that afternoon. A quick glance at the State's file bucket showed that roughly 8 of those cases were for drugs.

Plea Negotiation Conferences
In the 422nd a common court setting is a Plea Negotiation Conference, or PNC. I had two of those today. I spent time talking to a prosecutor on the various aspects of my cases. Both cases were reset.

After my cases were reset I looked around the courtroom and noted the 4 prisoners, 2 sheriff's deputies, 5 defense lawyers, and 2 prosecutors and of course, the judge.

Opportunity Costs
Opportunity costs are a term I've used before. For those new to the blog Opportunity Costs put the cost of any choice as the value of forgone choices.

Again, 50% of the cases that day were for drugs. Possession of various controlled substances, in various amounts, all requiring the full attention of the criminal justice system.

Kaufman has some great felony prosecutors. The prosecutor I spoke to had years of experience and education. If my dead body is found in Kaufman County I would have little doubt these prosecutors would do a great job convicting my killer.

Besides the two prosecutors there were a half dozen others with law degrees, various law enforcement professionals with years of training, an elected judge, citizens fighting for their freedom and the family members who care about them, and finally the poor taxpayer funding this production. 50% of that courtroom was there for drugs. To keep people from getting high. To uphold Prohibition.

The amount of human potential we incarcerate for Prohibition is monumental. Not to mention the resources spent to train prosecutors, judges, defense lawyers, police etc. All the time, energy, and money we spend on Prohibition is staggering. It keeps a lot of people busy (myself included). However, it also keeps a lot of people from doing other productive work.

Without the War on Drugs the market would support less prosecutors and defense lawyers. These talents could be used to start businesses, become teachers, or fight other legal injustice (Patriot Act perhaps). The law enforcement agents in the room (bailiffs) could be out looking for real criminals. The inmates could be working to support their family or drug habit. The families wouldn't have to drive to Kaufman to watch their loved ones sit in chains. Finally the judge could focus on murder cases or other civil cases. Lawsuits would be resolved quicker, real criminals would face justice sooner.

I have to admit that when this Drug War is over the criminal market may dry up. However, I will gladly sacrifice this career fighting dope cases and do something else. Have you been injured in a car wreck?

RateMyCop.com lets citizens rate and review police officers. Some Texas prosecutors don't like the idea. I think it's great. Police have a troubled history of policiing themselves. More information helps everyone. RMC could prevent future Tulias from happening.

Here is an interview with founder Gino Sesto.

1. Name/Background/Resume
Gino Sesto. 37yrs old, living in Culver City, CA. 15+ year Advertising background.

2. How did RMC get started?
Having a dinner with a good friend 7 or 8 months ago, and the topic turned to traffic tickets. We spoke about our experiences for at least a half hour. It dawned on me the next day that there is a website here. People all have experiences with officers, both good and bad. The best part is they remember them like it happened just yesterday. After doing some research and realizing I could get lists of names from the departments themselves we decided to make the site. We mailed over 1,000 requests to departments around the country and received over 500 back. I learned that over 40,000,000 traffic tickets are given out every year. On each traffic ticket there is a line for the officer to fill out. His/Her name and id number. Aha! That’s what we need. People keep those tickets for at least 6 months, so the data is there, and certainly the users are there. Everyone has an opinion on those tickets, and they usually tell all their immediate friends about the ticket.

3. Would RMC be possible without open records laws?
Absolutely, the open record laws only allowed us to seed the “kitty”. Without the 140k names that we have now, the press wouldn’t have bothered with us, but eventually the users would have grown the database to that point. Just 5 days ago we launched the ability for users to add to our database, and we have already had over 400 names submitted. Getting the names from the police departments only got the website to grow faster than it would have without the names

Continue reading "RateMyCop.com Interview- Gino Sesto" »

I have long argued that the Standard Field Sobriety Tests (SFST) used in DWI detection are a fraud. The science is garbage that has never been peer reviewed. However, tell a lie long enough and it becomes the truth. In Texas 3 SFSTs are used in almost every DWI case; the HGN, one leg stand and walk and turn. Officers are led to believe that these tests are highly accurate in detecting impairment and bac levels over .08. As with any good propaganda the weaknesses and flaws in the research are never mentioned.

A fortuitous Google search led me to Dr. Greg Kane. Dr. Kane has examined the field sobriety validation studies. He has examined the raw data that cops never see. His conclusion- the numbers don't add up.

Why would a sober person refuse field sobriety tests? Read on to find out.

1. Name, Background, Resume
Greg Kane. live in metro Denver. I have degrees in math and in physics from Rice, 1980. I went to med school at UT Houston; I practiced internal medicine from '91 till '98. Since '98 I've been a consultant to attorneys working on medical malpractice claims. See www.medmalEXPERTS.com

2. How did you get involved with SFST?
We medical doctors spend a lot of time interpreting imprecise physical tests. A spot on an x-ray may mean cancer, or it may mean nothing. Do you cut the lady open, or do you send her home? Medicine has developed a sophisticated mathematics for answering questions like that. In med school they teach you that math. As a math - physics guy, I though it was cool. My post-graduate research dealt with how that mathematics worked out for one specific type of x-ray. So I come to the question of SFST accuracy with an interest and some expertise in the mathematics of "accuracy."

As an expert broker I get calls from defense attorneys looking for a doctor to counter FST evidence. Too often these cases involve drivers who failed an FST, had a BAC of zero, and are now charged with driving while intoxicated by, say, a therapeutic level of some benign medicine prescribed by their own doctor. The government's reasoning: they failed an FST, they must have been impaired.

Because I happen to know how science says FST results are correctly interpreted, I know the government's theory is wrong. The most difficult thing in life is to know how to do a thing right and to watch somebody else do it wrong, without comment. Also, it's un-American to convict people with secret evidence, and with "scientific" tests that don't work.

3. What did you learn about SFST validation studies?.
First, all the usual stuff defense attorneys complain about. They were never peer reviewed. They're chock-a-block with procedural and logical flaws.

Second, I discovered things that don't get talked about. For example
l The "accuracy" statistic the NHTSA uses to validate the SFST is a technical mathematical statistic that does NOT reflect the likelihood that a DUI defendant who failed the test was impaired.
l The NHTSA's "accuracy" statistic is open to manipulation. Simply by manipulating the group of drivers you choose to “study,” you can set up your validation study beforehand so it is certain to “discover” whatever arrest accuracy you’ve been paid to validate. Not only is it possible to manipulate study groups this way, that's actually how it's done in real life. NHTSA contractors do manipulate their study groups in a way that uses this statistical trick. Every NHTSA FST validation study that "discovers" a high FST accuracy uses this trick. Every validation study that fails to use this statistical trick also fails to "discover" a high FST accuracy.
l SFST studies do not study SFSTs. They study officers instincts. The "accuracies" they report are not the accuracies of the standardized FST, they are the "accuracies" of officers' unstandardized gut instincts about whether each driver is impaired or not. Validation study officers are as accurate as they are only because they repeatedly ignore the SFST. If they did actually rely on the SFST, their arrest accuracies would be substantially worse. That's right, worse. SFSTs are less accurate than officers' gut instincts, and validation study reports prove it.
l All FST validation studies keep the accuracy of the SFST itself secret. When I looked at the raw data for the 1998 San Diego study, I was shocked. To a first approximation the SFST works like this: Everybody fails. Everybody fails, and officers release people their gut instinct tells them are not impaired.

At the 0.04% BAC level:
296 drivers took the SFST
292 failed—99%.
4 passed— 1 %

On innocent people the accuracy is 7%! If juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current 0.05% level, they will wrongly convict 93% of the innocent drivers who go to trial.

4. Tell us about your mathematical analysis. How is it done?
Basically it's as if the government were pushing Youth Cream. The claim is, rub YC on your face and you wake up looking, acting and feeling young. So the government pays for Youth Cream validation studies done at an elementary school, and guess what, 95% of the people who used the cream in the scientific study did look, act, and feel young. Then the government claims the contractors' research proves YC is highly accurate at making people young. But the secret isn't in the cream, it's in how contractors picked the group they "studied."

It's the same for SFSTs. Validation contractors "discover" high accuracies because they load their study groups with drunks.

The home page of my web site fieldsobrietytest.info links several of my published articles on how sensitivity-specificity-predictive-value science applies to SFSTs.

5. Officers are taught these tests are highly accurate. Is that true?
Yes and No.
Yes, there is a technical mathematical statistic called "accuracy," and Yes the "accuracy" of SFSTs is high in the manipulated study groups in the government studies.
No, SFSTs are not accurate in the everyday sense that the answers they give are usually correct. The never before published raw data I managed to uncover proves that within the margin of error a failed SFST carries no implication of impairment. None. You can't tell whether the person who failed the test is actually impaired, or whether they're just one of the 93% of innocent people who also fail the test.


6. How do sober drivers fare on SFSTs?
At the 0.04% BAC, on innocent people the accuracy is 7%! That's not a typo. Seven percent. If juries rely on the SFST to decide the guilt of drivers charged with DWAI at the current 0.05% level, they will wrongly convict 93% of the innocent drivers who go to trial.

At 0.08% BAC, on innocent people the SFST is only 29% accurate! That's worse than a coin toss. If juries rely on the standardized field sobriety test to decide the guilt of drivers charged with DUI at the 0.08% level, they will falsely convict 71% of the innocent drivers who go to trial.

Continue reading "Standard Field Sobriety Test Expert- Dr. Greg Kane" »

One reason I prefer freedom over government is accountability. If a business does not provide the goods and services the public wants customers take their money elsewhere and the business fails.

Government is the opposite. Failing programs see their budgets increased and almost never close. DARE is one such program. By all accounts DARE HAS BEEN A COMPLETE FAILURE. DARE has shown no efficacy in keeping kids from using drugs, alcohol, or cigarettes. Yet the government continues to waste over a billion dollars a year on DARE.

This week, President Bush issued a proclamation declaring DARE day. Do we really need a day to celebrate government propaganda? Really? Surprisingly,Pushingback.com is the only place I could find this moving declaration from our Commander in Chief.

I know that you don't want to read it. I'm pretty sure George didn't write it. In the interest of brevity I will post one paragraph from the DARE day speech. My links provide the truth to Bush's sad statist platitudes.

All Americans have a responsibility to encourage others to turn away from drug abuse and to make good choices in life. During National D.A.R.E Day, we renew our commitment to providing our youth the knowledge and encouragement they need to resist the pressures that can lead them to experiment with drugs and violent activities. By working together, we can help our children build lives of purpose and strengthen our communities, one heart and one soul at a time.

Happy DARE day!

Here is a column I wrote for the Ellis County Press. It should run soon.

Imagine you are a juror for a criminal case. The evidence is clear that the defendant broke the law. However, your conscience tells you the law is unjust and should not be enforced. What do you do?

John Jay, our nation's first Supreme Court Justice stated that "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the la w as well as the fact in controversy."
American jurors have a history of fighting injustice with JN. Jurors routinely refused to convict prosecutions under the Fugitive Slave Act and during Prohibition. Unfortunately, like so many of our basic rights and freedoms today, JN is under attack.

Some prosecutors and judges see JN as a threat to their power. Judges routinely prevent defense lawyers from informing jurors of JN and/or prevent pro JN jurors from serving. Recently, a Texas prosecutor argued that merely advocating for jury nullification is a crime, comparing it to perjury. That would make this column illegal.

What these JN opponents fail to realize is that the power to convict and acquit comes from the people. Judges have no power to review a not guilty verdict. Prosecutors have no right to tell a juror to convict anyone.

Is JN still useful today? If fighting injustice is useful, then JN is useful. Jury Nullification is an important check on prosecutorial discretion. Texas has over 2,300 felony offenses. Prosecutors have nearly limitless authority to bring these cases to trial. Texas law requires prosecutors to seek justice and not merely pursue convictions. Only JN can prevent a prosecutor from abusing her authority.

JN also recognizes that the political process is not perfect. Does anyone believe that our Texas Legislature is so wise or omniscient as to pass perfect criminal laws that should always be enforced?

To the contrary, our representatives in Austin have a history of passing and never repealing horrible criminal laws. It took a Supreme Court case to strike down the embarrassing Texas sodomy laws. Texas' misguided ban on selling vibrators also had to be struck down as unconstitutional.

In both cases the legislature lacked the courage and wisdom to repeal criminal laws that clearly had no purpose. JN provides an important check against legislative stupidity.

Finally, JN recognizes that preventing injustice is the ultimate reasonable doubt in a case. If you are a juror and you believe a law or prosecution is unjust you have the right, the duty, and the power to acquit.

Texas trains DWI officers with the NHTSA Standardized Field Sobriety Student Testing Manual. The NHTSA SFST Manual is the national standard for DWI enforcement. Every DWI defense lawyer should own a copy.

The manual includes, inter alia, training on how an officer should testify in court. DWI officers are professional witnesses, trained and paid to speak in court. Some of the manual's tips are pretty mundane; read the police report beforehand, listen carefully, take your time, speak clearly. Not too exiting.

Training Officers To Be Ignorant
Good propaganda demands blind adherence to principle. In our case officers are taught to never question "the studies" or the breath test machine.

Here is how the manual instructs officers to answer questions about the breath test machine, the Intoxilyzer 5000.

From the manual

You are not required to know, and in fact know nothing, about the Intoxilyzer 5000, or your jurisdiction breath test instrument, its internal workings or anything other than how to operate it and take a breath sample from a defendant.... Never testify to its internal workings, or the defense attorney will discredit you and make you out to be a "thinks-he-knows-it-all who really knows nothing

A typical breath test room contains the officer and the DWI suspect. That means NO ONE in the breath machine room knows how the Intoxilyzer works!! Another reason why you should have the right to counsel before bac testing.

What is worse in the encouragement of officers to not learn anything about the breath machine. What other profession would encourage ignorance? What is NHTSA afraid of? Maybe that the officers would read this, or this, or this.

Here is some more gold on NHTSA validation studies.

Be sure the officer is aware that NHTSA has done validation studies, and the SFST is considered very useful in determining whether or not is driving while intoxicated. The officer doesn't need to know the number, or care, because in this case, this defendant was impaired.

First of all, these studies have not been validated. Here is a great breakdown of the "studies" that "validate" the garbage SFST science.

For detecting innnocent drivers SFST's score as low as 7%! We certainly wouldn't officers to know that would we? They might lose the moral certainty required for subjective mass arrests. Officers shouldn't take time to learn about what they are doing. After all in your case, you are impaired.

The 2008 Olympics are upon us. While I am not a huge Olympics fan I do enjoy the scrutiny China is facing over their horrible human rights record.

What is not talked about as much is the persecution of criminal defense lawyers in China. Human Rights in China is promoting awareness of the abuse, arrest, and harassment of defense lawyers in China. From HRIC

The detention or harassment of lawyers in China for providing a zealous defense of their clients is of serious concern. More serious, however, are reports of physical attacks carried out on lawyers in China. In 2007, lawyers continued to be targeted for attacks. For example, Li Heping (李和平), a Beijing-based rights-defense lawyer, was kidnapped, beaten, and tortured with electric rods by a group of unidentified masked men on September 29, 2007, the weekend before National Day celebrations in China. Li was held in a basement outside Beijing until early September 30, when he was dumped in the woods outside the city. As he was beaten, Li was told to leave Beijing with his family or face the consequences. When he returned home, Li discovered that his license to practice law and other personal belongings were missing. His computer had also been completely erased.

I urge you to look seriously at the situation of lawyers in China, which remains dangerous. Hold China to its promise for a "Free and Open" Olympics by demanding the release of lawyers in China, like Chen Guangcheng, Guo Feixiong, and other lawyers in prison. We especially urge the immediate release of all individuals in who the UN Working Group on Arbitrary Detention has determined to be in detention arbitrarily and in violation of international norms. These individuals include: Shi Tao, Chen Guangcheng, Yao Fuxin, Hu Shigen, and Li Chang.

Criminal defense attorney's are the last line of defense against tyranny. I hope more criminal defense lawyers will find a way to support our Chinese counterparts. The best way to do that is up to each individual. Boycotting the Olympics is a popular gesture. However, I don't often watch the Olympics.

I also purchase a lot of goods made in China. I believe commerce and trade helps all Chinese, including attorneys.

Therefore, I will fight this injustice like any other. I will blog about it and ask fellow bloggers to share some time, copy, and effort on the subject. Visit the HRIC website for more information.

I would also encourage local bar association to endorse this press release from HRIC.

[Insert name of Bar Association] Condemns Ongoing Harassment of Lawyers in China

An independent bar-lawyers who can do their job without harassment, detention, or fear of reprisal-is vital to developing the rule of law. [Insert name of Bar Association] is concerned over reports of ongoing harassment of lawyers in China, including through detentions, surveillance, and physical assault. These reports suggest that lawyers are unable to do their jobs as zealous advocates for their clients.

As one lawyer in China noted, "If you want to be a legal professional, don't be a lawyer. If you want to be a lawyer, don't take on criminal cases. If you want to take on criminal cases, don't collect evidence. If you want to collect evidence, don't collect from witnesses. If you can't follow these rules, be prepared to report to a detention center." The [Insert name of Bar Association] deplores the climate of fear in which Chinese lawyers work and calls on the Chinese government to investigate any and all reports of intimidation and harassment of lawyers.

Pushingback.com is the "blog" for ONDCP, the Office of National Drug Control Policy. They are a full time propaganda outlet for the War on Drugs. Unlike real blogs PB does not allow user comments. PB also rarely creates any original content. They mostly link and post to articles they see as supporting Prohibition.

I have a fairly low of opinion of Prohibition propagandists. They are humorless moral busybodies with a skill set that makes them only fit for government work.

PB reinforces my beliefs almost daily. Today's post is a classic. Here it is, verbatim

Not much is funny about drug abuse, but Stephen Colbert takes a shot:

PB then links to this Colbert Report video with the a spokeman from the Drug Policy Alliance.

Watch the video for yourself. Then marvel at how PB thinks Colbert supports their position. Irony and humor are completely lost among bureaucratic stooges.

It is said that life is a tragedy for those who feel, and a comedy for those who think. Prohibition would have to be included in that definition. Unfortunately for America ONDCP does neither well.

Jury Nullification-I wrote a piece for a local news outlet on jury nullification. I'll post a link when it runs.

Here is the short version-
JN is the power of juries to acquit to prevent injustice. JN allows juries to determine if a law should apply or be enforced.
Judges and prosecutors who feel threatened by JN should realize that fighting injustice is the ultimate reasonable doubt. Why would a prosecutor not want juries to acquit to fight injustice?

If a prosecutor is seeking convictions, and not justice, then jurors have the right and the duty to return a not guilty verdict.

Finally, JN recognizes that Texas laws are not perfect. Therefore they should not be enforced for every violation.

I-45 Speed Trap
I live in Ennis and spend a lot of time driving up Interstate 45 to Dallas. There is hardly a worse speed trap in Dallas than I-45 South of 20. I hate watching these local cops harass motorists. The Ferris and Palmer police seemingly have no purpose beyond raising ticket revenue.

I want to do some open records work to exploit this nonsense. However, I am unsure of what to ask for? Merely asking for a copy of tickets won't help. I doubt a written policy exists that states "write more ticket we need the money" etc. Any ideas?

DMN Letter
The Dallas Morning News Published a letter I submitted. It is a heavily edited version of the recent entry on the Editorial Board's Drug War Formula. I was hoping they would publish my immigration letter also, but that hasn't happened yet.

Sitemeter makes it easy to browse the Google searches of my readers. Here are some recent search terms that led readers to DCDLB (formerly IWTS).

where to buy marijuana in dallas?
Reader, no one in America buys, sells, or uses marijuana. Our dear leaders in the federal government have declared that marijuana is verboten. Americans would never violate our divinely inspired federal drugs laws. I would be shocked if marijuana is for sale in Dallas, shocked!

Ok, all kidding aside. The hundreds of pot cases pending in Dallas County tell me that buying marijuana in Big D can't be that difficult. Perhaps a better question is "Where can't you buy marijuana in Dallas?"

Just so you know reader, Possessing or Selling Marijuana is illegal in Texas.!! Don't be like George W. Bush, Newt Gingrich, Barack Obama, Bill Clinton, The Beatles, Steve Jobs, or the new Governor of New York- Just say no!!

texas laws on possession of meth
In Texas possession of methamphetamine is at least a State Jail felony (under 1 gram). The crime, Possession of a Controlled Substance carries with it a sentence of 6 months to 2 years in State Jail (probation may be an option, or even required).

As a rule- jail in Texas sucks. However, State Jail is worse than your normal prison. Why? Unlike TDC (Texas Department of Corrections) State Jail has no "good time" credit, you have to serve your sentence day for day. So the inmates have no incentive to behave in State Jail. Ergo, they don't.

Possession of prescription amphetamines (Adderall) is a Class A misdemeanor.

alr hearing got dismissed does this help me for my dui case
It depends on why your ALR case was dismissed. If the judge found there was no probable cause to stop or arrest that will help your attorney defend your DWI case. If the case was dismissed because the right witness did not show up at the ALR hearing, then not so much. Either way, in Texas an ALR win does not prevent the State from filing a DWI case.

American Drug War is a briliant documentary now playing on Showtime. ADW exposes the history and hyprocrisy of the drug war. It is a much see for any drug war supporter, or opponent.

CIA/Cocaine
I have always taken CIA/Cocaine conspiracy theories with a grain of salt. I believe that government power is almost certain to be corrupted, and the drug war is morally bankrupt. However, the idea that the CIA would actually work with drug cartels struck me as impropable if not incredulous. ADW investigates this dark alliance. Here is a clip where former DEA chief Robert Bonner admits to CIA drug smuggling. From ADW.....

ADW implies that there was a pattern of CIA/drug cartel cooperation to fight communism, support friendly regimes in South America, and/or Iran-Contra. ">The CIA claimed they allowed one shipment of coke to be imported for the sole purpose of "intelligence gathering" on Columbian drug cartels.

Watch ADW and make up your own mind.

The Dallas Morning News Editorial board has a troubling history of drug war cheer leading. Today's editorial calls for supporting Bush's new Plan Meridia. Plan Meridia aims to fight the drug cartels in Mexcio by sending billions in cash and equipment to the Mexican government. Bush foreign policy combined with billions in federal giveaways- how could that not work?

Seriously, this editorial is such drivel that Pushingback.com has proudly linked to it. ( is there not a law that prevents federal agencies from lobbying for specific bills etc?)

Bush foreign policy combined with billions in federal giveaways- how could that not work?

Being a consistent Morning News reader I have discovered the DMN War on Drugs editorial formula.

1. State Problem caused by War on Drugs
2. Blame everything but War on Drugs for Problem
3. Call for more government to fix Problem

If DMN wants to write editorials about the War on Drugs they should take a little time to study the issue before shooting off poilcy recommendations. Until that happens we can expect more support for proposals designed to fail.

Let''s analyze the logic of Plan Meridia. The American government is going to send billions to Mexico to fight the drug cartels. Meanwhile American consumers send billions to drug cartels to supply drugs.

Before we begin another foreign policy disaster can we consider choosing a new supplier for drugs in America? Only legalizing drugs will put the drug cartels out of business.

Reason.tv hits another homerun with this video on illegal immigration. Drew and I both believe that we should welcome all peaceful people into America. The xeno mania sweeping Texas has led me to add a page for Non Residents on my new website.

Criminal defense lawyers have a history of standing up for the politically powerless. I'm proud to fight for all defendants no matter where they were born. Federal immigration is merely a reflection of which special interest groups bribed Congress last. Why we should violate the Golden Rule to enforce morally bankrupt federal immigration law is beyond me.