Dallas Criminal Defense Lawyer Blog

Gustav Update- It seems the Hurricane has passed by. We had some spotty yet intense showers. However, the brunt of the storm is still well east of Quintana Roo.

Drug War Terror in Mexico
11 decapitated bodies were discovered in Meridia. It seems to be the work of the Zetas, one of the largest drug cartels in Mexico.

There were some demonstrations against the violence in Mexico City. The newspapers and cable news outlets have provided much coverage of the tragedy and aftermath. However, the news media constantly fails to mention that American drug policy fuels this violence.

Insatiable American demand combined with Prohibition will always lead to violent organized crime. By making drugs illegal we have not eliminated demand, we have only chosen Mexican drug cartels as our nation's supplier. The perpetual violence and corruption in Mexico are an embarrassing testament to the hubris of our federal government.

Tomorrow I'm going to Mexico for a week of vacation. I should arrive just in time to catch Hurricane Gustav. I still haven't decided whether to bring the laptop. Expect light blogging, if any, for the next 7 days. Hopefully there won't be an evacuation.

La agregación de estos casos produce que alguien en general aconseje sobre la detención y búsqueda.

Primero, la policia le intentara y trampeara a menudo en la concesion de permisso para buscar su coche. Usted NUNCA debe de dejar la policia buscar su coche.

Por que? La policia puedo ser torcido, sus amigos pueden ser consumidores de medicinas{drogas}, y el oficial ha decidido ya que usted es un criminal.

Tenga cuidado con las siguentes lineas tipicas que la policia utiliza para poder conseguir su consentimiento de buscar.

El poli-"Usted no carga algunas armas, meth, granadas de mano, o cadaveres en su coche, no?"
Usted- "No."

El poli-"Entonces usted no se opone si busco su coche?"
Usted-"Realmente si me opongo. Ahora, estoy libre de ir?"

Ve la trampa. El policia esta implicando que solamente una persona que esconde algo negaria el persmiso de buscar. Él quiere que usted diga "No, no me opongo" antes de que usted tenga una posibilidad para pensar en ello. "En este caso la respuesta correcta es "Sí, me opongo realmente".

La policia raramente pide el permiso de buscar en una manera honrada. Porque? Ellos a menudo entran por la puerta de atrás por su petición de búsqueda. Por qué? Ellos quieren conseguir su consentimiento, sin informarle de su derecho de negarse.

Por qué quiere la policía buscar su coche? No porque les gusta usted, o "sólo{justo} para comprobar su vehículo" o para dejarlo ir. La policía sólo pide el consentimiento de buscar porque ellos piensan que usted es un criminal y ellos no tienen la causa probable de buscar.

La afirmación de sus derechos a menudo hará la policía enojarse. Aquí está
una respuesta típica.

Usted - "No quiero que usted busque mi coche."
El polis- "Bien, si usted no tiene nada para esconderse por qué no puedo buscar?"
Usted - "Soy libre de ir?"
El polis- "Si usted no me deja buscar voy a sacar el perro de medicina {droga}!"
Usted - "Soy libre{gratis} de marcharme?"

En aquel punto el policia es dejado con una decisión en si hay que llamar realmente la unidad K9, o dejarle ir. No se siénta mal para él oficial.. Él es el que quién causó este problema. Usted todavía puede rechazar la busqueda, aun si el oficial se enoja, o le amenaza.

El comienzo de pregunatar a la policia si usted es libre de ir es oidio para la policia pero es importante. Durante una parada de tráfico la policía sólo debería investigar violaciones de tráfico. Ellos se informarán de la violación, comprobar su licencia de conducir y el seguro del coche, y comprobar autorizaciones de arresto. Si al principio la policía pregunta sobre medicinas{drogas}, es porque ellos piensan que usted los tiene.

Finalmente, nunca intente y pare a un oficial de la busqueda. Esto es siempre una mala idea. Incluso si usted piensa que él actúa ilegalmente, al lado del camino no es el lugar para corregir el comportamiento de oficial malo.

I represent clients for whom English is not their first language. In my experience most of these defendants do not realize that in America, you are under no obligation to cooperate with the police.

These clients are shocked to learn that they could have refused field sobriety testing or refused to let the police search. Therefore, with the the help of my translation program any my wonderful assistant Reyna, I am going to republish my earlier post, Can I Search Your Car, in Spanish.

It's important that all defendants understand that in America, you have the right to remain silent and not produce evidence against yourself, even if you don't speak English. I know many readers get this sent out via email and may not appreciate old material in a new language. Let me apologize in advance.

I'm jumping late on the blawger iphone picture bandwagon. Here is a picture I took on August 20th on my iphone. It shows the front lawn of the Kaufman Courthouse at 2:30pm.

Why such a banal photo?

Well, the sprinklers were on at 2:30pm, during a rain storm, during the wettest August week on record. This photo is worth at least 1,000 words on government.

The Dallas Jail continues to vie for the title of the worst run jail in Texas. Recently, a jury awarded $900,000 to a man who was denied medical care while in custody. Grits has a great breakdown of the verdict.

To make matters worse, Dallas uses this dangerous jail to incarcerate those with outstanding traffic fines. The Dallas city council has chosen to arrest their way to fiscal responsibility. The annual expenditures for kickbacks and corruption must contribute to the need for revenue. To fill the coffers Dallas launched the ill conceived "Operation Pay or Stay" program. The result is that one of the most dangerous jails in Texas, is now being used a debtors prison.

Tarrant County has already had a traffic ticket arrest turn into a death sentence. It is only a matter of time before Dallas experiences a similar tragedy.

I'm going to Mexico next week. I'm debating whether to bring my laptop. I'd like the option to stay connected while on vacation. However, bringing a laptop to the airport gives the government the unilateral right to seize it without cause. The odds aren't very high that TSA, Customs, or DHS would take my laptop. Still, this is my only laptop, it contains my privileged attorney work product, and I don't want some flunkie bureaucrat molesting my computer.

I've blogged before about the warrantless suspicionless laptop seizure program. Department Of Homeland Security- Protecting Freedom By Repealing The 4th Amendment .

Why does DHS need your computer? Just ask the Department of Homeland Security blog, the "Leadership Journal". In this post, Jayson Ahern, the Deputy Commissioner of Border and Customs, explains why Americans should want the federal government to seize computers without cause.

From Mr. Ahern-

Our ability to inspect what is coming into the United States is central to keeping dangerous people and things from entering the country and harming the American people. One of our most important enforcement tools in this regard is our ability to search information contained in electronic devices, including laptops and other digital devices, for violations of U.S. law, including potential threats.

These searches have helped limit the movement of terrorists, individuals who support their activities, and other threats to national security. During border inspections of laptops, CBP officers have found violent jihadist material, information about cyanide and nuclear material, video clips of Improvised Explosive Devices (IEDs), pictures of high-level Al-Qaeda officials, and other material associated with people seeking to do harm to our country

Sorry Ahern, I'm not scared enough to support your goons seizing my computer. All the dangerous information you found can be gathered from youtube or wikipedia. Have you considered that terrorists can easily email this information, or post it on the internet?

What's more important is what Ahern doesn't mention in his blog.
This dangerous computer data could have been stopped without the warrantless seizure program (the suspects had visa/immigration problems). And his program has never caught an actual terrorist.

When we let the government seize property without doing a real investigation it means that the government won't do any real investigation. That's not police work, that's lottery law enforcement. This is why the 4th Amendment banned such searches. They are repugnant to a free people, and they don't work.

I recently received the DPS racial profiling data for Collin, Dallas, and Ellis County- Click here for the google spreadsheet. This covers stops, tickets, and searches by DPS troopers only; not local police or sheriff deputies.

Do you want the racial profiling stats for your county? The process is simple.
1. Email pio@txdps.state.tx.us
2. Ask for the racial profiling data for your county
3. Include your name, address, fax, phone, and email address (the stats are in excel format)
4. Expect to pay around $10-20 bucks.

A quick look at the numbers tells me that the word is not getting out on consent searches. Ellis county led the way with 294 consent searches last year. For more on consent searches, and why you should refuse-Can I Search Your Car?

More Death and Violence in Mexico
DMN reports on the escalating drug war in Mexico. Violence is reaching new levels as drug cartels fight for the right to sell drugs to Americans. The headline to the story is promising- As Juárez violence escalates, debate rages on whether Mexico's drug war is working

However, DMN never actually questions if Mexico should abandon Prohibition. The emphasis is on whether Mexico is doing enough to stop the cartels. From DMN, brought to you by the DEA-

With two mass killings in recent days, more than 1,200 people have been killed statewide in drug-related violence this year, according to tallies kept by Mexican media.

Juárez is leading the country in killings, surpassing even Mexico City. More than 850 have been killed in this city of 1.5 million people right across the border from El Paso, including about 150 in the past three weeks.

The state toll makes up more than 40 percent of the nationwide total of 2,700 people killed in drug-related violence this year.

MADD- Lying with numbers..... again
Few entities lie with statistics like MADD. From "alcohol related fatalities" to the benefits of .08 MADD has few scruples against wholesale statistical manipulation, if not outright fraud.

CATO exposes yet another dogmatic belief of MADD- that criminalizing drinking under 21 saves lives. From CATO-

Unfortunately, the neoprohibitionists at Mothers Against Drunk Driving (MADD) and elsewhere have already sprung into action in an attempt to squelch any reform-minded opinions. MADD National President Laura Dean-Mooney said in a press release that any discussion of the minimum drinking age “must honor the science behind the 21 law which unequivocally shows that the 21 law has reduced drunk driving and underage and binge drinking.”

Of course, MADD’s preferred “science” ignores a very interesting working paper published by the National Bureau of Economic Research that shreds the oft-cited correlation between adoption of the Federal Uniform Drinking Age Act (FUDAA), which forced all states to have a minimum drinking age of 21, and a reduction in alcohol-related traffic fatalities.

How could this study’s findings differ so greatly from the research that MADD touts?

The paper, penned by Jeffery A. Miron and Elina Tetelbaum, points out that prior research consistently errs by including states that were unaffected by the law — the 12 states that had adopted a minimum drinking age of 21 long before FUDAA was passed and forced states to do so. Those states — for reasons unrelated to the federal law — experienced a dramatic decrease in alcohol-related traffic fatalities in the 80s and their inclusion in previous studies led many researchers to falsely conclude that the FUDAA was the key factor in the national trend.

That trend, however, began well before the FUDAA was passed in 1984. As the study notes: “[T]he decline began in the year 1969, the year in which several landmark improvements were made in the accident avoidance and crash protection features of passenger cars.” The study also recognizes that medical advances probably deserve a great deal of credit for the reduction.

Deferred adjudication is a type of probation that does not result in a final conviction. For example, in Kaufman County many defendants received plea bargain offers of deferred adjudication probation for misdemeanor marijuana cases, usually for a period of 6-12 months.

In order to accept a deferred adjudication the defendant pleads guilty. However, the judge will state that she is "withholding a finding of guilt" even though she has enough evidence (your guilty plea) to find you guilty.

If these defendants successfully complete probation, then they are never convicted of possession. Avoiding a final conviction has many advantages. These defendants would lose their college financial aid eligibility with a drug conviction. However, there are some common misconceptions about the benefits of deferred.

Deferred Adjudication does NOT mean a charge will not be on your record
Probably the biggest myth about deferred is that the case will not be on your record. I receive many phone calls from individuals who accepted and completed deferred probation only to find out that the case shows up on background checks. Despite having no conviction these individuals may be prevented from receiving professional licenses, or employment.

Completing a deferred probation does not keep private background check companies from sharing the information about your probation. You can not unring that bell. Once publicdata.com or knowX get the information, they will keep selling it. You can file a motion for non disclosure and seek restriction of this information. In an information age I find that an MFND will not always achieve the desired result.

Deferred cases can NOT be expunged
If your case is deferred you are not eligible to have that case expunged. Expunction in Texas is only for not guilty verdicts, and dismissals.
For more information on expunctions see Texas Expunctions 101.

Texas Deferred Reform
Many defendants accept deferred adjudication with a clear misunderstanding of the consequences. Deferred adjudication is supposed to be a second chance, a chance to keep one's record clean. Even worse, it is most often offered in the weakest of cases. I have no doubt many innocent defendants plead guilty to deferred to avoid the possiblilty of a conviction and/or jail time.

Google searching led me to deferredadjudication.org, a group that lobbies for the rights of those on, or who have completed deferred probation. Texans who compete deferred deserve a fresh start. Ask you state rep to support reforms for deferred adjudication.

I'm jumping in late on the 21 drinking age debate. Any law that is nearly universally ignored should be abandoned. That being said, the 21 drinking age law is not without value. It does teach young Americans valuable lessons about the criminal justice system.

Lesson One
Some laws are stupid. Stupid laws can be enforced as vigorously as good laws. This enforcement creates disdain for law enforcement among groups who would otherwise support law enforcement.

Lesson Two
Good people break stupid laws. Young Americans get to watch as their friends enter the criminal justice system for breaking the government's sanctioned drinking age.

Even worse than criminalizing routine college behavior isMADD's determination to criminalize drinking by soldiers, on base. These people aren't criminals and do not need to be part of the criminal justice system.

Lesson Three
Finally, stupid laws create a whole industry of stupid law support, funded by tax dollars, and often ignored.

My college campus was constantly inundated with miserable people espousing alcohol abstinence. Students learn to ignore these histrionics and spot obvious ethos violations.

Application
These lessons are all useful as adults. In fact, they translate very well to evaluating the drug war. These under 21 proponents, and pro drug war groups are ideologically identical. The sooner young Americans learn to question these entities, the better.

Speaking of official oppression, Dallas is planning to celebrate Labor Day by violating your constitutional rights. It's another "No Refusal" weekend!!

To kick off the festivities Ryan Evans, First Assistant City Manager, sent out this letter regarding DWI no refusal weekends. A reader was kind enough to send me a link to this letter.

The letter begins with a clear misunderstanding of Texas law. From bureaucrat Evans-

"Under the Texas Implied Consent Law a person arrested for DWI is required to provide a breath and/or blood specimen."

Which implied consent law would that be Mr. Evans? Certainly not this one.

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES;

After this strong start bureaucrat Evans proudly declares that DWI blood draw warrants are issued for innocent drivers only 8% of the time-Therefore this program is a great success! I wouldn't put too much stock in those numbers. After all, the government will lie with numbers to convict for DWI. Assuming they are true, you should still oppose blood draw warrants.

Proponents of DWI blood draw warrants often argue than some of the blood collected is over the .08. That is a fool's argument. The fact that violating the Constitution makes conviction easier, or provides useful evidence, is not a reason to violate the Constitution.

We could convict more defendants if we eliminated the right to counsel and beat defendants until they confessed. That doesn't mean we should. Can you hear the arguments of petty tyrants like Mr. Evans- "But 93% of those we beat confessed, and were guilty!!"

For those new to this blog here is some background on DWI blood draw warrants Here is my FAQ on the subject. These forced blood draw warrants should violate both the Texas Constitution and Texas' implied consent law. I say should because appellate courts have invented a DWI exception to the Bill of Rights.

Finally, if the police are doing their job and have actual evidence of intoxicated driving, why do they need these warrants in the first place? Because the goal of law enforcement is to convict, not to see that justice is done. Happy Labor Day!

A reader wants to know about "official oppression." Texas does have a law against official oppression. That sounds better than it is. Prosecutions are extremely rare. I've never seen one.

What is OO? If the police pull you over and offer to let you go for sexual favors. Or if the game warden illegally keeps you from voting.

It doesn't have to involve law enforcement, just a "public servant acting under color of his office." From the penal code.

§ 39.03. Official Oppression

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

Need to see if a friend or loved one is in the Dallas County Jail?

Here is the Dallas County Jail Lookup It's like Facebook for inmates. You can search by name, bookin numer, or criminal case number.

Dallas has one of the worst jails in the country. It constantly fails inspection. If you do search and find a friend or family member in the Dallas jail, bail them out before they get a staph infection.

A recent poll shows that 31% of Americans want the government to regulate blog content via the "Fairness Doctrine". The FD would force blogs to provide equal time to opposing viewpoints. Let's see how this would work in practice. Recently, a Wichita Falls man was sentenced to 99 years for DWI. I'll provide equal time to different viewpoints on the issue.

First up is the DUIblog by Lawrenence Taylor.

So what do you do with someone who has the genetic disease of alcoholism – and continues to drink and drive? Get him treatment for his disease? Or maybe you throw him in prison for the rest of his life.

Wichita County Man Gets Life Sentence for 10th DWI
Wichita Falls, TX. Aug. 8 - A man with nine previous drunken driving convictions was sentenced to life in prison. Kenneth Chris Oneal, 58, received the maximum sentence Thursday after jurors convicted him of driving while intoxicated-repetition, his 10th drunken-driving related offense…

Well, you say, he may be an alcoholic, but he didnt have to choose to drive. But that’s a Catch-22, isn’t it? I mean, part of the legal definition of driving while intoxicated is impaired judgment – the inability to make rational and intelligent choices.

This sentence is far from an aberration. See, for example, Third DUI = Life in Prison and 99 Years for Drunk Driving.
A Texas man with nine previous drunken driving convictions was sentenced to life in prison.

For 15 years now, the DUI fatality rate has remained fairly stable (see MADDness and Latest Figures in MADD’s War on Drunk Driving). In view of the fact that most fatalities are caused by recidivists — usually alcoholics — isn’t it time to consider alternatives to MADD’s hysterical vengeance/prohibition approach? Read Time for a Change .

Now for the counter point, here is MADDs blog-

A Texas man with nine previous drunken driving convictions was sentenced to life in prison. Read the complete story from KTVT.

The goal of MADD’s Campaign to Eliminate Drunk Driving is to end drunk driving permanently through:
1) High-visibility law enforcement, including sobriety checkpoints
2) Ignition interlock devices for all convicted drunk drivers
3) Advanced vehicle technologies that will prevent drunk driving
4) Public support

Which blogger provides better content and a unique viewpoint? Which post is cut and paste blog drivel? The FD would force blogs like mine to provide equal time to hopelessly untalented bloggers.

The Fairness Doctrine may or may not come back. If it does I will become the Al Capone of blogging. I wouldn't subject my viewers to crap police state bloggs like MADD or Pushingback. These tax payer funded blogs can't earn an audience. We should not allow the government to mandate an audience for them.

The local media is in a tizzy over the arrest of Officer Alph Coleman.

Allegedly, Officer Coleman helped coordinate a robbery at a Sam's Club. Officer Coleman was working security at the Sam's when it was robbed. There is some pretty compelling evidence against Officer Coleman. From DMN-

Police say the getaway driver was behind the wheel of Officer Coleman’s civilian car. They also obtained cell phone records showing that Officer Coleman called the driver several times just before the gunman entered the store.

So what does Officer Coleman do when the police want to question him? He shut up. Maybe Alph read Houston Defense Lawyer Mark Bennett's Million Dollar legal advise. From DMN-

When investigators spoke to him Tuesday, he refused to answer questions about the June 27 robbery of the Sam’s Club in the 2900 block of West Wheatland Road.

Even the police know not to talk to the police.

It's a busy work week, which makes for slow blogging. Here is Colbert Report gem via the Agitator. H/t to Radley.

Enjoy.

Can anything sum up our idiotic federal marijuana policy better than this 5 minute clip. I've seen a lot of media about the War on Drugs, and medical marijuana. This is some of the best.

For those who still want patients arrested

1. The federal government grows medical marijuana at U Miss.
2. The federal government has a patent on medical marijuana
3. Texas has had a successful MM defense for pot possession

I doubt our next lege session will have the courage, compassion, or common sense to pass medical marijuana legislation. However, it is only a matter of time before all state abandon the cruelty of arresting MM patients.

For those new to the blog I am a member of the National Organization for the Reform of Marijuana Law's (NORML) legal comittee. I used to prosecute pot cases, now I defend them. My goal is for a future in which lawyers will do neither.

That being said, here is This Week In Federal Marijuana Prohibition

Marijuana Is Grown By Illegal Immigrants!!!
CNN reports that Mexican Drug Cartels are using illegal immigrants to grow pot in national forests. Lou Dobb's network manages to hit all the xeno panic without asking the simple question- Wouldn't legalization end this practice?

Last time I checked Mexican drug cartels were not using illegal immigrants to grow tobacco, or run moonshine stills. If you are really want to end these drug cartel pot farms in national parks, legalize pot.

Deadly Addictive Substance
Here is a video of prohibition's Colonel Klink, John Walters. John makes a few statements while chopping down pot plants. Among them is that
1. Hollywood must quit glamorizing pot, this is their fault
2.This isn't "Cheech and Chong" marijuana.
3. Marijuana is a deadly addictive substance

Let's break down these three statements.
1. Hollywood is a typical scapegoat for lost conservative causes. Why should prohibition be any different?
2 shows the need for legalization. When marijuana is legal, I'm sure Cheech and Chong brand pot will be trademarked and consumers will know for sure if certain plants are CNC brand. Mr. Walters is right, we need better labeling of marijuana products (thc level etc) so consumers can make informed decisions.
3 is 100% false, no one can overdose on marijuana and addiction potential is extremely low. However, Mr. Walters salary, power, and benefits are built on that lie so he isn't really in a position to question it.

Notice all those federal para millitary forces chopping down pot plants (are the masks really necessary?) Is that the best use of your tax dollars? You employ 200 full time federal agents who do nothing but chop down pot plants all year. Do you like watching John Walters use your tax dollars on a federal para military gardening operation?

The Charlie Lynch Mushroom Jury
Here is why we need to fire the John Walters of the world. These petty tyrants joyfully incarcerate decent hard working Americans for marijuana crimes. Charlie Lynch is only the most recent victim of federal medical marijuana prosecutions.

Mr. Lynch was found guilty of violating federal marijuana laws despite the fact he operated a state licensed and legal in California marijuana dispensary, and despite the fact he sought DEA advise and approval for his operation.

Mr. Lynch opted for a jury trial. Unfortunately this was a typical mushroom jury (kept in the dark and fed shit). The jurors were not allowed to hear important defense evidence. And of course, all jury nullification arguments and evidence were prohibited.

For a sobering, if not scary insight into how the federal criminal justice system,"> watch this great video by reason.tv.

New Fiction Novel By Federal Government
Finally, the federal government released their annual marijuana "factbook". There are many websites devoted to debunking this information. I was happy to list them for USNews readers.

If you were to believe this "factbook" marijuana is a deadly addictive substance, and the only way to control this threat is by banning pot, and arresting users.

Unfortunately, many Americans believe this fear based propaganda. Then again, many Americans will sign up to ban water if you describe it the same way our federal goverment describes pot.

Ban Water? Really, watch this video by Penn and Teller, then you will understand why histrionics and fear mongering is a favorite among the Prohibition crowd.

Ever wondered how DPS operates their DWI blood testing machine? Probably not. But if you are a DWI attorney, or defendant, this is an important topic.

I am proud to present the Texas Department of Public Safety's

Standard Operating Procedures for Blood Alcohol Analysis by Gas Chromatography

Interesting fact about Gas Chromatography machines. GC machines do NOT measure the amount of alcohol in a blood sample. Rather a GC measures the chemicals in the head space gas surrounding the sample. Henry's Law is applied to determine what the BAC is.

The manual is short, but not a very exiting read. If any scientists/medical technicians wish to offer some insight please comment.

MADD recently started their own blog. It seems no one has noticed. Comments are sparce. Not surprising since the writing is formulaic blog drivel.

From the blog title it appears that neo prohibitionist mission creep has set in at MADD. Not content to eliminate drunk driving, MADD is also on a crusade of "underage drinking prevention" and "support of the 21 minimum drinking age law".

Most posts link a news story about a DWI death or a repeat offender being arrest. Then MADD touts their simple solution that would magically prevent all tragedies in the future. MADD is selling security and only asking for a little liberty in return.

The theme of the MADD blog is that if you don't support their neo prohibitionist idiocy (banning kegs, arresting college students for drinking) or their police state idiocy (making it a crime to refuse a breath test) you must support death on the highway.

That isn't the choice; between death and freedom. We have been tough on DWI and the fatality numbers aren't responding. We have already repealed the 4th, 5th, and 6th Amendment for DWI suspects. Maybe, just maybe, a new approach is warranted.

Since the Court of Criminal Appeals granted a stay of execution for Attorney Client privilege I haven't blogged about the subject. I think it's time to start the conversation again.

One thing that the ACP protects is your attorney's work product, his files, his notes etc. Without attorney client privilege the State could issue a warrant and seize your attorney's files. Think that wouldn't happen? You must not practice law in Collin County.

TCDLA sent this email today detailing the police raid on defense lawyer Keith Gore's office. Keith was under suspicion from local authorities for allegedly representing a criminal defendant in Collin County.

The police thought Keith may have actual physical evidence in his possession. There was a subpoena issued for the evidence and the police raided Keith's office. No physical evidence was found, so the police took Mr. Gore's files instead. This is the sort of skullduggery that attorney client privilege and work product doctrine are supposed to protect.

From TCDLA-

Attached is the Amicus brief filed August 5 in Collin County on behalf of TCDLA, in support of Keith Gore. To see the brief please click on this link: http://www.tcdla.com/docs/AMICUS%20BRIEF%20FIILED%208-5-08.pdf

As you may know, the issue here concerns the search of a lawyer’s office, which resulted in the seizure of a box of documents. On February 29, 2008, TCDLA Member Keith Gore from McKinney had his office searched pursuant to a search warrant. Before the warrant was signed, the Collin County Grand Jury had issued a grand jury subpoena for certain evidence believed to be in Gore’s possession regarding his defense of a person accused of capital murder. Gore properly filed a motion to quash the subpoena and set a hearing. Before the hearing could be held, the State obtained the search warrant.

This is a matter of highest importance to TCDLA. Keith Gore is a highly respected lawyer and member. Gore was defending his client and the State’s ability to obtain evidence in his possession through proper legal means. The State denied Gore the opportunity to be heard at the hearing on the motion by obtaining the search warrant.

A hearing was held today on the defendant’s motion to recuse the judge, who had heard the motion on stipulated evidence. The court was concerned that the judge issuing the search warrant knew about the hearing on the motion to quash before he signed the warrant and that the judge issuing the search warrant became a chain of custody witness because he opened a sealed box. The opening of the sealed box is disputed, the judge saying he didn’t and the police saying he did.

Thanks to everyone who showed up for the hearing. We should have a ruling on or after August 15, 2008.

Continue reading "Attorney Client Privilege In Collin County" »

I filed an open records request for documents pertaining to the Cherry Pit raid. I received the affidavit used to search the premises and the investigation report.

Cherry Pit Search Warrant Affidavit and Return

Cherry Pit Investigation Report

I don't have time to break these down yet. Let me know your thoughts.

One reason I offer free consultations is to educate the public about the criminal justice system. If you hire me or not I want you to know what to expect and what your options are.

Unfortunately, education also includes breaking bad news to potential clients. I have had a few inquiries about appeals only to inform the defendant and/or the defendant's family that there will be no appeal because deadlines have been missed.

To avoid this in the future here is a quick guide to state criminal appeal deadlines.

You Must File A Noitce Of Appeal Within 30 Days Of Sentencing
Ok. To keep this simple, hire an appellate attorney as soon as possible. If you are remotely considering appealing your case quit reading this and find a criminal defense lawyer.
If you really want to know the law then keep reading.

What is the law?
From the Texas Rules of Appellate Procedure (yes the initials are TRAP)-

26.2 Criminal Cases. The notice of appeal must be filed: (1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

30 days from sentencing
A plea of guilty, or a guilty verdict from a judge or jury alone does not start the deadline for appeal. The important date is when sentence is imposed. Many cases, including most plea bargains and misdemeanor cases, will include sentencing on the same day as the verdict. Some cases will include a separate sentencing hearing, or sentencing will be put off until a future date to let the jury have a break.

Motion For New Trial
The deadline for appeals may be extended if a motion for new trial is timely filed. What is a Motion for New Trial? Again, quit reading this and find an appellate attorney.

From TRAP-
RULE 21. NEW TRIALS IN CRIMINAL CASES

21.1 Definition.
(a) New trial means the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt.
21.2 When Motion for New Trial Required. A motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record....
21.4 Time to File and Amend Motion.
(a) To file. The defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court.
(b) To amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

Unfortunately, some defendants are sentenced and begin probation or incarceration without knowledge of this deadline. Your trial attorney should make you aware that you have 30 days to file an appeal. If she doesn't and you miss this deadline you can still file a Writ of Habeas Corpus (for ineffective assistance, inter alia). However, Writs are much more limited than appeals.

Recently, the Department of Homeland Security gave it self the power to seize the laptops of airport travelers. DHS unilaterally decided that it may steal your computer without cause and keep it forever. In order to protect your freedom DHS has repealed the 4th Amendment- From the founding fathers-

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Stealing laptops without cause would seem to qualify as an unreasonable seizure.Unfortunately, the 9th Circuit Court of Appeals recently upheld this despicable practice. I wouldn't hold my breath for a supreme court reversal.

How does DHS justify this unconstitutional privacy violation? First, with denial. Then they cite the War on Drugs as precedent for suspicionless border searches. Finally, the DHS claims that stealing laptops may turn up kiddie porn. You aren't for kiddie porn are you?

From the Washington Post

Customs Deputy Commissioner Jayson P. Ahern said the efforts "do not infringe on Americans' privacy." In a statement submitted to Feingold for a June hearing on the issue, he noted that the executive branch has long had "plenary authority to conduct routine searches and seizures at the border without probable cause or a warrant" to prevent drugs and other contraband from entering the country.

Homeland Security Secretary Michael Chertoff wrote in an opinion piece published last month in USA Today that "the most dangerous contraband is often contained in laptop computers or other electronic devices." Searches have uncovered "violent jihadist materials" as well as images of child pornography, he wrote.

Notice what DHS didn't say- that they could do they same work with warrants (if they weren't so lazy and incompetent), that this has not prevented any terrorism, and that are no safeguards in place to protect the innocent. When you replace the safeguards of the 4th Amendment with security theater and zealous bureaucrats, you are defending liberty by destroying it.