Dallas Criminal Defense Lawyer Blog

Every fall brings about an influx of phone book representatives. They ascend upon law offices searching for easy ad revenue. For most attorneys it is a non decision- they are bound by fear and tradition to keep advertising in the phone book.

The phone book rep will always tell you that your neighbor just bought a bigger ad with better fonts and colors. This begets an advertising arms race. It reminds me of the same herd/fear mentality that caused the purchase of so many study aids in law school. Among 1Ls there was a near universal purchase of all the "right" study aids. If your peers bought the Torts flash cards and you didn't, you were at a perceived disadvantage. Many of these study tools went unused and later are sold at a discount to the incoming 1Ls. The same mentality makes the attorney phone ad game alive.. After all, lawyers are simply older 1Ls.

When I began my practice conventional wisdom held that the phone book was the best way to reach new clients. I disagree and this year I am not renewing my phone book ads.

This will come as a shock to many of my colleagues but the phone book ad game hurts our clients. The phone book rewards firms with the biggest phone ad budget. For example- if you are in the car wreck business the prime real estate is the back, front, and/or side of the phone book. That way, prospective clients need not even open the book to see your number. This system relies on clients hiring the first attorney they contact.

Personally consulting with an attorney has high opportunity costs. It takes a long time to schedule and interview multiple attorneys. Time many clients don't have.

How do phone book ads help the client make an informed decision? They don't.

First, phone books are no meritocracy. They will sell prominent ads to any firm, regardless of credentials. Attorneys can advertise for any area of law regardless of qualification or experience.

Phone books provide the same useless information for every lawyer (name, address, and phone number). To prospective clients this makes all lawyers look the same. There are only so many ways to put to arrange a gavel or American flag on an ad. No amount of great ad design helps the client decide which attorney is best for their case.

The main beneficiary of phone book ads is the status quo. The attorney that made the most last year, can usually afford the biggest ad next year. It suppresses the creative destruction of the market place.

It will come as no surprise that I view the google/blog method as highly superior. It gives clients a much more detailed view of a lawyer's practice. You can tell a lot from reading a blog. You can also quickly weigh your options. Choosing between multiple attorneys no longer requires multiple long embarrassing interviews.

My phone number and address are easy enough to find online. They will be a little harder to find in the yellow pages.

The election of Matt Shirk as Public Defender in Florida begs two questions.

1- How should chief public defenders be chosen?
2- Who is Matt Shirk?

From The Agitator

Shirk, who was backed by the local chapter of the Fraternal Order of Police, has never defended a homicide case. His campaign promises included a vow not to oppose funding cuts to the office he was running for, and a promise to squeeze as much money as possible out of indigent defendants, including a proposal for hte postponed billing of acquitted defendants who might later be able to find some employment.

The democratic process has produced a GOP Chief PD more dedicated to cutting spending than fighting for the indigent. The election of Mr. Shirk highlights the main problem with allowing the public to elect the public defender- the public hates criminal defendants.

That's right. You (the voting public) hate criminal defendants. Even worse, you hate spending tax dollars to defend murderers and drug dealers. If someone ran on a platform of spending less money to defend the indigent, you would (and did) vote for him.

So what is the alternative? In Texas most public defenders are chosen by the county commissioners. I have some experience with this. My first job out of law school was with the Wichita County Public Defender in Wichita Falls. The county commissioners at that time wanted to shut the office down. There was a conflict with our chief PD, and a pissing match ensued.

The office is still open. However, I quickly bailed and took a job as a prosecutor.

I don't believe letting the county commissioners pick the PD is a great system either. With the public voting you have to anger thousands of voters to lose your job as chief PD.

With county commissioners you only have to piss off 3 or 4 local politicians and you lose your job. What's worse, local politicians can be easily pissed off. Local politicians can also share the public's disdain for providing indigent defense.

What is the best way to pick the Chief Public Defender? It's a position that the public doesn't want to exist and that the county commissioners don't want to fund.

This article wouldn't be complete without a solution. It is folly to expect the majority to elect someone who represents a hated minority. Therefore, we should open up a special vote for public defender and limit the voters to defense attorneys, convicted criminals, and current defendants. They have the most experience with the system, and do not share the disdain for criminal defense.

Blogging inspiration can be hard to come by. In the past my goal was to write almost every day. Now I'm down to about 4.5 posts a week. One reason is I do a lot more self editing and censorship.

Long time readers will remember IWasTheState.com, my first blog. That blog included discussions on free market ideas, libertarian politics, objectivism, the national debt etc. It was an informal blogspot (blogger) project. My first post was about my trip to Italy.

Last year I dumped IWTS for DallasCrimianlDefenseLawyerBlog. Even the title indicates that I'm bowing to the Google search engine gods. The quest for SEO relevancy/more hits has led to more self censorship than before (not less grammatical errors however).

I have purposefully limited my blog to criminal defense topics. For example, I don't blog about political issues that aren't directly criminal justice related. I spend less time on drug war rants than I used to. I try and avoid material I've written about in the past.

Houston criminal defense lawyer Mark Bennett (the leading Texas blawger) feels comfortable calling out lawyers who pose as defense attorneys. I share Mark's disdain but I lack the courage to post the pictures and names of local attorneys.

Finally, I read many blogs daily and try to avoid topics that have already been covered. I assume that all my readers check Grits, DefendingPeople, and The Agitator every day. I don't want to retread old issues. However, with new blawgs popping up every day originality has become a precious commodity.

The result; more effort and less blogging. Back in the IWTS days I set a goal of a post a day. Quantity over quality. Now I try for 4 posts a week. I can't tell which approach is better. However, the latter is much more stressful. Much like the difference between improvisation and memorizing a soliloquy.

I'll leave it open to my readers. What do you want from this blog? Juicy courthouse gossip? News commentary on criminal justice issues? Haikus?

Should I give up on my quest to satisfy the SEO gods and write about my daily life? Maybe start a twitter feed (I'm waiting in court, I'm waiting in court, I'm waiting in court)?

I launched the Kaufman County Bar's first website last week. KaufmanBar.com will answer your Kaufman Bar questions like

When is the next bar luncheon?
Who is the bar vice president?
When is the next bar luncheon?
When is the Christmas party?
And finally, when is the next bar luncheon?

Bar president Tracy Booker is going to help with content. To keep things simple this is just a blogger page. I'm trying to get blogspot.com address to redirect, but I've not been successful. If you can tell me how to do this let me know.

www.sobrietytesting.org is the National Sobriety Testing Resources Center. This website limits access to police/prosecutors and shares DWI testing information. Defense attorney's aren't welcome.

Naturally, I filed an open records request with the Department of Public Safety to see what documentation, emails, or letters they had from this group.

Today I found out- None.

I find it hard to believe that a National Sobriety Testing Resource Center has not a single member from DPS. However, that's what DPS is telling me.

The police pull you over and find a suspicious white powder in your car. You swear this powder is for your athlete's foot. The police believe this powder is cocaine.

You are booked into jail. Bail is set at $25,000. The powder is sent to the DPS lab for further testing. You spend two weeks in jail but the DPS lab report comes back negative. Vindicated, you leave jail, short two weeks of life you will never get back.

Think that never happens? You must not practice criminal defense in Texas.

A similar situation with a client led me to file an open records request with DPS. I asked for documentation of cases in which "drugs" were sent to the DPS lab, tested, and found not to be drugs. Here is a copy of my email I sent to the DPS Public Information Office. (To learn how to send your own Open Records Request, click here).

Please accept this email as an open records requests.

Please send all documentation of DPS lab drug testing in which a substance turned out not to be a controlled substance (including marijuana). Please send all offense/arrest reports for these cases.

Please include Dallas and Kaufman County. Please limit this request to cases from 1/1/2006.

I would also like any training manual for testing controlled substances in the field, and DPS lab testing of substances.

I received 62 cases from Kaufman County, and over 500 from Dallas County!! I am still awaiting the police reports on these cases.

Questions I have-
Were these substances all field tested? Were those field tests positive?
Did the suspects tell the police these were not drugs? Did the cops ignore these pleas?
How long did these suspects sit in jail? What was bail set at?
How many of these tests were for marijuana? In Texas, the police can testify that a substance is marijuana. For other drugs, a lab test is required to confirm the substance is narcotics.

Finally, whenever Dallasnews.com does a story on the horrible conditions in the Dallas jail, there are always a few comments on the lines of "Don't break the law, and you won't go to jail!" I wonder what these people would say to the 500 people arrested in these cases?

I'll update as the story progresses.

Me.

The Kaufman County bar met today and held officer elections. The results are in. No recount needed.

President- Tracy Booker
Vice President- Me
Treasurer- Lisa Gent
Secretary- Keena Greyling

One of the first goals of the Booker administration is to set up a website. We are also seeking to have CLE at every bar lunch meeting, and upgrade the law library.

If you are a CLE speaker and want to appear before the Kaufman Bar please email me.

Texas has some of our nation's most outdated marijuana laws. Possession of any usable amount of pot is a Class B misdemeanor that carries a sentence of up to 6 months in jail, and a $2,000 fine. In reality most misdemeanor pot defendants get probation. However, Texas makes no distinction between recreational and medicinal pot smokers. All marijuana consumers are criminals in Texas.

I have witnessed the prosecution of the infirm for marijuana possession. It is a horrible practice that degrades our justice system. If prosecutors will not use their discretion to dismiss cases against the sick, then Texas must join the 14 other states that allow the medical use of marijuana.

To that end House Bill 164 was submitted last week. The text of the bill can be viewed here. Notice our state's peculiar spelling of "marihuana."

164 would create an affirmative defense to marijuana possession. MM patients would need to show that a doctor recommended marijuana use. If so, patients could avoid conviction, probation, and further incarceration. 164 would still allow the arrest of MM patients, so drug warriors can feel good about that.

From HB 164-

It is an affirmative defense to prosecution under Subsection (a) that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.

It is time Texans acknowledged that medical marijuana patients deserve compassion and protection, not prosecution.

Thanks to the Marijuana Policy Project for highlighting this important piece of legislation.

A Dallas Morning News story lays out the simple arithmetic of wrongful convictions. Lack of discovery for defendants plus prosecutors who hide Brady material= Wrongful conviction.

From DMN

Antrone Lynelle Johnson twice was convicted of sexual assault as a high school student, earning him a life sentence.

Mr. Johnson, 31, contends that both cases from the mid-1990s were built on lies and prosecutorial misconduct. If a judge agrees, he could be set free as early as Monday.

In one of the cases, a girl told the prosecutor that Mr. Johnson did not rape her. In the other, the girl gave conflicting statements about whether she had sex with him.

Mr. Johnson and his attorneys were not told until this year about either of the girls' comments – a violation of the law.

The Dallas County district attorney's office agrees that Mr. Johnson's first conviction – and life sentence – should be overturned. Mr. Johnson has already served a five-year sentence in the second case.

No DNA testing was done in either case.

The "victims" conflicting statements were never made available to the defense. Theoretically, every prosecutor is required to disclose exculpatory evidence, known as Brady material, to the defense.

In reality, defendants have no way to enforce this right. Texas defendants have very little right to discovery. Parties in a car wreck, or a divorce case in Texas, have a much greater right to discovery than criminal defendants.

For example, police reports do not have to be turned over to the defendant. Grand jury testimony can also be withheld. That is why Brady violations are nefarious. When a prosecutor purposefully denies Brady material to a defendant, the defendant may NEVER learn about this evidence. Ergo, innocent defendants may never be freed, or learn of the evidence that could free them.

Instead of forcing defendant to rely on the altruism of prosecutors who want to convict them, Texas should require all information in possession of the state be turned over to the defense. There is no legitimate reason for the State to hide evidence. The integrity of our system in compromised by each wrongful conviction.

An article in the Dallas Morning News today highlights the stringent parole conditions for sex offenders. In Texas, most parolees for sex offenses are required to comply with Condition X.

What is condition X?
The most intense regulation of nearly every aspect of the parolee's life.

From the DMN story-

Condition X determines the minutiae of their daily lives – whether they can visit a school or attend church; whether they can live with their families or in an apartment with a swimming pool; whether they can access the Internet, work at a convenience store, even whom they can date or marry.

Who cares about sex offenders?
Not all sex offenders represent the same risk to the public. Under Texas law a 20 year man who has consensual sex with a 16 year and a man who molests a 6 year old child are both registered sex offenders. Condition X is being applied to nearly all sex offenders regardless of risk to the public.

The result is that low or no risk sex offenders end up going back to prison because they can not handle the intense supervision. This leaves less prison space and parole resources for the high risk parolees. Criminal justice, jail space, and parole supervision are a limited resource. Wasting these resources may make us feel "tough on crime", but it doesn't make the public safer.

Due Process Problems
Another problem with Condition X is that parolees have no right to challenge the implementation of these conditions. The parole board meets without the defendant. Thankfully, recent court decisions are causing the parole board to reconsider who Condition X should, and shouldn't apply to.

From DMN-

It doesn't take much to require the sweeping restrictions of Condition X – just a majority vote of a three-person panel from the Texas Board of Pardons and Paroles. No face-to-face hearing is held before the vote. Instead, each member individually reviews a "parole packet" with information from an institutional parole officer and prison officials, and any supporting material from the inmate's friends and family.

The system gives "someone who is getting out on parole with sex offense stuff less due process than someone who is having their driver's license suspended," said Mr. Gladden, whose business card bears a picture of the Revolutionary War-era "Don't Tread on Me" flag.

Mr. Gladden and Mr. Habern are challenging that procedure in Judge Sparks' court.

When board members consider putting a convict under Condition X, the inmate doesn't know what evidence is presented against him and has no opportunity to respond. He can't even be sure panel members have read his file, Judge Sparks noted.

A parole division employee testified in one case that board members spend an average of 10 to 30 minutes reviewing materials in each case.

Finally, the blogging authority on Texas criminal justice Scott Henson offers his take on Condition X.

A TDCAA message board post led me to the National Sobriety Testing Resource Center, www.sobrietytesting.org.

What is the NSTRC? From their website

Welcome to the National Sobriety Testing Resource Center (NSTRC). The purpose of the Center is to provide a comprehensive source of information regarding standardized field sobriety testing, training and certification for authorized and active law enforcement practitioners and instructors. The NSTRC also provides access to the SFST Training Management System, a voluntary, state oriented practitioner and trainer database. The NSTRC is a cooperative effort of the National Highway Traffic Safety Administration (NHTSA) of the US Department of Transportation and the International Association of Directors of Law Enforcement Standards and Training (IADLEST).

Sounds great. I love learning about field sobriety tests. It seems tax dollars are being used on this project so the public, even defense attorneys, should have access to this data. Right?

Wrong.

This system contains confidential and privileged information that is intended only for use by individuals who have received the permission of the Program Director to access this system. If you have not been granted authority by the Program Director, then you are hereby notified that any access, disclosure, dissemination, copying or distribution of the information contained herein is strictly prohibited. Please treat the contents of this site as LAW ENFORCEMENT SENSITIVE AND FOR OFFICIAL USE ONLY. Further distribution of this information is restricted to law enforcement agencies. Any and all persons or organizations violating distribution restrictions will be prohibited from accessing this system.

I'm supposed to believe that this field sobriety test information is so important, that only law enforcement can view it? I can't think of any legitimate reason to keep this information from the public. This isn't counter terrorism, it's DWI enforcement.

Naturally, I sent an email to the Program Director asking for access to the database, and for their public information officer. Then I sent an email to Texas DPS asking for any records they have on this project.

What top secret field sobriety test information is being kept from the public?... Stay tuned to find out.

Texas appellate courts have a longstanding tradition of throwing out issues on appeal because the defense didn't object correctly at trial. The law is- to raise an issue on appeal you must specifically object to that issue at trial.

It's a logical fallacy to believe that a defendant is intentionally waiving an error at trial because his attorney doesn't make the perfect objection. However, that is the law.

That brings us to the case of the day- Unique Elmore vs. State.

Unique Elmore was charged with multiple drug offenses including cocaine possession. Texas has a law that requires the State to provide the defendant 30 days notice before going to trial on multiple drug offenses. The idea is to let the defendant be tried on each drug offense seperately. Otherwise the jury could be negatively influenced by the multiple charges.

At trial Elmore's attorney objected to trying multiple drug cases at once. Here is the objection by defense counsel.

The Defendant objects to being tried for more than one case at one time. He is entitled to be tried for his alleged involvement in the crimes alleged in the three indictments separately. To try them together is to invite the jury to convict him for being a criminal generally rather than for his guilt or innocence of the offense with which he's charged, so we would ask that the court proceed with one of the three cases, any one is fine with us, and defer the trial of the other two for a later time.

Now the defendant wants to appeal the judge's decision to overrule this objection.

You are the appellate judge. How would you rule?

A. New Trial- The judge violated the defendant's right to have seperate trials.
B. Harmless Error- The defendant wasn't harmed by the error so no reversal. No harm, no foul.
C. No Appeal For You! The defense attorney didn't object the right way. That objection, was really a waiver.

If you guessed C you're right. The court ruled that the defendant couldn't even appeal the issue because the defense attorney didn't object the right way.

From the court's decision.

In this case, appellant's objection at trial was pursuant to section 481.132(e), requiring separate trials due to prejudice from a joinder of offenses. Appellant's issue on appeal, however, is misjoinder of offenses due to lack of the notice required by section 481.132(b). Because appellant's issue on appeal does not comport with his objection at trial, we conclude he has not preserved error. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (defendant may waive lack of notice of intent to join offenses under Texas Penal Code section 3.02(b) by not objecting).

I am starting work on a new open records project for the Texas Criminal Defense Lawyers Association. Texas already has many individual defense lawyers doing some great open records work. However, these records are not easily shared with other defense attorneys. Ergo, the benefits of these records are not reaching the maximum number of attorneys/defendants.

A central database of open records PDF files seems long overdue. I am going to the December TCDLA executive committee meeting in Denton to pitch this project.

I want to start with Intoxiylzer records. I am seeking maintenance, failure, repair records for all counties in Texas. I'm also seeking TCLEOSE records, training manuals etc.

Are you a criminal defense attorney with open records experience? Are you a law student interested in criminal defense or open government? Do you have a closet full of records to share? Please contact me via email.

No one plans on getting arrested in Kaufman County. If you do, be sure and check out this recommended bond schedule for Kaufman County.

Kaufman County Recommended Bond Schedule

Are you considering possessing marijuana in Forney? If you get caught and have no prior convictions your recommend bond amount will be $750.

Plan on cornering the drug market in Terrell? A first degree drug charge will mean a bond of at least $50,000.

Finally, don't plan on violating your felony probation with a new criminal offense. The chart suggests that no bond be set in that situation.

This is just a suggested schedule. Judges who set bail are free to decide each case individually.

Austin's Scott Henson is the author of Texas' leading criminal justice blog, Grits For Breakfast.
Scott Henson is also white. Scott has a two year old granddaughter who is black.

Yesterday, while walking his granddaughter to a park in Austin, Scott was interrogated, detained, and harassed by no less than 3 officer in 3 separate patrol cars. The officers demanded to know what Scott was doing and where he was going.

Scott's crime? Someone called 911 to report an white man walking with a young black child.

From GFB-

Two blocks from home, an Austin police officer pulled up and, to my surprise, got out and announced she was there to question me. Someone had called 911, she said, to report a suspicious looking white man walking down the street holding hands with a black toddler. (I could tell where this line of questioning was headed.) She said this as though it were the most natural thing in the world for police to investigate, as though my race and Ty's, in and of itself, was reason enough to stop and question me...

Not wanting to violate the failure to identify statute, I gave her my name, address and birthdate but refused to answer any other questions. ("I'm going to write down that you were noncooperative," she warned ominously, as though admonishing an elementary school student that some infraction might go on their permanent record. "Oh no, not that," I thought to myself.)

I asked if we could leave, but the officer kept me there demanding answers. "Someone complained," she declared, "we have to follow up." "Like hell you do," I told her, "not when you don't have reasonable suspicion to think I did anything wrong."

To my astonishment, while we were talking, another officer pulled up in response to the 911 call, this one a tall, older, thick-chested fellow with graying hair who felt the need to demonstrate his dominance. I replied to his "I'm in charge here" bluster by again asking, "Am I free to go?" "No you are not," he insisted, "not until I'm finished," and continued his pointless monologue.

Meanwhile, a THIRD police car pulled up to the scene. By then I was getting mad. Austin police had already disrupted my day significantly because they're supposedly out hunting armed killers, but they've got enough extra cops lollygagging around to send THREE squad cars to investigate me for Babysitting While White?

It's hard to define exactly what the greater tragedy is in this story. That an Austinite was so disturbed by this activity as to call 911. Or that three police officers, using their judgment and training,decided to investigate this activity.

Here is Mr. Henson's post on the subject. For all the progress our country has made with race relations, we still have a long way to go.

Nothing excites Texans like football (especially Red Raider football). Nothing excites the Texas legislature like creating a new criminal law for every perceived societal problem. Combine the two and you get...

32.441. ILLEGAL RECRUITMENT OF AN ATHLETE.

(a) A person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics.

This "crime" ranges from a Class C misdemeanor (for a benefit less than $20) to a first degree 5-99 years felony (for over $200,000).

I find more than a small amount of hypocrisy in the law. Unlike baseball, we force college football players into an amateur minor league system. College football players have amazing skills that generate millions in revenue for their schools, yet the athletes see little of that. The last big 12 TV contract was for $500 million dollars. BCS bowl games pay each college $17.5 million. The "governing body", in this case the NCAA, is not sharing that money with the players. And if boosters, fans, or alumni voluntarily pay we make that a crime.

I'm sure proponents of this law will argue for sanctity of amateur athletics. But do really need another criminal law just to protect the NCAA minor league football monopoly?

A new case from COCA shows why it's best not to write down your feelings in jail. Especially if those feelings are violent rap lyrics, and you are on trial for murder.

Such were the facts from Mendoza vs. State, which was handed down today. The defendant was found guilty of murder. During punishment the State offered numerous rap lyrics found in the defendant's cell. The issue was whether these lyrics were relevant, and if the State could prove the defendant wrote them.

Here is a sampling of what the jurors read-

Fuck the world & Fuck the reasons time to release the inner DEMOND
Give me a screwdriver so I can dig in your temple,
Bust your face with a crow bar like I’m poppin a pimple.
Plain & simple I lose my temper its the end of your time;
I’ve been dreamin to be dead; cause all the pain & heavy strain fucked up my mind
Every time I take a breath it’s like I’m makin a death wish
I’m having memories of nightmares; cuz there were plenty of them.

The lesson from COCA- anything you say can be used against you in a punishment hearing, including rap lyrics.

Texas has bifurcated trials, the first stage is guilt innocence. If a defendant is found guilty a seperate trial is held on punishment. The issues at punishment are much broader than guilt/innocence. Therefore, a wider range of evidence will be admissible. These rap lyrics would never get in during guilt/innocence. COCA held they were relevant to punishment in that they showed the defendant was a continuing threat for society.

Barack Obama is our next President. Like the outgoing President, Mr. Obama is an ex pot smoker. America's current pot smokers will be glad to find out that our nation's voters supported common sense marijuana form last night. With help from the Marijuana Policy Project, here is an overview of three marijuana ballot initiatives that passed last night.

Massachusetts Question 2: Remove the threat of arrest or jail for possessing an ounce or less of marijuana, replacing it with a $100 fine, which could be paid through the mail without lawyers or court appearances, just like a speeding ticket.

It's too bad Texans can't get a similar law passed. Court time, police time, prosecutor time, defense attorney time are wasted on simple pot possession cases. In my experience 95% of marijuana prosecutions are for less than 2oz (class B).

Michigan Proposal 1: Permit terminally and seriously ill patients to use medical marijuana with their doctors' approval.

Arresting patients is not the sign of a compassionate society or a limited government. I've represented MM patients and there is no justice in their prosecution.

Fayetteville Arkansas- Require adult marijuana possession laws to be the lowest priority for local law enforcement.

If the police can't prioritize their time and effort then the voters must legislate common sense for them. The voters in Fayetteville sent a clear message- quit wasting time with adult pot smokers and go solve some real crime. This would be a great law for Dallas PD (which has pathetic 6% crime clearance rate for burglary.)

Any defense attorney will have some of his motions denied. I have the option to appeal these decisions to a higher court. Often, my client can't afford such a measure. However, it never occurred to me to simply seek a new hearing in front of a defense friendly judge.

Here is a recent quote from the TDCAA message board. Freudian slip maybe? I'm hoping it's a joke, or a typo.

My cops seized items at a drug dealers house and then had a property hearing under Tex. Code Crim. Proc. art. 18.16 (2007) to see if they should be returned to the defendant. Well the judge decided to return the property but my officers want to let a less impartial judge decide. can we appeal? what do we do? got any authority? thanks.

Finally, an 18.16 hearing isn't a forfeiture hearing. It's where the judge determines if property has to be returned unless there is a reason to believe the property is stolen.

From the Code of Criminal Procedure.

Art. 18.16. PREVENTING CONSEQUENCES OF THEFT.

Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.

Steven Nicely is one of the top drug dog experts in the country. His testimony led a recent suppression victory in Arizona. The judge ruled that the State's drug dog was unreliable, despite the fact that the drug dog had all the standard training and certification. I asked Steven for a Q&A.

1. Why did the judge rule that the drug dog was not reliable?

There were different reasons the main one was the certification process. They put a dog on the street that responded incorrectly when only six targets had been placed. Also, those responsible for the certification process did not take steps to correct the problem.

Another reason the dog had a 100% probability at the time of this case it would respond and a 42% probability that drugs would be found. The judge also agreed the handler was cueing the dog when he believed drugs were present.

2. The State offered numerous training records for this dog, some showing a perfect record for drug detection. Why did the court reject this dog's certification/training records?

The main reason for this was there really was no correlation between training and testing, and real world.

Most of the training the handler did it by himself. One time when he did train with someone else the dog again responded incorrectly. I explained to the court the records carried no weight because of those facts. When reviewing training records if it is not indicated if the handler knew or did not know the location of the training aids or if anything was or was not present it cannot support the team.

3. What should defense lawyers look for when we are watching a K9 search video?

In this case there was no video but there are so many subtle movements it is hard to describe. The main thing is this if the team goes around the vehicle more than once in all probability the dog will be cued.

4. There seemed to be a lot of discussion in the court's opinion about residual odor. What's that?

Residual odors is odor that lingers after the substance has been removed. Many handlers and trainers use it as an excuse.

5. Anything else?

What was really interesting is that Mr. David Reaver of Alderhorst International who on his CV claimed to be an internationally recognized expert trained and certified this team. He wrote a report to rebut my original report but would not come to court to defend or support his report. The Az. DPS sent their head trainer to testify for the state. What I am beginning to see is when the teams are challenged on behavior science issues they cannot meet the challenge.