Dallas Criminal Defense Lawyer Blog

Celebrate the new year with the DWI Security Theater production of No Refusal. Of course by "no refusal" what is really meant is that the police are going to punish you for not taking their breath test, exercising your right to remain silent and not produce evidence, and exercising your right to not be held down while police goons steal your blood.

"No refusal" sounds better to the public than "forced blood draw program". PR points for the police. Here the story from Bell County.

“We want everyone in Bell County to have a great New Year’s holiday,” Sheriff Dan Smith said. “Our intent is to protect the public and have an accident and fatality free holiday.”

People suspected of driving while intoxicated are generally asked to submit to a breath test that measures the person’s blood-alcohol content. Those who refuse the test may have their licenses suspended but they also leave prosecutors with one less piece of evidence to use against them.

“We’re not going to allow refusals,” Smith said....

“We’ll be out in force,” said Mike Gentry, police chief in Harker Heights. “Drinking and driving is unacceptable and highly dangerous conduct.”

This is why police chiefs and sheriffs can't practice law. First, a refusal itself doesn't mean the police can get a warrant. They must have probable cause of DWI. Simply not allowing refusals isn't a legitimate goal of law enforcement.

Second, to correct Mr. Gentry, drinking and driving is NOT illegal in Texas. He may consider it unacceptable and highly dangerous (as I consider home invasion SWAT raids), but he shouldn't be arresting for it. Mr. Gentry has been exposed to so much TxDot propaganda he has forgotten (or never knew) what the law is. DWI requires intoxication, not just drinking.

But wait, Bell County isn't alone, here is the story from Smith county.

Upon the arrest of a suspected drunken driver, he or she will be asked if they would submit to blow into a breath-test machine or take a blood test. If the driver refuses and says 'no,' officers will obtain an immediate search warrant signed by a judge on call to have blood drawn by a nurse on staff at the Smith County Jail," said Don Martin, Tyler Police public information officer.

Bobby Mims, public affairs officer for the Smith County Criminal Defense Lawyers Association, said Monday that the group met and came up with an appropriate response to the "No Refusal" weekend announced by Tyler police.

He said defense attorneys are not telling the public to refuse the test but want the public, as well as law enforcement officers and judges, to know that sufficient probable cause based on evidence is needed for a search warrant and that just refusing a breath test is not sufficient.

He said just because it is a "No Refusal" weekend, doesn't mean people don't have a defense.

"You do have a defense, and we're going to provide it to our clients," Mims said.

Nice try Mr. Martin. Notice how the police believe that upon a refusal they have the automatic right to a search warrant. Probable cause to arrest never occurs to them. We don't spend a lot of time teaching police the value or nuances of the 4th, 5th, or 6th amendments. So it's not suprising that they have no working knowledge of your rights.

Bobby Mims cuts through the empty rhetoric to inform the public that the law can still protect them from the best intentions of DWI zealots.

Finally, have a safe and enjoyable New Years. Call a cab, and yes, don't drink and drive unless you want to spend time with DWI vampires; thirsting for your blood while ignorant of your rights.

More fun with my new copy of the Highway Patrol Operations Manual. I blogged earlier about how to handle a DPS/police request for a consent search during a traffic stop.

Here is what DPS has to say on the subject. This is what they are supposed to be doing during a traffic stop.

02.05.00 VIOLATOR INTERVIEW 05 .01 Troopers will follow the seven-step violator interview unless circumstances exist that make the use extraneous or nonapplicable. The steps will be used in the following order : 1 . Greeting and identification of the agency 2. Statement of violation committed 3. Identification of driver and check of conditions of violator and vehicle 4 . Statement of action to be taken 5 . Take action stated 6 . Explain what violator must do 7 . Leave

Hmmmm..... Some important steps are missing. Having viewed more than a few DPS traffic stops let me offer a more realistic "violator interview" protocol.

Violator Interview
1. Only stop vehicles you believe may have drugs in them. Try not to racially profile, but profile every other way you can.
2. After the stop think of a reason to justify said stop. If all else fails, allege the license plate light was not bright enough, or speeding.
3. Run the DL license and pray for an outstanding ticket warrant. If a warrant comes back arrest driver and start digging through the car!
4. If no warrant, pull the driver and passengers out of the car. Get into "good cop" character and ask if they have any hand grenades, dead bodies or drugs in car. Ignore yes answers on dead bodies or grenades, ask about drugs again. Remember, there is no War on Dead Bodies, or War on Hand Grenades. This is a drug war and you are the front line to stop consenting adults from using, selling, or possessing drugs! Finally, Mirandize no one, lest they realize they have the right to not answer these questions.
5. No confession? Ask for consent to search. Threaten to call out drug dog.
6. If permission is denied, ask again, but louder.
7. No consent? Consider writing a ticket, calling out the trained-to-alert drug dog, or arresting someone for no seat belt (Lago Vista).
8. Write a ticket, arrest, and/or search.

Today I received my new 841 page DPS general operations manual on CD. I thought I knew most of DPS' crime investigation techniques. This section on hypnosis took me by surprise.

25 .05 .00 GENERAL The use of hypnosis as an investigative tool for law enforcement is a fairly recent development. Although it was used for this purpose at various times, there was no concentrated effort to develop it as a practicable working tool until about 1970 when the use of hypnosis in several major cases by the Los Angeles Police Department caused a number of other police agencies to examine the possibility of such use . Currently many major police agencies are using hypnosis to some degree in criminal cases.

INVESTIGATIVE HYPNOSIS
05 .02 These guidelines are designed to outline the criteria to be
used in the selection and training of DPS personnel to use hypnosis
and the use of hypnosis by Department personnel .

There are further sections on how to run the hypnosis session, and who not to hypnotize (those with health conditions, and the defendant), and the various hypnotism related reports that are required. I will probably request the Hypnosis Oversight and Training Committee's reports to see if this program is actually in use.

My lay opinion is that hypnosis is quackery. However, if DPS officers are being instructed to consider hypnotizing witnesses I'll have to keep my cynicism in check and do some research.

Assuming hypnosis is real couldn't the hypnotist DPS officer influence the outcome. Isn't that the point of hypnosis? To make people quit smoking, lose weight, or otherwise influence their behavior?

Finally, the rule of evidence require that witnesses can only testify if they have "personal knowledge." Hypnosis would seem to stretch the limits of that definition to absurdity.

What do you think? Is this a valid crime fighting tool? Should we hypnotize witnesses?

Texas criminal justice system can't keep up with Austin's greed
Grits opined on the failure of our criminal justice system as a revenue collection agency. The Texas criminal justice system has billed out but failed to collect $1 billion in fines and fees last year.

As a front line observer of this taxation/extortion scheme let me offer some insight. The criminal justice system in Texas is built on a foundation of government greed and bloated budgets. It's a cheap political ploy to say that "drunk drivers" should pay more.

How does that work out in the court room? Let's take a closer look at DWI cases, and their financial impact on defendants.

Over the last 24 months court costs for DWI cases have risen from $250 to over $400 per case. The fantasy land budget of a few years ago invented a new draconian $1,000 a year surcharge for DWI convicts (which should be unconstitutional). Not to mention the fine (usually $500 to $1,000) and $50 a month in probation fees. A typical DWI defendant pays thousands to the State. Not murderers, or rapists, or even drug dealers.

These policies are always sold as "drunk drivers" should pay for ______. The reality is that many drivers who are convicted aren't drunk. Rather they meet the State's arbitrary intoxication standard. Lest we forget George Bush and Dick Cheney are DWI convicts. These people aren't sub human. Why should we destroy them financially?

Beyond DWI our criminal justice system places such an unrealistic financial burden on defendants that many never pay. Hence the $1B shortfall for 2008. Beyond the State losing money many defendants will have their probation revoked for failure to pay (there are defenses for failing to pay, but that doesn't prevent the defendant from being incarcerated on an MTR).

Will Obama decriminalize pot?
NORML and Esquire are reporting that Obama may legalize or at least decriminalize marijuana. The story is more wishful thinking than actual news from the Obama administration. I would be more exitied except Obama's cabinet (and VP) picks so far include a disturbing number of drug war hawks.

The idea behind this story is that Obama is smart, and he represents change. Intelligence and supporting the arrest of adult pot smokers, are mutually exclusive. Finally, a fair number of big Democrat donors, (including the GOP/ONDCP scapegoat George Soros), reject the drug war.

As a NORML legal committee member I will be following this closely. I proudly defend marijuana consumers. I would be proud of the next administration if I didn't have to.

ER doctors universally believe in police brutality
I've had clients tell me that they were subject to police brutality. In these situations the resulting criminal charges usually include resisting arrest. On that note, here is a disturbing statistic-

In a survey of a random sample of U.S. emergency physicians, virtually all said they believed that law enforcement officers use excessive force to arrest and detain suspects.
The sample included 315 respondents. While 99.8 percent believed excessive force is used, almost as many (97.8 percent) reported that they had managed cases that they suspected or that the patient stated had involved excessive use of force by law enforcement officers.

We already require doctors to report child abuse. Texas needs a similar law requiring doctors to report police abuse.

From the Dallas Morning News

AUSTIN — All available Texas troopers will be on patrol over the holidays at a time when drinking and driving usually go up.

The Department of Public Safety on Monday said troopers also will concentrate on speeders and seat belt violators.

DPS says increased enforcement will be in effect Wednesday through Sunday, covering the Christmas period, and then Dec. 31 and New Year's Day.

Troopers during the same periods one year ago issued about 28,000 citations and 14,000 warnings. Most of the tickets were for speeding, approximately 19,600, while nearly 3,400 tickets were for seat belt violations. DPS troopers also made 919 arrests for driving while intoxicated.

The Department of Public Safety has a problem. How can they sell a statewide motorist harassment initiative slated for Xmas? How does tyranny always sell itself to the public? Fear.

DPS is conducting a statewide crackdown on speeders and seat belt violators. Instead of being honest about their goals (taxation/government revenue) they toss out the drunk driving boogeyman to stifle dissent. DPS' message to the public- you want us to ticket you for speeding, otherwise the drunk drivers win.

Drunk driving enforcement is lipstick on this traffic taxation pig. The comment section shows that DMN readers seem to have caught on to the scam.

Hat tip to the TDCAA website for highlighting this recent COCA DWI opinion. In a remarkable decision the Court of Criminal Appeals actually upheld the rights of a DWI defendant. Unbelievable.

Case-Roy Bob Bartlett vs. The State of Texas

Facts- Roy Bob was charged with DWI. Roy Bob refused a breath test. The State wanted the jury charge to include language that refusing a breath test is evidence of guilt. The jury charge addressed the refusal and what the jury could think about said refusal.

Problem 1- Judges are not allowed to comment on the evidence. Juries decide what the facts are. You can't tell the jury what the facts are, or even what facts are important, in the jury charge.

Problem 2- The prosecution in this case was flat wrong. The law creates no presumption that a breath test refusal is evidence of guilt. That may be what most prosecutors and cops think, but it's not the law in Texas.

What is the law? Transportation Code section 724.061 allows evidence of a refusal to be introduced in a DWI trial. It doesn't say what the refusal means.

Holding- The case is sent back for a "harm analysis". Translation- sure this jury charge was illegal, but maybe we can still save this conviction by calling said error "harmless".

From the opinion-

Section 724.061 of the Transportation Code does not establish a legally recognized presumption of consciousness of guilt that follows from the fact of refusal. We are aware of no other statutory language that expressly authorizes the jury to presume a consciousness of guilt from the refusal to take a breath test. In the absence of such a legal presumption, it is improper for the trial court to instruct the jury with respect to inferences that may or may not be drawn from evidentiary facts to ultimate or elemental facts. Because a presumption of consciousness of guilt from the refusal to submit to a breath test "is not an explicit legal tool for the jury[,]" (22) it was error for the trial court to have instructed the jury with respect to available inferences that may derive from that evidence.

Finally, the admission of the appellant's refusal to take the breath test was not contingent on any other fact which a jury is charged by law to decide. Indeed, the law typically assigns to the judge, not the jury, the role of determining the admissibility of evidence. (23) Absent some express legal provision that does assign some role to the jury in the determination of what evidence may be considered, such as Article 38.22, Section 6, or Article 38.23(a) of the Code of Criminal Procedure, (24) to simply instruct the jury that certain evidence may be considered serves no legitimate purpose and needlessly calls its attention to that particular evidence to the derogation of all other evidence in the case. On its face, Section 724.061 of the Transportation Code does not involve the jury in the decision whether evidence of the refusal to take a breath test may be admitted for its consideration, and there was no call for the trial court in this case to give a jury instruction on that account.

Having a law blog guarantees a steady stream of email questions. It has come to my attention that many of you are pursuing a certain career, and worried about the effect of a criminal charge.

Readers will send me information on some old criminal case in which they took a "great" plea offer and were told (erroneously) that a deferred or reduced charge would not appear on their record or prevent them from entering a certain field.

Potential cops, law students, firemen, and teachers, have contacted me with similar concerns. Here are the three most common questions.

1. What is on my record?
2. Can I have this removed from my record?
3. Will this keep me from getting hired/licensed/accepted?

1. Most people would be surprised to know there is no one official "record" for you. The police and prosecutors of Texas utilitize the National Crime Information Center. Private employers typically use background search companies like KnowX.com, public data.com, or intellius.com. Finally, DPS keeps a database of criminal records, and the county you were convicted in should have your case as the clerk's office.

What is on your record depends on which one is being looked at. In my experience it may not matter. You will probably be required to disclose this information yourself when applying. My law school application required all conviction/criminal charges to be disclosed.

2. Can the charge be removed, expunged, non disclosed or otherwise kept from view?

Maybe, maybe not. Here are the rules for Expunction.

Here are the rules for non disclosure.

3. This is area I know the least about, whether or not that old criminal case will prevent you from getting a license, or job, or into grad school. The only professional license I am familiar with is my own. I knew law students who had a DWI in their past and still were allowed to practice law.

I advise asking someone in the field you are considering, calling the employer, and checking the licensing requirements (for Texas) here- http://www.state.tx.us/portal/tol/en/gov/9

I'm only surprised MADD, TxDot, or DPS didn't think of this first. We already use the fake DWI death/car crash and the fake DWI arrest to scare students. How long until we threaten them with eternal damnation?

First, a capital murder primer. Capital murder cases are those in which the death penalty is available, but not required. If the State waives the death penalty and a defendant is convicted of capital murder, the sentence is automatic life in prison.

On capital appeals it too often seems that the goal is to save the conviction and find/make law to effect that purpose. That's why this decision was so remarkable. Roberts vs. State involves a bad person, who did a bad thing, has no friends or connections politically, and no reason to expect sympathy from our highest criminal court. All Roberts had is dedicated defense lawyers, including an assistant Dallas Public Defender who represented him in the Court of Criminal Appeals, Chris Souza. Mr. Souza wrote an excellent brief with a simple request- uphold the law.

Facts- Roberts shot and killed a woman in her apartment. The woman was pregnant with an embryo. The embryo died. The state's medical witness testified that you could not tell this woman was pregnant by looking at her. The defendant did not know the woman was pregnant. Roberts was convicted of capital murder for the intentional killing of two people.

Issue- There are many ways to commit capital murder. In this case capital murder required, inter alia, the intentional killing of two people. The problem, Robert's didn't know the other person (embryo) existed.

What I expected- An "intent follows the bullet"/assumption of risk harmless error holding. That is, by shooting one person intentionally then you intend to kill whatever persons are inside that person. Or this error doesn't matter because the defendant is a piece of shit.

The actual holding- The law means what it says. You must actually intend to kill two people. This can't be capital murder. The case is sent back to the trial court for sentencing as a regular non-capital murder with a range of punishment 5-99 years. Probation, even deferred is available, but not likely.

What this doesn't mean- That Roberts is let go, or freed, or found not guilty. The court simply reformed the judgment from capital murder, to murder and reset the case for sentencing.

Why should you care? The law was followed. The law applies equally to everyone, even the least/worst among us.

Deferred adjudication is the cause of a lot of confusion among defendants and attorneys. The main reason- deferred cases (except traffic tickets) can NOT be expunged. That pot case you took deferred probation on 5 years ago.... still on your record. Luckily, there are Texans dedicated to reforming this system and giving deserving defendants a clean record.

Here is an Interview with Rob Sandifer of the Texas Association for Justice and Legal Reform.

(1) Name/Background:
My name is Rob Sandifer I am the co-founder and director of a Dallas based, statewide organization of friends/volunteers who are working with our elected state officials to pass proposed legislation into law which will remove the bar to expunction of deferred adjudication criminal records found in TCC 55.01

(2) What changes do you want made to deferred adjudication?
I approach this question from two angles (A) criminal records expunction reform AND (B) reviewing the appropriateness of awarding deferred adjudication for certain offense classifications. For (A), the change that is fair and necessary is simple: Remove the bar to expunction found in TCC 55.01. For (B), I personally feel that certain types of offenses should not even be statuorially allowed (murder, kidnapping, etc, etc) and the laws should be changed to reflect that.

(3) Why should Texans care about deferred adjudication reform? Texans, by and large, should care about deferred adjudication reform for many reasons; a few of them I will mention here. It is a fact that nowadays, most Texans know of someone who has been placed on deferred adjudication probation. Texas Department of Public Safety statistics confirmed in 2005 that there are currently approximately 2 million Texas citizens whom, at one time or another, have been placed on community supervision. Many of these people continually have a very difficult time finding employment, housing, etc as a direct result of having a criminal record associated with their deferred adjudication. This, in and of itself should be of a major concern to ALL Texans, whether or not they have been personally impacted by deferred adjudication. Having a large segment of the population unemployed results in a chronic loss of production and human capital and the only way many of these people can survive is to resort to stealing and other dishonest means of making a living in order to feed themselves and their families. The main reason that Texans should be concerned about deferred adjudication reform is that one day, they themselves may be impacted by it in a very personal and devastating way!

(4) Anything else?
Just one: Citizens of our state and country have a responsibility and duty to hold their public officials accountable for their actions. If we as free citizens abdicate that responsibility, then we have absolutely no right nor reason to complain about the inevitable consequences; passing of bad laws, corruption, etc. I practice what I preach. For a number of years, I have been at the forefront of a statewide movement to reform the expunction laws and I will continue to do so until expunction reform is the law of the land.

I'm often surprised by the honesty of casual drug users. Too often they will confess their criminal indiscretions to the police. For example, many will consent to a police search of their car or volunteer that a joint is in a purse or glove box.

Why would anyone volunteer incriminating information? While not an exhaustive list, here are two reasons.

1. Fear/Guilt. When a cop pulls over a drug user the adrenaline of the situation leads many to confess to get the confrontation over with. They want the cop to quit their investigation. They hate the confrontation and uncertainty.

2. Cool Cop/De Minimis Arguments- A very misguided hope that their cop will be "cool" and let the suspect go. Related to the "I just had a joint in my car, I thought I would get a warning", de minimis justification.

Most people expecting a cool cop have a story to tell about another cop who was cool, and let them or a friend go. A word to the public- your cop is not cool.

Most officers, especially traffic enforcement (DPS etc) live for drug searches. If DWI is the capital murder of traffic stops, then finding drugs is like solving a bank robbery. Cops love finding drugs. Watching their excitement on film leads me to believe some get high on busting drug users.

Don't consent to a search or volunteer information about contraband. Consider, instead, asking for an attorney or refusing a consent search.

I know you are nervous. I know that you think the recreational use of drugs is not a reason to arrest someone. But cops don't think like that. The love arresting you, and they aren't cool.

Most readers are aware that I had an earlier career as a prosecutor. My first blog, I Was The State, was named after this experience. To summarize- I spent two years prosecuting misdemeanor cases in two Texas counties (Bowie and Kaufman).

Did prosecuting cases make me a better defense lawyer?
I used to believe that my time spent as an ADA was valuable for my defense clients. Defending People's (by Houston Criminal Defense Lawyer Mark Bennett) frequent criticism of ex-prosecutor advertising and experience led me to question my assumption. Mark has several good posts on the subject.
Here is a Bennett quote on former ADAs-

The idea that criminal defense trial experience and prosecution trial experience are somehow interchangeable is ludicrous. They require entirely different skill sets, states of mind, and philosophies. Saying that prosecuting people makes a lawyer better at defending people is like saying that pitching makes a player better at batting.

The longer I defend cases the more I realize that the two skill sets (prosecuting and defending criminal cases) are mutually exclusive. Prosecution can make one a better criminal attorney in general. Creating a better defense lawyer requires defense experience, inter alia.

Does my prosecution experience help my current clients? Yes, but not as much as more defense work would have. Being a prosecutor exposed me to the full time practice of criminal law early in my career. I wasn't in a position to hang my shingle right after law school.

Prosecution allowed me to work a large number of criminal cases and learn the rhythms and procedures of criminal court. To continue the baseball analogy; I was watching a lot of baseball, taking a lot of batting practice. It was misdemeanor prosecution, low risk (for me) and high volume.

Defending People
What did I have to unlearn? What skills do not translate well from prosecution to defense work?

First, case management. A misdemeanor prosecutor is running a triage unit. Lots of cases have to moved.... NOW. My first DA compared the misdemeanor docket to moving a herd of animals. Some will be eaten by lions, die of old age, etc. The important thing is to keep moving the herd forward.

That's how I viewed my bucket of misdemeanors. DWI and marijuana possession cases/convictions didn't excite me. I didn't have delusions that I was saving the world with each judgment of guilt.

That same herd attitude would make me a horrible defense lawyer. The case management I learned as a DA describes the worst of high volume criminal defense practice. If you are a criminal defense lawyer and charge a low enough fee, you can get a lot of cases.

I was looking at the Greensheet the other day and there was an ad for $200 misdemeanor plea bargains. I can't imagine what kind of defense that will buy. I don't want to find out.

Finally, I do get excited about defending DWI and marijuana cases. I enjoy a dismissal or not guilty verdict. Not just because they benefit my client. I believe the laws are wrong.

Working up a case-
As a prosecutor I could work up a case incrementally. I could review a police report and video and make a decision to file a case or not in a few minutes. If problems arose I could always dismiss it later. If it got set for trial only then did I really have to really work over the evidence and witnesses.

As a defense lawyer I have the opposite approach. I need to approach each case like it is going to trial. If I don't, my client won't get the best results. I have to call the witnesses, I have to consult with experts, I have to watch the video evidence, review the police reports, and then decide how to proceed.

Trial etc-
When I was a DA I had professional state witnesses (cops, intox experts) and my own team of investigators. There was also the feeling that the appellate courts worked to benefit the State and uphold convictions. Defense experts and theories were largely mocked and dismissed at my training seminars.

Only as a defense attorney did I learn why and how field sobriety testing is flawed, what the limitations of intoxilyzer machines were etc.

Philosophy/Attitude-
The motivation behind prosecution and defense work are different. As a prosecutor you want to believe you are making the community safer. Out of this hope was borne the classic State's closing argument- the plea for law enforcement. It's an easy story to sell jurors. Just convict this defendant and we are all safer.

As a defense attorney freedom, liberty, redemption, and forgiveness are my motivation. I can be honest about my feelings on the drug war and DWI zealotry (at least on this blog, not during closing argument). I can not only have libertarians ideals I work to save the remnants of the freedoms our country was founded on.

Final Thoughts-
I do not believe that someone who has been prosecuting serious felony cases for years can not defend a case. The possibility is there. A lifelong ADA would have a better chance than a PI/Bankruptcy lawyer.

However, only years of zealous defense advocacy can make one a better defense attorney. It's not just the procedure and penal code. It's the fundamental belief system that defines each side.

The Dallas City Council is patting itself on the back about the recent passage of a new city wide smoking ban. Our local dear leaders are so concerned with your health they want to ticket you (with a $200 fine) until you quit smoking in their bars and pool halls.

In a city with abysmally low crime clearance rates (94% of burglars go free) we can now add smoking prevention to the list of useless Dallas police activity (along with poker SWAT raids and TABC strip club undercover work).

Freedom has no chance when the city council views adults as children, and Dallas as a giant head start center. Business owners are upset and worried about the potential loss of revenue. You would be to if the broke and corrupt City of Dallas decided to run your business.

I don't smoke (occasional cigar notwithstanding). I don't like my clothes smelling like smoke. But I respect the right of adults and business owners to be left alone, free from the best intentions of moral busybodies.

SEO Spammers vs. Legit Blawgers- Round 1
The seo spam comment machines have targeted my blog. I've had at least one spam comment per day for the last week. At first, I was naive enough to think that my out of state lawyer audience had vastly increased. After all, I was getting comments from Maryland and California attorneys. A little investigation (and the fact that most attorneys don't write like 3rd graders) led to my conclusion this is all SEO spam.

If misleading advertising is wrong, why are lawyers signing up with companies that have a business model (SEO) built on deception and manipulation? I believe the heart of the problem is that most attorneys don't understand the internet, or how SEO companies operate. Most attorneys just want to pay more to get more clients- just like the phone book model. The great thing about blogging is that content is rewarded. Even a low budget blogger site can generate thousands of readers. For example, the best criminal justice blog, Grits For Breakfast, is a free blogger product. Grit's author Scott Henson didn't hire a team of pro spammers to get readers, he wrote great copy,

Hopefully, the SEO market will mature and adapt to the point that irrelevant websites built on spam links find their way into google irrelevance. Until then, I'll keep deleting this garbage.

On Attorney Fashion-
Fort Worth Criminal Defense Lawyer/Fashion Guru recently posted on proper courtroom fashion.
Shawn's Project Runway judge analysis inspired me to share this recent experience.

It was a one word attorney fashion disaster- Crocs.

A lawyer, in court, in a suit, with black crocs as shoes. Not crocodile skin boots, but real "let's go pull weeds" crocs. This is the downfall of our profession. What's next? Uggs in the wintertime? Birkenstocks in the summer?

Via the Agitator via nevergetbusted.com.
Regardless of how you view the drug war, we should all applaud efforts to rid the criminal justice system of corrupt law enforcement. That's what makes this story so significant. Until now the libertarian/anti drug war movement has been reactionary; waiting for news to happen and responding. Now those who value freedom have the tools to set up traps for the police. This should make great reality television.

From nevergetbusted.com-

It's called an informant plant. The Odessa narcotics unit illegally compelled an informant to plant drugs on Yolanda Madden. The informant testified in federal court he planted the drugs on her and he passed a polygraph confirming the same. Yolanda also passed a polygraph along with a hair follicle and urine test. Our broken criminal justice system ignored the evidence and railroaded her through court sentencing her to 8 years in prison.

Her father hired KopBusters, a new reality show produced by NeverGetBusted, whereby Barry and Candi along with their detectives set up stings across America to catch crooked Kops.

KopBusters rented a house in Odessa, Texas and began growing two small Christmas trees under a grow light similar to those used for growing marijuana. When faced with a suspected marijuana grow, the police usually use illegal FLIR cameras and/or lie on the search warrant affidavit claiming they have probable cause to raid the house. Instead of conducting a proper investigation which usually leads to no probable cause, the Kops lie on the affidavit claiming a confidential informant saw the plants and/or the police could smell marijuana coming from the suspected house.

The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster's attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster's secret mobile office nearby.

The attorney was handcuffed and later released when eleven KopBuster detectives arrived with the media in tow to question the illegal raid. The police refused to give KopBusters the search warrant affidavit which is suspected to contain the lies regarding the probable cause.

The team of eleven freedom fighters wore red "Free Yolanda" shirts as they clashed with the police demanding answers for the illegal raid and the drug plant. The police would not comment but later stated they were trying to charge KopBusters with a crime.

I've met Barry Cooper. He is one of the most interesting and entertaining personalities in marijuana reform. Whereas some view his self promotion as detrimental to his credibility, I believe he is sincere about changing our nation's obscene marijuana laws.

His Never Get Busted videos generated a lot of media coverage and presented an easy to digest media story (Ex Cop Shows How To Hide Drugs!! Story at Nine!!). Unfortunately, this undercover work is a bit more complicated and therefore has not generated as much media attention. I couldn't find a story on the Odessa newspaper's website.

Finally, without more information there's no reason to believe that there must be dishonesty or corruption behind this search. It could be old fashioned incompetence. I hope the media pays attention and stays with this story. The police can only keep this search warrant hidden for so long. Eventually, the truth has to come out.

DCDLA Christmas Party
The Dallas Criminal Defense Lawyers Association Xmas party was tonight at Pappadeux on Oak Lawn. My only complaint was that there were only two food options; fried and dessert. I pitched my open records project to more people than probably wanted to hear about it. One more time- If you are a defense lawyer with a collection of useful open records let me know. I'm working on a database of open records for TCDLA.

Happy Prohibition Day!
75 years ago our forefathers were wise enough to end the disaster of alcohol Prohibition. LEAP is celebrating, The Agitator has noted the holiday.

To celebrate I had court today for a state jail felony possession drug case. If Texas law had a monument to the drug war it would be the state jail felony.

State jail felony drug cases are used for possession less than a gram of meth, crack, etc. Years ago the lege decided we should get tough on drugs and create a special jail for small time dope cases. State jail cases carried a minimum sentence of 6 months with no possibility of parole.

Guess what happened? State jails quickly filled up with addicts and costs spiraled out of control. The lege should have accepted defeat and made these misdemeanor offenses. In a small nod to reality most state jail felony defendants today are required to be put on probation. Prosecutors are also allowed to sentence these defendants to misdemeanor punishment (county jail time, saves the state money).

I'm on an ALR win streak. My last three hearings have resulted in a victory for my client. (ALR hearings are when the state moves to suspend your license for a DWI arrest).

I know these clients appreciated not having their license suspended. However, two of the victories were dismissals because the arresting officer failed to appear. That is still a victory, but only in the short term. (The other was because the State couldn't prove my client refused to provide a specimen). When the officer fails to appear my client gets a short term benefit (no DL suspensions) but still faces long term problems (the criminal DWI charge).

I tell my clients that it can be better to lose the ALR hearing if I get to cross examine the arresting officer. Many of the best results I have got in a DWI case (dismissals, obstructions etc) resulted directly from ALR testimony. The DWI offense report contains one set of facts. An officer's memory can, and often is, completely different.

On a side note- The State's ALR attorney is now required to write down exactly what time the police officers arrive and leave the hearing. I was informed this is a survey on the time requirements of ALR hearings. I'm certain that whatever "problems" this survey uncovers will have one solution; make ALR hearings "more efficient" and even easier for the state to win (i.e.-allowing affidavits without live witnesses).

Why should we care if ALR hearings require some officer time? We allow this implied consent nonsense as a civil suit end run around protections for criminal defendants. The state is trying to take away your ability to drive. In a strip mall, tollway, limited public transportation, exurb-commuting state like Texas that is no small detriment. Requiring law enforcement to show up for a 15 minute ALR cross examination is the least we should do.

Dallas' red light camera program was struck down yesterday. A judge ruled the city's shameless money grab violates Texas law. I have been following the proliferation of red light cameras in Texas. It's a greedy government pig covered with some public safety lipstick.

Why did the judge rule these cameras were illegal? To the occupations code we go!

§ 1702.104. INVESTIGATIONS COMPANY. (a) A person acts as an investigations company for the purposes of this chapter if the person: (1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to: (A) crime or wrongs done or threatened against a state or the United States;....... (b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public.

Dallas was so exited about stealing money from drivers, they forgot to read the law.

Being in criminal defense necessitates familiarity with laws well outside the Penal Code and Code of Criminal Procedure. All defense attorneys need to be aware of this statute.

Why? Because evidence obtained in violation of state law can not be used against criminal defendants. It's our state's version of theexclusionary rule. If the police want to use this red light camera information to place a defendant in a certain place at a certain time, they have to make sure the camera company is licensed.

The fight isn't over yet. Our appellate courts love upholding police powers and Dallas is addicted to red light cash.

Photographed outside the State Office of Administrative Hearings in Dallas (where DWI ALR hearings are held). EVE was not nearby. I often worry about the militarization of our police forces. I'm glad to see DPD going the complete opposite direction with the Lt. Jim Dangle inspired police segway.

Many potential clients assume that if there no video tape of a DWI arrest, it helps their case. They believe that the absence of such evidence will make it harder for the State to convict them. Some also believe the State will, or must, dismiss the case for lack of video evidence.

This is a logical assumption. The State bears the burden of proving the defendant is guilty beyond a reasonable doubt. It doesn't seem unreasonable that when the State loses critical evidence they should have to dismiss the case (unfortunately, the appellate courts require an impossible showing of "bad faith"). In my experience, the absence of a DWI videotape always hurts the defense more than the State.

First, the absence of a video tape leaves out the only unbiased observation of events. Defendants don't take notes during their arrest (most wouldn't know what to write anyway). That means the only record of events is the police report.

The problem is that the police are not writing objective factual observations. Rather, the police are trying to justify their decision to arrest and present a good case so the prosecutor will file it.

For example, most DWI reports state that the defendant had slurred speech, was swaying, failed certain field sobriety tests etc. From reading the report you would be convinced the defendant was falling over drunk.

At trial the officer is allowed to read from this report to "refresh his recollection". This is a strange practice as police reports themselves are inadmissible as evidence (they aren't trustworthy). So the police officer's version of events can be the only version presented at trial.

Only by playing the video and asking the officer to show which words were slurred, and to show the jury the swaying can you effectively negate this testimony.

Without a video tape the defense has at best (if the defendant testifies), a cop versus defendant situation. My experience is that when jurors are asked to believe the testimony of an articulate well trained uniformed police officer or the defendant, they will choose the former.

No matter how brilliant my cross examination is, it is the video tape that can convince the judge/ jury that maybe this officer was exaggerating, or did make a mistake.

I check the fresh opinions from the Dallas Court of Appeals almost daily. TCDLA helps me stay on top of opinions from across the State. Today, a TCDLA member shared an interesting DWI case with the defense bar.

Kurt Wells vs. The State of Texas- This opinion was handed down on 11/25 from the Amarillo court of appeals.

Facts -Kurt was convicted of DWI. Kurt performed the Horizontal Gaze Nystagmus test. (Personally, I would never take the HGN test, because, inter alia, the results are not confirmed on the in dash video tape.) At trial the State offered a statement from the American Optometrist Association declaring that HGN testing was valid and useful in DWI cases.

The Problem- The State offered this evidence through the arresting offer. The officer is not an optometrist, or a member of AOA. The officer had no knowledge of how the AOA came to its conclusion. We call such evidence, hearsay. Also, allowing these statements violates your right to confront the witnesses against you (Crawford).

State's Argument on Appeal- Sure it was hearsay, and it did violate the 6th Amendment right to confrontation; but it was merely a harmless error. Please uphold the conviction.

Holding- Conviction Reversed. Here is a great quote from a justice (Brian Quinn) who gets it.

While it is laudable for the State to concede error, it seems somewhat incongruous to invite like conduct in the future by simply holding that its actions were harmless. Indeed, experience teaches that in the heat of battle litigants often push the envelope of propriety until they are told to stop. As the old cliche goes, "give 'em an inch and they'll take a mile." So, care should be taken to dissuade litigants from attempting to take the mile when given the inch inherent in the harmless error rule. This seems especially so in those situations were there exists a quantum of admissible evidence indicative of guilt. The presence of legitimate evidence of guilt should not be seen by the State as a way to slip into the record evidence of dubious legitimacy.

Harmless error holdings are dangerous because they encourage the State to continue violating your rights. It's only by reversing convictions that conduct is changed.

Harmless error findings also discourage future appellants from asserting their rights on appeal. Many defendants can't afford to appeal their conviction. Those who can afford an appeal may choose to forgo an appeal if they think the court will rule that error is harmless.

Speaking of harmless error. There is no harm in requiring a new trial. If we are going to err, it should be on the side of upholding the constitution and granting new trials. Mr. Wells might very well be convicted again. If he is, at least it is without violating his constitutional protections.