Dallas Criminal Defense Lawyer Blog

Every two years our most electable citizens gather in Austin to enact new criminal laws. Passing a new criminal law can be hard. You must invent a crisis that only a new criminal law can solve, and then convince other reps to vote for it. This takes time away from important activities like boozing it up with lobbyists or pandering to special interests. To help streamline the process I have created the Texas Criminal Law Generator. This system creates instant "tough on crime" legislation that is guaranteed to pass and be signed by Rick Perry!

If you are a politician who needs the appearance of "doing something about crime" without being distracted by details like justice, rights, or liberty, the TCLG is for you.

First, pick a politically marginalized group
1. Sex Offenders
2. DWI defendants
3. Gang Members
4. Oysters!
5. Illegal Aliens

Next, define the verboten activity
1. Using a cell phone in a car
2. Medicinal Use of Marijuana
3. Possessing a dildo
4. Teaching Evolution
5. Salvia Possession

Choose a punishment
1. 30 days in county jail
2. $1,000 a year driver's license surcharge
3. Flogging
4. Asset Forfeiture
5. John Bradley ethics seminar

Finally, add some "enhancements" to look serious
1. In a drug free zone
2. With a minor child in the car
3. During a lap dance
4. While carrying a gun
5. Sundays before noon.

Here is a proposed law- It shall be against the law for DWI defendants to teach evolution, the sentence shall be a John Bradley ethics seminar, unless committed on Sunday before noon, in which case you will be flogged.

If you were on trial for a misdemeanor assault, and a witness accused you of murder, would that prejudice your case? Would you feel better if the judge told the jury to "disregard" the murder allegation?

That brings us to our case of the day, Hecht v. State, No. 05-07-00431-CR.

Facts- Hecht was charged with misdemeanor assault family violence. The State couldn't get the victim to testify, so the government put on third party witnesses to build their case.

Problem- One of the witnesses testified that Hecht "had murdered someone." Hecht was convicted.

What's the law? An accused is entitled to be tried on the conduct charged, not for a collateral crime. See Tex. R. Evid. 404(b); Campos v. State, 589 S.W.2d 424, 427 (Tex. Crim. App. [Panel Op.] 1979); DeLeon v. State, 77 S.W.3d 300, 310 (Tex. App.-Austin 2001, pet. ref'd).

Remember that cocaine you did in college? Should that be exhibit A in your DWI trial 10 years later?

Turning the defendant into the Zodiac killer guarantees conviction and impugns the right to a fair trial. Of course, lofty ideals like "rights" and a "fair trial" are meaningless sans enforcement.

In Hecht's case his only hope was to ask the trial judge for a mistrial (Denied). Instead the trial court asked the jury to ignore the allegations that the defendant was a killer preying on the public.

An instruction to disregard isn't a lobotomy. Judges don't have those Men In Black memory erase gizmos. Was there any doubt the jury would convict a homicidal maniac of family violence?

Holding- You can unring a bell. This statement was no big deal. Finally, Hecht couldn't meet the impossible standard for overturning a denied mistrial. Conviction affirmed. No new trial.

Unanswered question- Did Hecht actually murder someone? I'm not sure, the opinion doesn't say and it shouldn't matter. The right to a fair trial protects the innocent as well as those convicted of heinous crimes.

It's an ice storm auto apocalypse is Dallas. Dallasites are often criticized for their driving performance during winter storms. This criticism is most often heard from snooty mountain state residents with their snow tires and four wheel drive.

Guess what rest-of-America? No one can drive in ice. In Colorado, Minnesota, New York, it snows. It's easy to drive in snow. I took on a blizzard in Colorado once in a crappy sedan rental car. No problem.

Driving in ice is like, well any other activity on ice. It's really freakin' hard. NASCAR drivers would fail on Texas ice.

For the "you should stay home" crowd; We would all love to stay home on days like this instead of playing bumper cars on 75. However, most non school employees don't get ice days off. If the IRS would quit collecting taxes for a day, I'd be happy to not drive in inclement weather.

Dallas' best journalist, Trey Garrison, weighs in on the growth of the Nanny/Police State in Dallas. Our Dear Leaders on the Dallas City Council know how you should live your life. They have enlisted our local police to help you make the "right" decisions.

No minutia of daily activity is beyond the reach of these petty tyrants. Trey Garrison exposes the inanity with a roundup of verboten activities.

BICYCLES Code Section 9-8: “A person commits an offense if he operates or rides upon a bicycle or any side car, trailer, child carrier, seat, or other device attached to a bicycle without wearing a helmet.” Code Section 9-3: “No rider of any bicycle shall remove both hands from the handlebars or feet from the pedals, or practice any acrobatic or stunt riding upon any street, nor shall any person operating a bicycle upon a street participate in any race for speed or any endurance contest.”

I took my mountain bike down to White Rock Lake, and despite egregiously riding with no helmet, no one seemed to care. Not other riders, nor the two police officers I saw. I even did the “Look ma, no hands” off and on for at least a mile or two. On the ride home, I passed four motorcyclists, all with the wind whipping through their hair. Mandatory helmets are only for bike riders, not bikers. Groups of guys in leather on hogs are a more intimidating lobby than groups of guys in spandex shorts.

REPLICA FIREARMS
Code Section 31-16 (d): “A person commits an offense if he displays or brandishes a replica firearm in any public place within the city.”

I organized a game of “capture the flag” around White Rock Lake on a Saturday afternoon in September using Airsoft replicas. Despite seeing four goobers running around in camouflage jackets shooting at each other for close to two hours, no one on the trail around the lake or hanging out in the picnic area on the northeast side seemed remotely alarmed.

ADVERTISING
Code Section. 3-1(a): “It shall be unlawful for any person to ... wear any costume for the purpose of attracting attention of the public.” Code Section. 3-2: “No person shall operate or park a vehicle on a street nor shall the owner of a vehicle permit the vehicle to be operated or parked on a street for the primary purpose of advertising.”

SLEEPING IN PUBLIC
Code Section 31-13 (a)(1): “A person commits an offense if he sleeps or dozes in a street, alley, park, or other public place.”

Remember that spring afternoon you played Frisbee with the dog in the park and then dozed off while your honey read a book under a shady tree? Scofflaw!

SOLICITATION FOR SODOMY-NOT FOR HIRE
Code Section 31-19(a): “In this section SODOMY [ed: their caps] means any contact between the genitals of one person and the mouth or anus of another person.” Code Section 31-19 (b): “A person commits an offense if he solicits another in a public place to engage with him in sodomy not
for hire.”

That means what you think it means. If you’re in a bar or on a sidewalk and you even ask a stranger, your significant other, or even your spouse for a special favor, even one to be granted later, in the comfort of your own home, you just committed a crime. No, this isn’t about prostitution—that’s a whole different section.

SOLICITING FOR OBSCENE CONDUCT-NOT FOR HIRE
Code Section 31-20(a): “In this section OBSCENE CONDUCT means the touching or displaying of the anus or any part of the genitals of another person or the breast of a female.” Code Section 31-20(b): “A person commits an offense if he solicits another person in a public place to engage with him in obscene conduct not for hire.”

And here you get in trouble just for asking to get to third base.

POOLS
Code Section 43A-8(b): “A diving board or platform must not be placed more than three meters above the water level without approval of the [city].”

Yes, this includes private swimming pools. You have to ask permission of City Hall to have a high dive. And no Dallas city pools have them anymore, either.

SIDEWALKS
Code Section 43-5: “No person shall, by loud talking, unusual acts or exhibitions, attract a crowd on any sidewalk or refuse to desist when requested to do so by any police or other officer.”

TAXI DRIVERS
Code Section 45-4.5(a)(1): “A [taxi] driver may not wear cut-offs or shorts ... .”
Seriously.

Honestly, if you could choose any 12 people to help you make important life decisions, would you choose anyone on the Dallas City council? It's time to separate adults into two categories, those who can handle freedom and desire liberty, and those who need politicians to guide them through the day.

Update: Trey slays the idols and strawmen of the nanny statists.

Not a very good one. A Johnson County magistrate earned $50 for each forced blood draw warrant she reviewed.

When you compensate someone for the volume of work done, you will get quantity, but not always quality. What do you know? She signed at least one warrant without the required probable cause.

From the Star Telegram-

CLEBURNE — Results of a blood-alcohol test on state District Judge Elizabeth Berry after she was stopped for speeding through Alvarado last year cannot be used to try her on a charge of driving while intoxicated, a visiting judge ruled Thursday.

After a three-hour hearing Thursday, retired Senior Judge Robert Dohoney ruled that the facts cited by the officer who arrested Berry on Nov. 8 were not sufficient to support a search warrant granted by a judge to obtain her blood.

Berry’s attorney, Mark Daniel, said Dohoney’s ruling is legally correct.

"He ruled on the sufficiency of probable cause within the [officer’s] affidavit," Daniel said. "A small quantity of evidence is required to sustain probable cause. He found it did not exist."

Daniel initially challenged the admissibility of the blood tests on several grounds, including the legality of the traffic stop; evidence used to obtain the search warrant for Berry’s blood; and the fact that it was drawn in a jail interview room....

Focus on the warrant

Instead, the hearing focused on the search warrant signed by Municipal Judge Toni Driver based on the affidavit of arresting officer Taylor Archibald, who sought permission to take Berry’s blood after she refused to complete a field sobriety test or take a breath test.

Madison had also planned to call medical personnel involved in drawing Berry’s blood. Those witnesses were not called after Dohoney, at Daniel’s request, ruled on the validity of the search warrant.

Daniel led Archibald and Driver line by line through the two-page affidavit in an effort to show that the officer did not present enough facts to justify the search warrant.

He pointed out that the affidavit did not list many commonly accepted signs of intoxication, including bloodshot eyes, lack of balance or unsteady movements. Details such as the odor of alcohol on Berry noted by another officer were not included in the affidavit until Driver told Archibald that she needed more information to grant the warrant.

Even then, Daniel said, the affidavit did not say when the officer noticed the odor or where in Berry’s car the officers saw eight 12-ounce beer bottles.

Most cops and prosecutors think a refusal is enough to steal your blood. Not so, probable cause is still required for these forced blood draw warrants. Years of pro State appellate decisions have made made this a laughably easy burden to meet.

Setting the bar so low for law enforcement perpetuates incompetence. That seems to be the case here. DWI hysteria and pro conviction appellate courts have created an environment where poor DWI investigations are not punished (or suppressed). It's no surprise this officer didn't do his job on this warrant. Most of the time the defendant will plead, or the appellate court will forgive his mistakes.

The $50 Magistrate
Most disturbing is the relationship between the magistrate and the state. Magistrates are supposed to neutral and detached. To further the DWI conviction machine we have made magistrates agents for law enforcement.

From the ST-

And he questioned the propriety of the county paying Driver to review search warrant requests.

She is paid $250 a month, plus $50 per warrant reviewed, under a contract that says she is on call to "assist law enforcement and prosecutors."

Not even the pretense of neutrality. We've gamed the system to the point of absurdity. No right to counsel, no right against self incrimination, no right to confront the state's machine. The more we crack down on "drunk driving" the more we erode the fundamentals of our adversarial system.

Today I had two cases dismissed (scoreboarding disclaimer). Let's discuss why criminal cases are dismissed.

First, let me offer 3 categories of problems that lead to dismissals- factual, legal, and logistical. The first two categories are self explanatory. Logistical problems include actually getting the evidence (or witnesses) in front of a jury.

Legal issues arise from research. Factual issues from investigation. Logistical issues require a deadline and can be manufactured.

Every case that pleads represents the easiest logistical outcome for the State. With a plea the State doesn't have to put the show together. Only by creating urgency (setting the case for trial/pre trial) can you benefit from logistical problems.

Prosecutors appreciate the risk and work involved in contested hearings. Some DAs office even have official retribution policies for pre trial/trial settings. One example- Ellis County prosecutors routinely withdraws all plea bargain offers if you set a pre trial hearing. That policy, combined with a closed file/no discovery policy is a recipe for injustice. It is also a recognition that a case may be great on paper, but can and will fall apart in court.

Back to today's dismissals. I had a family violence case set for trial. It was not clear if the witnesses would show for trial (logisitcal), the DA has buckets full of other cases to prep for (logistical), the evidence against my client was flimsy (factual), finally my client had a defense for his use of force (legal). The case was dismissed.

Dismissing a case with a "victim" is never easy. No DA wants an angry victim talking to the media about the uncaring DAs office. It's much easier to dismiss a dope case than an assault or theft case.

My second dismissal was a state jail possession case. This was mostly factual. A typical LEO tactic is to arrest everyone in a car when drugs are found. Arrest em all, let the DA sort it out. In this case the factual buck was passed to me. Only after reviewing the reports and video did I have the factual ammo to request a dismissal. The ADA agreed with my assessment and dismissed the case.

The dope case was never set for a contested hearing. Many factually weak cases aren't. It's one reason that a defense lawyer's trial win/loss stats are misleading. Many of the cases I could win at trial, are never tried. As much as I rail against prosecutors many do the right thing with bad cases and dismiss.

The debate over morality and the law is one familiar to any law student. Every 1L is taught the difference between malum in se and malum prohibitum crimes. The former are crimes that are evil (murder), the latter are crimes that are wrong because the government says so (gambling, pot, expired registration etc).

A recent blawg debate asked "Is it immoral to break the law?" To any person who isn't paid to convict the answer is an obvious no. Laws are written by politicians, not exactly the moral arbiters of our time. Only the most tortured definition of morality would include "anything the majority passes a law against."

What is not often discussed is the morality of enforcing the law. When is it morally wrong to arrest and prosecute someone for illegal behavior? Prosecutorial apologists would argue that laws represent the morality of the majority and therefore the enforcement can't be immoral.

Let me beg to differ. There is a great chasm between the prosecution of consensual crimes and morality. The best (or worst) example is the arrest and prosecution of medical marijuana patients.

Each government actor is culpable, from the LEO who arrests the infirm, to the prosecutor who files charges. I've seen this cruelty first hand. This isn't a morally neutral situation, it's wrong.

Fortunately, Texans are challenging our government's ignorance and hubris. One such organization is the Texas Coalition for Compassionate Care.

Here is a Q and A withTCCC director Stephen Betzen.

1. Name/background/resume
Stephen Betzen Director.
My degree in in Marine science from Texas A&M University. After graduating I spent one year as an investigator of environmental crimes in Harris County. I went on to teach science for 4 years in HISD. In 2004 I moved to Dallas and started 2 businesses Faircoffee.com and Ecowindchimes.com which did great till last fall. Though still running these businesses I am looking for a job to supplement my income.

More important to me is how I got involved in the Medical Marijuana movement. Though I never opposed medical marijuana, because I have always believed that doctors should be able to treat their patients and not the government... I did not truly believe in it 5 years ago. In fact I said some things that I regret to this day. My change in prospective came as I watched my wife slowly suffer from an unknown illness. Chronic neuropathic pain and spasming in her muscles became a daily problem and were getting worse. We were going through test after test to find the problem with suspicions of MS, fibromyalgia and others... all eventually ruled out. Doctors had prescribed her opiate medications to address the pain, however she stopped using them because that caused so many problems. The strong opiates and muscle relaxers prescribed were addictive and impaired her cognitive functioning, essentially making her lose touch with reality. Since she was unable to work while on these drugs, she had to stop as she owned her own speech therapy practice and had to keep it running. At this point we were in a very dark place in our lives and had lost almost all of our hope when someone who saw her suffering, an angel, placed a package on our porch containing 2 sandwich bags of marijuana and a letter explaining that she should try it to relieve her suffering.

The results were not at all like I had suspected, rather than looking/acting drugged she didn't miss one day of work and she was still able to function cognitively in order to perform her duties as a speech therapist. I continued to research it and found that medical science is reporting the same results with few side-effects. It made me angry to discover how distorted my previous views were.

I can not explain to you in words the pain for hearing the one you love most, cry every morning. I can not explain the joy of finding the medicine that worked and improved her quality of life in measurable ways. I can not explain the frustration of knowing that to treat my wife and improve her quality of life, I must break the law.

The following year (2007) I joined Texans for Medical Marijuana in their efforts. Unfortunately they shut their doors that summer, and I felt that we needed to move forward. I contacted other patients, caretakers and advocates and found that they also felt the loss of this organization. So we started the Texas Coalition for Compassionate Care and started the search for a non-profit to handle our funds (I still don't know the technical term for this, I have heard so many)... not only did the Dallas Peace Center agree to handle our funds... but they took us and our mission in completely, so we are technically a committee (and this is better financially for us).

2. What are TCCC's goals for this legislative session? What bills are you promoting?
We are focusing our efforts on affirmative defense for patients and protecting doctors, which is exactly what HB164 does. We will work on having a senate companion bill filed. The goal this session is to have this bill pass and become law.

Continue reading " TexasCompassion.com " »

My wife and I saw Gran Torino last night. GT is a great film worthy of all the Oscar buzz. I don't usually do movie reviews but here goes.

GT is a formulaic Eastwood in a good way. Dramatic, funny, and ultimately tragic. The whole time I was just waiting for things to go horribly wrong Million Dollar Baby style. And wrong they went.

Spoiler alert- I'm going to give away the ending so we can discuss the castle doctrine. If you aren't willing to trade your surprise for this discussion click here.

Client Eastwood's character Walt is a bigoted veteran who loses his wife. Walt befriends a young boy (Toad) and his sister who live next door. Toad and his sister are harassed by local gang members.

During an altercation Walt points his M1 rifle at the gang. Later, Walt beats the crap out of one gang member. Finally, the gang members assault Toad and rape his sister. You know this isn't going to end well.

Dirty Harry shows up at the gang's house for a final confrontation. Walt points his finger at the gang members and says "bang", shooting them with an imaginary hand pistol. The gang members are nervous, and armed with an assortment of firearms.

Suddenly, Walt reaches into his jacket. The gang members quickly fire multiple rounds into the Space Cowboy, killing him. Walt wasn't carrying a gun, only his lighter. The gang members are arrested with the expectation of long prison sentences.

Such is the ending of Gran Torino. Walt sacrifices his life so his friends can live in peace. Typical depressing Eastwoodian conclusion.

The movie took place in Michigan. Would Walt's plan work in Texas? Would the gang members go to prison? Or would the castle doctrine have justified their use of deadly force?

Disclaimer- THIS IS NOT ADVISE (LEGAL OR OTHERWISE). DON'T SHOOT OR NOT SHOOT ANYONE BECAUSE OF THIS. IF YOU DO, YOU ARE A MORON.

If you must read my wildly speculative thoughtless ramblings the discussion is below the jump.

Continue reading " Gran Torino and the Castle Doctrine " »

Blawgers are still sifting through the 4th amendment wreckage from the Herring disaster.

How would a similar situation play out under Texas law? Would our exclusionary rule (38.23) protect the public from illegal searches based on non existent warrants?

This brings us to White vs. State, a 1999 case from the San Antonio Court of Appeals. H/T to the TDCAA message board and David Newell for bringing forward this opinion.

White vs. State

Facts The Bexar County Sheriff informed a San Antonio police officer that there was an outstanding felony warrant for James White. SAPD officer goes to White's apartment, obtains a key from the landlord and lets himself in. White is found in the shower. During the arrest the officer finds a misdemeanor amount of marijuana.

Guess what? The warrant had been recalled. There was no warrant for the arrest of Mr. White. Defendant moved to suppress all evidence resulting from the illegal arrest. Motion denied by the trial court, defendant appeals.

Issue- Does 38.23 require the suppression of the marijuana?

Other issues- Shouldn't the government be responsible for maintaining an accurate warrant database? Or is this good enough for government work? Are we going to further erode our basic protections to save another useless pot conviction?

38.23
What is 38.23? It is the Texas version of the exclusionary rule. I'm glad Texas codified this common sense measure, since SCOTUS is hell bent on destroying the 4th Amendment.

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

How will the San Antonio Court of Appeals save this pot conviction? Simple, just expand the definition of "warrant" to include recalled warrants. Remember, it's only legislating from the bench if you further a liberal cause, this is strict constructionism.

Holding- A recalled warrant is still a warrant under 38.23(b) so the good faith provisions apply. If Deputy Dingdong at the Sheriff's office doesn't update the warrant database, and the arresting officer doesn't know the warrant is recalled, then the defendant has no recourse for a wrongful arrest. No suppression despite the illegal arrest.

I propose altering 38.23 to better inform the public how limited their protection is against illegal arrest. There is an distinct danger that Texans could read 38.23 and believe the law provides some degree of protection from such malfeasance.

Therefore, I propose a new subsection (c) for 38.23 as follows-

(c) It is an exception to the provisions of subsection (a) if drugs are found. The court shall consider the thousands of government employees who rely on petty drug arrests for their livelihood and sanction any police conduct that results in another triumphant dope arrest!

SCOTUS has a sorry history of eviscerating constitutional protections to save dope cases. Today's case, Herring vs. US, is textbook SCOTUS drug war/police apologetics.

Facts-
The police really wanted to arrest Herring because they had arrested him before. Once a criminal always a criminal right? The police knew that Herring was going to the impound lot to visit his car and wanted to arrest him before he left. Herring wasn't breaking any law. How could these cops arrest Herring without evidence of any crime?

These resourceful cops frantically called into the local sheriff to check for warrants on Herring. No warrants existed. So the cops called a neighboring county. Touchdown! There was a warrant. The police quickly arrested Herring and found some meth and a gun.

Problem- The warrant had been recalled 5 months earlier. There was no warrant. Some bureaucrat was too busy reading Perez Hilton to update the warrant database.

Issue- Shouldn't evidence (meth/gun) from an illegal warrantless arrest be suppressed?

Holding- Suppression denied, another useless meth conviction saved. Arresting someone on a non existent warrant is mere administrative negligence.

Notice how SCOTUS framed the issue. This wasn't a warrantless arrest, it was attenuated isolated negligence. Obviously. From the opinion-

Held: When police mistakes leading to an unlawful search are the re-sult of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements,the exclusionary rule does not apply.

If a recalled warrant is still in the system after 5 months, isn't that evidence of "reckless disregard" or "systemic error"? What is the harm in holding the government accountable for their own mistakes? Especially mistakes that lead to wrongful illegal arrests.

In our world turned upside down the 4th amendment ends up protecting the government, not the people. SCOTUS has created another impossible standard for defendants who wish to challenge malfeasance. "Systemic error" is the new "bad faith."

The rise of the paramilitary SWAT team is a testament to the failure of America's criminal justice system. It defines the transition from peace officers, to law enforcement.

One problem with giving the government the power to kick in doors while playing army is that the government can't be trusted to kick down the right doors. "New professionalism" advocates like Scalia would be shocked to learn how often the government wields the shock and awe power of the SWAT team at the wrong location.

Recently I file an open records request on Dallas SWAT wrong house raids. The first report I received detailed an incident from December 2005. The person involved didn't ask for blog publicity, so I won't reveal any personal information.

The victim's story-
The victim was at home with her son. The police came to her door demanding entry. The victim pointed out that they were at the wrong house. The police entered the home without pemission, pointed a gun at her son, and threatened to shoot her dog (Puppycide is epidemic among SWAT teams).

This complaint prompted an internal affairs investigation. IA interviewed the cops involved. Can you guess their version of events? Do you think the officer's testimony was all on the same page?

Cop's story
The officers admit to approaching and entering the wrong house. That's where the similarities end. The officers claim to have received permission to enter and search the house. Furthermore they deny pointing a gun at anyone and threatening to murder any dogs.

Amazingly, each police officer testified to the same version of events. That must make it true, right!

Inconclusive
How did internal affairs rule in this case? "Inconclusive" with "no violation of department rules." The main reason for this decision was "conflicting testimony." That is, the cops who entered the wrong house wouldn't admit to the other mistakes they made.

The standard applied by internal affairs was preponderance of the evidence. IA ruled there was not a 51% chance the victim's story was true.

IA obviously discounted the testimony of anyone who was not law enforcement. The victim wasn't a criminal, she was a citizen whose home was wrongfully invaded by SWAT. Is it not 51% possible she was telling the truth? Or is a police confession required?

This is why all police encounters, much less home invasion SWAT raids, should be recorded. Too often a criminal trial comes down to an officer's testimony. Just like IA many jurors will decide conflicting testimony in favor of the person in uniform.

More reading: Grits has this report on the Dallas Police no snitching culture.

Plea bargaining is one of the most important aspects of criminal defense practice. Like most vital areas of real world law, it is not taught in law school. All PB experience happens on the job.

One of the aspects of the plea bargain is talking with your ADA about problems with the case. For example, you may point out that the arresting officer isn't very strong on the stand, or has recently been arrested etc.

Such statements are usually made with a request for a specific disposition; a dismissal or better plea terms. Most ADA's have more than enough cases set for trial, many don't want to waste time presenting a problem case to a jury.

When sharing information critical of an arrest your ADA may exhibit Kuber-Ross stages of grief. Being prepared for the denial/anger stages can help you avoid making a bad decision.

Kulber-Ross

1. Denial:
"There is nothing wrong with this case."
2. Anger:
"This case is fine!! Your client is going to jail!!!"
3. Bargaining:
"How about obstruction of a highway?"
4. Depression:
"I can't believe I set this piece of shit case for trial."
5. Acceptance:
"Time to pick the jury. I should dismiss this now while I have the chance."

The intensity of the reaction depends on the severity of the charge, office policies, the defendant's criminal record etc. The anger/denial stages can be intimidating to the novice defense lawyer. There may be threats of punishment enhancements, the withdrawal of probation offers etc.

Some DA's have policies that require the trial of even the weakest cases. For example, Collin county is notorious for not dismissing DWI cases, no matter how flawed. Sharing critical information may not have much value in such a situation.

It should go without saying that subtlety also helps. Unless you are appearing pro hac vice you will meet that ADA again. You don't have to be apologetic about problems with the case, but keep your wanton hubris in check.

I had court in Kaufman this morning. 6 cases set in two courts, one upstairs and one downstairs. First, I went to the upstairs court. I spoke with the ADA, worked out a plea bargain, decided to set two cases for pre trial etc. Things are moving along when two lawyers and my downstairs client inform me that my downstairs case has been called and the judge is waiting.

Not wanting to make the judge unhappy I book it downstairs; talk with another ADA, got appointed to a new case, and worked on passing these cases.

Before I can finish downstairs, the bailiff from upstairs comes to tell me that I still have 2 clients waiting and that I need to go back upstairs. It seems the upstairs judge has another hearing at 10:30 and my clients are holding that up. I quickly fill out two reset sheets, tell my new client to meet me at my office, and go back upstairs to finalize those cases.

7 cases resolved (for the morning at least) in 90 minutes. Not bad.

I appreciate the need for judicial economy and efficiency. However, there is only one of me. My absence is not purposeful. If I'm not in your court I'm on my way. Sending the bailiff to get me is a thoughtful gesture. However, I don't require a personal armed escort to our hearing. I want to be there; now. I need a clone, or an assistant, or an RFID implant to track my exact location and estimated time of arrival.

Finally, if you are an ADA and tired of waiting on my case you have my permission to dismiss said case.

There is no shortage of good blawg advise on hiring a criminal attorney. There is a shortage of good information on hiring me. Too fill that void let me offer a quick guide to our consultation.

FREE!
Like most criminal defense lawyers I don't charge for a consultation. I gladly donate 30 minute (sometimes longer) blocks of time to prospective clients.

Free consultations are important pro bono work. Potential clients come to my office saddled with fear and uncertainty. This anxiety can lead to poor decision making (like taking a "great" plea offer). I provide guidance and experience that can help you make better decisions going forward, gratis.

The Part That's Not Free- Legal Fees
This is usually the part where defense lawyers tell you how expensive convictions are, and how important we are. It's not lawyer posturing or fear mongering. It's the truth. You need a good lawyer to avoid getting screwed by the system.

How do I arrive at your fee? The first consideration is the offense. Most lawyers have a ballpark figure for DWIs, state jail dope cases etc. This initial number is based on how much work similar cases have taken in the past, how difficult the DA is etc. Other factors can influence the final cost- your criminal history, factual complexity, suppression issues, experts needed, pending deadlines etc.

What are the odds of _____________?
Most clients ask "What are the odds I get probation?" or "What percentage of these cases are dismissed?" Clients want a criminal defense forecast/weather report.

What you want me to say-
"There is a 30% chance of deferred probation, however a high pressure DA is moving into your court and bringing with her a 50% chance of jail time."

What I do say-
I can't guarantee any outcome. I can tell you what I have seen in similar cases and what I will do to fight your case. I am not a law prophet. There are too many variables I don't control (judge, prosecutors, cops, witnesses) to guarantee anything.

"But this other lawyer said he can get the case dismissed". To borrow a title from Mark Bennett, that lawyer is an asshat. (link fail, Shawn Matlock is NOT an asshat). I would love to promise you a dismissal with a letter from the police apologizing for you arrest. I can't because I avoid asshatery at all costs.

Two great stories from DMN. First, the number of executions in Texas decreased from 27 in 2007 to 18 in 2008. What's the cause of the 30% reduction in government killing? DMN attributes the enormous cost of death cases, a zealous defense bar, new sentencing options, and the decreasing number of murders.

From DMN-

Executions nationwide and in Texas were down in 2008. So were death sentences. The numbers don't lie – but not everyone agrees on what they say. Defense attorneys think the statistics indicate a waning enthusiasm in the Lone Star State, the death penalty capital of the country, for the ultimate sanction. Also Online Link: Texas Department of Criminal Justice schedule of executions "It has taken a little longer for the transformation to be felt here," said Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas at Austin. "I think we are seeing the leading edge of that national transformation." "> Executions nationwide and in Texas were down in 2008. So were death sentences.

The numbers don't lie – but not everyone agrees on what they say.

Defense attorneys think the statistics indicate a waning enthusiasm in the Lone Star State, the death penalty capital of the country, for the ultimate sanction.

"It has taken a little longer for the transformation to be felt here," said Rob Owen, co-director of the Capital Punishment Clinic at the University of Texas at Austin. "I think we are seeing the leading edge of that national transformation."...

The 18 executions that took place in Texas in 2008 occurred in the last half of the year, following a decision by the U.S. Supreme Court that had temporarily halted capital punishment. And 13 executions have been scheduled in the next nine weeks.

Some sad comments follow including calls for speedy public executions. I'll got out on a limb and assume the execution zealots have limited contact with the criminal justice system.

Why should you oppose the death penalty? I'll skip the religious/moral debate on killing defendants. Our government is too corrupt and incompetent to administer something so permanent. The DNA exoneration parade confirms that our criminal justice is not only fallible, but that wrongful convictions are a certainty. Until we provide some basic protections for all criminal defendants, say some sort of bill providing rights for the accused, the state has no business killing anyone.

Politicians of the Year- El Paso City Council
No doubt inspired by my Einstein quote, the El Paso city council passed a bold resolution this week. The unanimous measure calls for a discussion on the possibility of changing federal drg policy. El Paso is hardly a fringe libertarian hotbed. The narco civil war at their doorstep, including 1,600 murders in Juarez in 2008, is the inspiration for change.

Luckily for drug warriors, the asshat mayor vetoed the measure. Status quo protected. Our federal government continues to fiddle while Mexico burns. Supplying American drug demand is so profitable, that drug cartels have billions to spend on a bloody power struggle. Demand creates supply. We can choose a new supplier (government, free market, Pfizer, CVS, Canada) at any time.

From DMN

Concerns about the bloody drug war being fought just across the Mexican border led to a short-lived resolution Tuesday asking the federal government to consider legalizing drugs.

Mayor John Cook vetoed the resolution hours after it was unanimously approved by the City Council.

Beto O'Rourke, an El Paso city councilman, pushed the resolution that asked the U.S. government to start an "open, honest, national dialogue on ending the prohibition of narcotics."

"We think it should at least be on the table and so far it hasn't," O'Rourke said.

Stuff White People Like
I have to admit I'm guilty as charged on a few of these.

Texan of the Year and Dallas DA Craig Watkins came into office on 1/1/07 on a Democratic tidal wave. Beyond the DA's office longtime GOP criminal court judges have been replaced with Democrats. Much hang wringing among the GOP law and order crowd ensued. What happens when liberal commie criminal loving Democrats take over the criminal justice system?

In Dallas at least, crime went down 10%.

From DMN-

After a stumbling start in 2008, crime in Dallas fell 10 percent from the year before, according to figures released Monday by police.

And only moments after announcing the good news, Chief David Kunkle, a marathon runner in his off time, set an equally ambitious pace for the coming year.

"Every year we have to work really hard," he said. "We believe that we can see another 10 percent reduction in crime" in 2009.

Among the highlights from 2008 were a nearly 20 percent drop in aggravated assaults and a 15 percent decline in murders. The overall decline beat a goal of 8 percent set by the City Council.

Correlation fallacies aside, if the number had went the other way I'm sure a few DMN commenters or local bloggers would have noticed.

First, some Einstein.

Great spirits have always found violent opposition from mediocrities. The latter cannot understand it when a man does not thoughtlessly submit to hereditary prejudices but honestly and courageously uses his intelligence. - Albert Einstein

Texas has a sorry history of passing and never repealing doltish criminal laws. For example, in 2003 the Supreme Court declared the Texas sodomy laws unconstitutional. The ban on homosexual sex is still on the books for the lack of a brave or even principled politician.

Outdated mediocrity like sodomy prohibition, marijuana prohibition, bans on dildos, and 11 seperate felonies related to oysters are an embarrassment to our state. I hope this next legislative session finds a few great spirits in Austin opposed to historical thoughtlessness.

What can you do to help? Change.org (not to be confused with Obama's Change.gov) is gathering ideas (mostly far far far left ideas). Repealing marijuana prohibition is the number one most popular and dare I say best idea on the site. Now click my widget and support the repeal of marijuana prohibition.

Guitar Hero World Tour was an entertainment force in my house over the holidays. At my Christmas party, on Christmas, whenever friends or family were around the fake plastic GH drums, guitar and mic were in action.

For the cave dwellers amongst my readership, Guitar Hero World Tour (GH) is a music game in which the player spends time destroying colored circles in rhythm with the music. It's a karaoke/rock band experience that most people are instantly hooked on.

I have a unique perspective in that I can actually play guitar (or at least I could, it's been a while). In law school I was the guitarist for Lubbock's greatest law school rock band- 5 Hours From Dallas. Playing GH can be hard for real guitar players. It takes a while to understand the timing.

Success in GH isn't dependent on real guitar or drum skill as much as giving GH what it wants. That is, destroying the circles that come at you, making the digital crowd cheer, and earning points.

GH success doesn't mean you can really play guitar, drum, or sing. It can feel that way. The crowds cheer for you, real rock music is coming out of your TV speakers. Don't fool yourself. On GH I can play "BYOB" and "Hot for Teacher" on drums (medium). My real life drumming skills are more Meg White than Neil Peart.

Vocally I can sing like a champ in GH. In real life my law school band had five members, with four mics on stage. Audiences were purposefully spared from my unique vocal performance.

Finally, the criminal law tie in. I see some amazing parallels with pro se defendants. Pro se defendants can show up and act like a real attorney. You can really plead guilty, sign plea papers, go in front of the judge, talk with the prosecutor etc; just like a real attorney! The judge, prosecutor, and probation officers will cheer you on during your performance. It's Law Hero Pro Se edition!

The problem; proceeding pro se isn't real criminal defense anymore than I am really on tour with Van Halen. Just like GH, you are giving the system what it wants (money, speedy disposition); not defending anything.

The lesson- buy GH, and never play Law Hero. Criminal defense is not a game and you will lose.

First, I want to wish my readers a wonderful 2009. Thanks for reading and commenting. My 18 month old blog sits at 130,000 hits. I'll keep typing as long as you keep reading.

My wife and I celebrated New Year's at a party in downtown Dallas last night. Like most revelers we booked a room downtown and took cabs to avoid driving. The priceline hotel gods put us in the Hyatt Regency. Unbeknownst to me was the fact that the Ole Miss Rebel football team was also staying there. Finally, I was sporting my red Texas Tech hoody sweatshirt (red hooded sweeeeaaatshirt).

The Cotton Bowl had made TT/UM into forced rivals for the next few days. So much so, that I was viewed with immediate suspicion by the Rebel fans, boosters, players, and cheerleaders. Even the Mississippi highway patrol looked concerned at my presence. I was being collegiality profiled.

The Rebels I met were incredibly polite and courteous. At the end of conversation we struggled around saying "good luck" to each other. "Have fun at the game" seemed a more appropriate closing statement.

Finally, I'm confident Tech is going to win tomorrow. Teams that don't play Tech often can have a hard time with the spread offense, and our wide split linemen. I would be more confident if Tech hadn't laid an egg against OU and then played in a daze against Baylor. With Tech's bowl/comeback history I'll feel good if we are within 21 at halftime.

Update: Tech fail. $h&! We lost. What an awful game. The Rebels go down 14-0 and then score 24 unanswered. It looks the Big 12 isn't quite the defensive juggernaut. The month off also hurt our offensive timing. I would be more upset if the UM fans hadn't been so nice and this hadn't been such a good year for Tech. Hotty Toddy indeed.

Let me join the ubiquitous chorus calling for a college football playoff system. It's bad enough we screw the players by not paying them for what is essentially minor league football. We also screw the fans by not giving them a real national title, or even a decent competition for the national title.

The Utes and Rebels should still be playing for something. I can design a better playoff system in about 2 minutes. Go!

Ok. Let's have a 12 team playoff, top 4 get a bye, hold the games at current BCS bowl sites for tradition, let in 8 conference champs and 4 wild cards. Teams that don't make the tournament can still play in bowl games across the country. Problem solved.

I had a DWI bench trial few weeks ago and received a directed verdict of not guilty. I respect the ADA involved so I've waited until now to write about it. I don't want to appear like I'm scoreboarding anyone. It was a unique case that played out very strange at trial.

It offers a lesson for DWI defendants. The information contained in a police report may very greatly from the evidence at trial. Cross examination is still the best way to test the veracity of evidence.

What is a directed verdict?
In general, at trial after the State rests (finishes presenting their case in chief) the defense will move for a directed verdict. The defense is asking the judge to find the defendant not guilty because as a matter of law the State has failed to produce any evidence on an element of the case. I've seen and made dozens of directed verdict motions. They are routinely denied.

Why was mine granted?
I made a motion to suppress all the State's evidence during trial. The judge granted that motion. That meant that the State had not put on any evidence of DWI. Therefore, a directed verdict was required.

Why was my motion to suppress granted?
The arrest report listed one set of facts regarding the initial traffic stop. At trial, the officer testified to a complete different reason for the traffic stop. However, that reason was factually impossible. It couldn't have happened. Evidence from an illegal traffic stop can't be used against the defendant (38.23). Ergo, all the State's evidence vanished.

Why did I have a bench trial instead of a jury trial?
The decision to have a judge or jury trial is always up to the defendant. I provide advise of what to do. But if the client and I disagree, it's his/her decision.

Going into trial I thought there was going to be a legal defense of necessity. DWI necessity is a strange animal. I thought allowing the judge to rule on the facts and the law would be most beneficial in that situation. However, with the directed verdict the necessity issue was never raised.