Dallas Criminal Defense Lawyer Blog

I've discovered there is an inverse relationship between blogging and legal work. I'm grateful to be busy in this economy, but it's giving me blog fail. What I do have time for is another roundup!!

On Sotomayor-
First, I'll admit I have not done an exhaustive study of her opinions. I'm only familiar with the cases that have been highlighted by the media/blogosphere. My scant review of her track record indicates she is less of a liberal than a knee jerk statist. She seems to consistently side with the government over the individual. Whether it's cops (even really bad cops), eminent domain, affirmative actions programs, et al, the winner is the state.

The debate over strict constructionism vs. legislating from the bench is talk radio nonsense. Instead we should be concerned with a nominee's view on what protection, if any, the Constitution provides the individual. If Soto's case, it seems the individual is the means to the ends of the current political majority.

It's a strange day when ever the "liberal" SCOTUS nominee hates criminal defendants. Can we just give Ginsberg an extra vote?

Acetaminophen will kill you! FDA to the rescue!
We are all children of the wise omnipotent federal government. Lest we forget how important they are, a fresh crisis will be invited to remind us.Today, it's Tylenol. The media is falling over themselves to report on how dangerous acetaminophen is. I've taken a few hundred doses of aceta in my life, I'm still here, liver and all.

There are roughly 300,000,000 Americans. Last year, about 500 died from taking too much Tylenol. What does that tell you? That we need new laws and restrictions on Tylenol use? Or that 299,999,500 Americans understand how to use pain relievers safely and deserve the simple freedom of buying Tylenol without a prescription, and/or mixed with Nyquil?

Let's magnify the idiocy- last year acetaminophen killed 500, pot killed zero. Both provide pain relief. Moving on.

Payday loans and the Hot Check Hustle
I recently blogged about the unholy alliance between DA's and local business.

Today, I heard that the payday lenders have picked up on the fact they have an on call law enforcement debt collector. Allegedly payday loan companies are threatening to send bounced checks to local DA's offices unless you pay the check and some hefty "fees." That is, you get the loan, sign a post dated check, and if the check comes back your loan shark/pay day lender threatens to call the DA. This the kind of behavior we encourage when we make our prosecutors into human repo men and turn the county jail into debtor's prison.

Threatening jail time to collect a debt violates our fair debt collection act (ironically, actually using the DA to arrest the debtor doesn't).

Justice Thomas thinks it's ok for the government to search your teenage daughter's panties for Advil. Fortunately the eight other Supreme Court justices found such a perverse invasion of privacy unreasonable. Is there a less free place in America than a public school?

If there is, it's the airport. Trey Garrison focuses his wrath on TSA security theater. He's not taking his god damned shoes off. A must read for anyone who flies, or values freedom.

Another casualty in the war on pot. One problem with prosecuting pot smokers is that they are sent to the county jail. County jails are plagued with danger, disease, and incompetent oversight. The tragic death of Theresas Anthony in Houston is but the latest death sentence for a cannabis defendant. Ms. Anthony was serving a two week sentence for the "crime" of possessing marijuana.

SCOTUS rules that the Confrontation Clause means that you have the right to.... CONFRONT the witnesses against you at trial, even if those witnesses work in a crime lab.

Finally, since we are calling a special session of the legislature I am going to lobby for a bill making it illegal to require anyone to wear a suit and tie in a heat advisory. I have to peel these things off at the end of the day. With all the public support for lawyers I'm sure this will pass.

I had another two court day; morning in Dallas, and afternoon in Kaufman. I had a few passes and an open plea in Dallas. I saw a few friends at the courthouse one of whom pointed out a MADD courthouse runner.

MADD sends spies to the courthouse to monitor the DWI cases. I've never actually seen one until today. He was an earnest looking young man armed with a notebook. I wonder who he reports to and what he is reporting? If I see him again I'll ask.

On my open plea- I had a DWI case (don't tell MADD), the state made a plea offer but we chose to plead open to the judge.

That is, my client pled guilty and asked the judge to set punishment. It worked out well and we received reasonable terms.

Judges are an important safety valve on the criminal justice system. If the DA is worried about offending MADD and won't make a reasonable plea offer, sometimes you need a judge to dispense justice.

How much is weed in Terrell, Texas?
I arrived in Kaufman just in time for a 1:30 setting on a felony case. There was a hearing underway in which the defendant had pled for 8 years TDC and was asking for shock probation. Shock probation is where you serve a little TDC jail time but get out on probation. The idea being that the "shock" of jail will scare you straight.

The State wanted the judge to deny the motion and called a narcotics officer to the stand. A typical strategy in a drug sentencing is for the State to highlight the monetary value of the transaction. As an objectivist this has never made sense to me. Voluntary transactions are inherently moral. This defendant was helping to meet the perpetual demand of our nation's millions of cannabis consumers. If he was selling cigarettes or Jegermeister there wouldn't be an issue. Such is prohibition.

The narcotics officer was asked how much weed costs. He responded that in Terrell, Texas his last buy was $250 for a quarter pound. He also said a full pound may not be $1000 (economies of scale happen).

Here is what is amazing about supply and demand. Terrell is a small town of 13,000. You can't buy sushi in Terrell, but every day of the year you can buy pot, crack, meth etc. Unlike the doltish marijuana laws of our state, the laws of supply and demand are always obeyed.

The officer went on to discuss the fundamentals of the marijuana market. Marijuana is bought in El Paso and shipped east (Dallas, Atlanta etc). The border price will rise or fall depending on border security and whether the buyer has a decent connect. The retail price depends on the risk involved, the number of mules required etc.

So what happened to this defendant? For the "crime" of possessing 80 pounds of a verboten plant he is serving 8 years in TDC at taxpayer expense.

What did this prosecution accomplish? We could ask the narcotics officer what happens when you reduce supply and demand stays the same. Somewhere 80 pounds of marijuana did not arrive, the local price will increase, and supply will follow.

From the Drug Policy Foundation-

A recent World Health Organization study on cocaine came back with these findings, inter alia,

By far the most popular use of coca products worldwide is the snorting of cocaine hydrochloride. Most participating countries and sites did not report significant cocaine-related problems among this group of users.

and

Health problem; from the use of legal substances, particularly alcohol and tobacco, are greater than health problems from cocaine use. Few experts describe cocaine as invariably harmful to health. Cocaine-related problems are widely perceived to be more common and more severe for intensive, high-dosage users and very rare and much less severe for occasional, low-dosage users.

This isn't that surprising. Coca cola anyone? Barack Obama and countless other successful individuals have used a little blow at some point in their lives (W can't remember). Most users do not end up like Chris Rock in New Jack City. The WHO report adovcates a harm reducation approach instead of the American lock em up by the thousands approach.

Anyone care to guess how our US government reacted to this WHO report? Basically, the feds threatened to pack up their toys and leave unless WHO distances themselves from the findings and adopts our country's cocaine hysteria propaganda.

"The United States Government considered that, if WHO activities relating to drugs failed to reinforce proven drug control approaches, funds for the relevant programmes should be curtailed. In view of the gravity of the matter, he asked the Director-General for an assurance that WHO would dissociate itself from the conclusions of the study and that, in substance abuse activities, an approach would not be adopted that could be used to justify the continued production of coca."

The War on Drugs, where Ignorance is Strength.

Remember the debate over removing the special rule of attorney client privilege for criminal cases? Lubbock Criminal Defense Lawyer Ben Webb shows why 503(b)(2) still matters; because the State will call your defense lawyer to testify against you.

From Lubbock-

Medical Marijuana Patient Protection Act
No issue better highlights the moral bankruptcy of law enforcement than the federal prosecution of state licensed and legal medical marijuana providers. Since SCOTUS long ago nuetered the 9th and 10th Amendment we now require a federal law that states the obvious; the feds should not prosecute conduct that is legal under state law.

To that end the Medical Marijuana Patient Protection Act, sponsored by Barney Frank and Ron Paul et al, would prevent the feds from prosecuting state licensed and legal medical marijuana providers. I've already contacted my reps. Click here to voice your support for this compassionate common sense measure.

For every action, there is an equal and opposite political reaction
Hot on the heels on the Medical Marijuana Patient Protection Act comes a proposal from village idiot/US Rep Mark Kirk of Illinois (R) as in R you surprised this is a republican idea?))

Mark believes the marijuana today is much stronger than the stuff his friends, George Bush, Barack Obama, Newt Gingrich and Al Gore smoked back in the day. Instead of say, legalizing marijuana and regulating THC content, or requiring labels with the THC "proof" just like we do for alcohol, Mark's proposes a 25 year minimum sentence for "drug dealers" with "kush" marijuana.

Great idea. Just what our country needs during this recession, more marijuana defendants in federal prison with mandatory 1/4 century sentences. Mark should get his Mensa application in before this sudden burst of genius dissappears.

Mark's website bills him as pro-personal responsibility. I've never understood how personal responsibility equates to throwing adults in jail for a quarter century for possessing a plant. What is responsible about blind obedience to tyranny? That's not responsibility, that obedience to your government masters.

During a DWI voir dire I often remind jurors that drinking then driving is not illegal sans intoxicaiton. That is why every bar in Texas has a parking lot.

But should it take a trip in automobile to reach a bar? Does our sprawl/automobile based society create DWI accidents?

First, a travelogue. My wife and I spent last week at a conference in San Antonio, and then spent Saturday in Austin. In SA we stayed at the Emily Morgan. The first night my wife and I walked to Casa Rio, had some drinks with dinner, and walked back. Two nights later at the TCDLA member party we walked to the Hilton, drank at the very loud "English" pub Mad Dogs (do people really wear plaid skirts and listen to Beyonce in English pubs?) and walked back. On both occasions picking a designated driver or hailing a cab wasn't even a consideration, we could walk so we did walk.

Why don't cities and suburbs encourage such situations? In a sprawled out drive everywhere state like Texas DWI is inevitable when the majority of our population don't live within walking distance of anything but houses. Yet the government gets a free pass for their poor zoning decisions. If people like to drink together in public, why does the government require them to drive to do so?

It's not just alcohol that requires a car trip. In suburbia all forms of human interaction require an internal combustion engine. In Austin (south of downtown) the neighborhoods are dense and spill over into commercial areas. Saturday for lunch we met a friend at a hamburger joint and she walked from her house. I've lived around Dallas for most of my life, I have't walked to a meal since I was 14. Today I live in Ennis, you could walk from my house for an hour before reaching a non residential structure.

What if we let the market decide where alcohol was served? What if we allowed bars (with or without parking lots), closer to residential areas? Let me adopt a common statist argument- if changing zoning laws prevented one DWI fatality, wouldn't it be worth it?

Jury selection is art and science, part Dr. Phil, part Dr. Freud with some law thrown in for good measure. It's an area law schools provide no practical instruction for, yet no lawyer can try a case without knowing how to select a jury.

What law students are taught is Batson vs. Kentucky. Batson purported to end the practice of striking jurors based on race or ethnicity. This rule was later swallowed by the exception, but for a shining moment, the right to serve on a jury regardless of your race was protected by the Batson challenge.

What is a Batson challenge?
Either the State and Defendant can raise a BC if it appears that jurors were struck for their race or ethnicity. Then the opposing party must put forth a racially neutral explanation for each strike.

This brings us to our case of the day. No. 05-08-00146-CR, Greer vs. State. Well, first let me offer a racially neutral explanation for my post title. It's from Public Enemy's 1991 record, moving on.

Greer vs. State
Greer was tried for possessing cocaine (the real kind, not the banned energy drink), found guilty and sentenced to forty years. Greer appealed his conviction alleging Batson error.

The State and the Defendant each had 6 peremptory strikes to deselect the jury panel. The State used all 6 of their strikes on African American veniremembers. (I hate the word veniremembers. I always call them jurors, even though technically they aren't jurors until they are seated on the jury).

Greer's lawyer objected and raised a Batson Challenge, the trial court overruled this objection.

What's the law? From the decision

Batson entails a three-step analysis. The opponent of the peremptory strike bears the initial burden of making out a prima facie case of racial discrimination. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert. denied, 129 S. Ct. 92 (2008). If he carries this burden, the burden of production shifts to the proponent of the strike to come forward with a race-neutral reason for the strike. Id. If a race-neutral explanation is proffered, the trial court must then decide, as a question of fact, whether the opponent of the strike has proved by a preponderance of the evidence that the strike was a pretext for purposeful racial discrimination. Id. We skip the first step of the analysis if the trial court proceeded immediately to the second step by inquiring as to the striking party's race-neutral reasons. Id.

Until recently courts had a high tolerance for even the most patently absurd "racially neutral" justifications (length of hair etc). Here is what I remember from Con Law and prosecutor school; the State will survive a Batson challenge if the prosecutor can cite any reason for striking a juror besides "she's black". Anything, no matter how absurd, would suffice. Batson was effectively powerless, the Wade Phillips of constitutional protections.

Fortunately, SCOTUS corrected this error in 2008 in Snyder vs. Louisiana, holding that they would no longer accept the inane BS justifications put forward by the State.

Back to Greer's case. In Greer the State used all 6 of their strikes against African American jurors. What racially neutral reasons did they have?

I will admit these were better reasons than hair length. However, the defense lawyer did a great job pointing out that each reason given was not applied to a similarly situated white juror. Let's see this chess game in action.

From the opinion-

The State asserted that it struck Juror No. 2, an African-American, because she had family members who had been through the criminal justice system and because of her own bad experiences with police officers in the past. The State also relied on the fact that Juror No. 2 opined that rehabilitation of those convicted is the most important objective of “criminal justice punishment.” Greer argues that these reasons were pretextual, as shown by comparative juror analysis. We consider each of the State's reasons in turn.
First, the State explained that it struck Juror No. 2 (and Juror No. 31) because “each of these jurors had a family history-or history in their family of someone being through the criminal justice system either in jail or on probation or had-having been sent to the penitentiary.” This explanation was factually accurate; on her juror questionnaire, Juror No. 2 wrote that her brother-in-law had served jail time for burglary and that her husband had received probation for burglary. But as Greer points out, the State did not strike other non-African-American veniremembers who shared this characteristic. We focus in particular on Juror No. 7, a white woman who served on the jury. Juror No. 7 wrote on her questionnaire that her stepdaughter had served jail time for possession of a controlled substance. Yet, despite this similarity to Juror No. 2, the State did not strike Juror No. 7.

That's some fancy lawyerin'. Kudos. The State had a reason for each strike, but when that same logic was applied to a similar white juror it fell apart. The Dallas court notes that comparative juror analysis is the new rule for Batson cases.

The most recent precedents from the United States Supreme Court place heightened emphasis on juror comparisons of this kind. In Miller-El, the Court relied in part on such disparate treatment. 545 U.S. at 248 (“The fact that [the State's] reason also applied to other panel members, most of them white, none of them struck, is evidence of pretext.”)

Will this be appealed to the Court of Criminal Appeals? It seems ripe for PDR and my inner cynic fears a COCA reversal. Either way, it's good to see the Dallas court of appeals protecting the right of all veniremembers to serve on a jury.

The Flower Mound PD must have known I was short on blog material while at the RD conference. Thanks guys.

What happened? From DMN-

Last month, a Flower Mound man called police because he thought a group of teens were drinking at a neighbor's house. He knew the woman who lived there was out of town, and her 17-year-old son wasn't supposed to have friends in the house while she was gone.

When police arrived, the teen wouldn't open the door. So Flower Mound police came back, armed with a search warrant giving them authority to force their way into the house.

"The children wouldn't open the door even after we got a search warrant," Flower Mound Lt. Clay Pierce said. "So we got the fire department to use tools to spread open the door jamb."

First off, probable cause to enter a residence can't be based solely on the non cooperation of the residents. FM PD needed some articulable facts of criminal activity, which the author doesn't mention in this story. Maybe, I'll open records the warrant and post it.

Second, is the threat of a 17 year old drinking at a private residence so great we have to get a warrant and break the door down? For new readers, this is the part where I post the town's crime stats to highlight the waste of police resources. However, when I checked FM PD's April crime stats they only had 6 cases that were listed as active, the rest were cleared in some manner. Maybe FM PD does have enough free time to get a warrant and raid a teen party. Kudos.

Third, haven't we learned enough about the failures of abstinence only education? When did we decide that a teenager's perfect alcohol virginity must be protected at all costs? And that the police should raid houses to forward the cause of teen temperance? Maybe, just maybe, we should consider a fresh approach.

We encourage irresponsible and clandestine drinking operations by forbidding all young adult use. I don't know what the perfect system is, but a better system would be one that promoted responsible use and lowered the age at which an adult can legally consume alcohol.

The current system fails for the same reasons other abstinence programs fail. We aren't teaching children anything when we tell them to just say no. We only perpetuate juvenility when we forbid young adults the freedom and opportunity to learn how to make adult decisions.

Anyone who has been to Europe can attest that a legal drinking age under 21 does not destroy society. Unfortunately, in America our state governments traded their right to make these decisions for federal highway cash.

Finally, the cliche (but still appropriate) appeal against the immense hypocrisy of our drinking laws- at 18 you can be tried as an adult, join the army, vote, sign a lease, buy a car, buy a house, work in a strip club, smoke cigarrettes, but still these young adults are too immature to purchase or consume alcohol.

Send in the SWAT team.

I finally made it home from the Rusty Duncan advanced criminal law seminar. My wife and I spent 3 days in SA and stayed in Austin last night before returning to Ennis. I got more use out of my facebook iphone app in the last 4 days than I have in the last 6 months. The FB app allows for wonderfully simple travelogues. I would add a photo as I passed the Alamo, or ate dinner, or stopped at the Czech stop. I'm not sure how broad the appeal is of a 2MP photo of my wife at Casa Rio, my FB friends are probably hitting "hide" as we speak.

Those of you under 18 may not know this, but in the olden days of yore we used to take photos on an analog camera (it contained "film", not a Sans Disk), drop those off after the trip to be "processed", and then share them with friends. I often say that I feel like we are now in the future, and the FB/Iphone combo is one reason.

On Lodging-
RD is always held in San Antonio at the Henry B Gonzales convention center (which has somehow managed to stay in business without an attached taxpayer funded hotel, but I digress). I'm going to change my accomodation plans if I go next year. TCDLA always coordinates lodging at a a local hotel and has the non CLE social events there.

Being a gambler/skinflint I have always pricelined a room on the riverwalk. I've got some great rooms, and good rates. Next year, I'll probably book at the sponsored hotel and pay the premium. Two reasons-

First, RD is a combination seminar/class reunion/trade show/social gathering. The CLE is just a part of a broader experience. I could get CLE on line if I wanted to be a hermit. Being a solo attorney makes me appreciate these gatherings and I want to be closer to the herd next time.

Second, they pipe the CLE into your room at the official RD hotel. Having the seminar on my in room TV will greatly increase the chances I make the 8:30 presentations on time (see reason one).

Hopefully, a week off of writing has recharged my blogging battery. Back to work!

I'm leaving for the annual Rusty Duncan conference in San Antonio today. I am considering not blogging while out of town. So if you don't here from me until Monday it's because I'm on the riverwalk (I know it's a horrible cliche tourist trap, but we love it)

I always enjoy RD, it's good to see everyone and leave the office for a few days. Drop me a line if you'll be in town.

That's why restarting the system didn't work
I was told that a Dell repairmen would be at my office last Friday to fix my failure of a PC. It was nice of Dell to finally send someone yesterday to replace the optical drive.

What was the major malfunction? Upon removing the cover to my PC the tech guy noted that the optical drive was not connected to the motherboard. I'm not Bill Gates, but I assume that isn't a good thing. It's not like Dell spent a day testing my PC before shipment. Oh wait, they did.

Open Office
I had Word 2007 ready to install, but without an optical drive that wasn't an option. So I downloaded Open Office, a free office suite.

It took some getting used to but I grew to appreciate their word processor. I typed some motions (great) and downloaded some files from google docs (buggy). I was considering abandoning MS Office for good (I only use Word and Powerpoint anyway) until I emailed a client a motion and he couldn't open it. If you are willing to put with some bugs and limited compatibility the OO word processor is a great choice.

I tried the powerpoint alternative (Impress) but it just crashed over and over again. Not really a feature I'm looking for in a PP program.