Dallas Criminal Defense Lawyer Blog

You know what America needs, more people in jail on federal drug charges. Why limit the tyranny of cannabis prohibition to Americans? Let's spread Nixon's WOD all over the continent and import Canadians for incarceration! Hope and Change!

Our latest political prisoner in the war on weed is Marc Emery. Marc is a marijuana activist/cannabis seed distributor in Canada. Marc sells marijuana seeds and the Canadian government happily taxes the profits. Marc is the founder of the British Columbia Marijuana Party and a leader in the movement towards cannabis sanity in the Great White North. Marc was recently arrested in Canada, and is awating deportation to America to face a 5 year sentence on federal drug charges.

Marc is being prosecuted for sending cannabis seeds through the US mail. A google search will show you that there are a few dozen operations offering a similar service. Consensual crime enforcement is nothing if not arbitrary and capricious. When millions are breaking the law the government can pick and choose whom to prosecute. While Marc was arrested for conspiracy to distribute his real crime was being an advocate for cannabis reform. Nothing pisses of the DEA mutawas like political dissent.

Think your federal government is above using the criminal justice system to destroy free speecht? This isn't the first time, nor will it be the last.

The longer the recession goes on the more unfamiliar lawyers I see on Kaufman criminal cases. Here are a few quick tips for the noobs.

1. Your client always has to appear, with one exception (first setting in CC2). Kaufman isn't Dallas and a lawyer appearing sans client is not the norm.

In extreme/emergency situations you can it's possible to reset a case without a client present (think ER). However, you will want to call the court before the day of the hearing and bring some documentation of your client's situation.

2. OPEN FILES! Discovery is a breeze. Simply call the DA (972.932.4331 ext 4) and ask for discovery to be printed. Or send a rep letter/discovery request. Discovery will be left up front for you to pick. DVDs are $5.

3. Pass, Pass, Plea or Trial. In misdemeanor courts you generally get 2 passes and then you have to set the case for something dispositive (plea/trial/pre trial). Exceptions are usually made for misdemeanor cases with companion felonies.

4. Trial settings mean trial. In Dallas multiple trial settings are not uncommon. In Kaufman only 1-4 cases set for jury trial each week. The odds are very high that your case will go to trial on the first trial setting. Sometimes a reset will be necessary for the breath test operator etc, but don't count on it. If you want a continuance make sure and file a motion. If you don't have a witness available the judge may attach (arrest) that witness.

5. Pre trial diversion- In Dallas this is called a "memo agreement". Kaufman has a limited program (and much more difficult) for dismissing cases without the necessity of deferred probation. It's usually 6 months for a misdemeanor, or 1-2 years for a felony. PTD is a little different in each court so ask your prosecutor for details.

6. Docket days are important. Feel free to call, email, or visit your prosecutor during the week. However, it's common to discuss the case and plea offers in court.

7. Pleading a misdemeanor? BRING COURT COSTS. Your client is expected to pay 100% of their court costs on the day of the plea. If you can bring the fine and court costs sometimes community service hours will be cut, or the fine may be reduced. If your client can't pay on the day of the plea they MAY be given an additional 30 days to bring CC. If not they may be reset for another plea date.

8. Examining trials are pretty rare. It's hard to get them set quickly and if you do file for one your client will find himself indicted at the next grand jury.

9. Be on time, but know when on time is. Each court has it's own time for hearings. Felony courts are at 9:00 or 1:30. CC1 is 8:30 or 1:30. CC2 is 9:45 or 2:00pm. In the 86th you have to "sign in" to speak with the DA. If you don't get there early you may the 12th lawyer on the list and have to wait an hour to speak with Brian or Cameron.

10. Bond reductions- It's preferred that you ask your ADA for an agreed bond reduction before filing a motion to reduce bail. The first question a clerk will ask you when filing a writ or bond reduction is "Have you spoken with the DA about this?"

I know that you have every right to file a motion on behalf of your client, but this is local practice. Besides, more often than not (especially on state jail dope) you can get an agreed reduction with a plea rec thrown in for good measure.

11. BBQ or Mexican? Culinary options are quite limited in K-Town. Stevie's BBQ on the Square is my favorite (it's also ten yards from my office). There are a number of local Mexican restaurants, none of which are bad, most of which are good, so feel free to explore. South of 175 are the chains- McDonalds, Pizza Hut, Denny's and Chicken Express.

I take a few minutes each week to answer questions on AVVO. AVVO is an attorney review website that also allows the public to post questions for lawyers to answer. Back in pre AVVO days I had a regular feature alled "You search I answer" in which I would answer questions posed in Google searches. I have to admit AVVO is much more efficient, cutting out the Google middleman.

I can appreciate the public's desire for free answers to their criminal defense questions. Unfortunately, many criminal defense problems can't be solved within the limitations of AVVO. Ergo, one of my most common responses is "You need to hire experienced local counsel immediately".

Here are some common questions that I answer, without really answering-

"I've been charged with X, what kind of sentence will I get?"

Let's see. Without knowing the facts, court, prosecutor, legal issues, or your criminal history you want me to guess the outcome of a case based upon the charge? Really?

If I was that good I'd guess lottery numbers, not criminal case outcomes. A lawyer can't, and shouldn't guesstimate plea offers without a working knowledge of the facts, the legal issues, and the court/prosecutor.

I could quote the range of punishment and state that "You could get anything from the maximum sentence to a dismissal", such a large margin of error ensures 100% accuracy, but doesn't help defendants.

"I've been charged with DWI and offered ____. The facts of my case are as follows.... Should I take the state's plea offer?"

You should NEVER discuss the facts of your case on a public message board. It's a horrible (non privileged) idea. Prosecutors already search social networking sites for dirt. It's not outside the realm of possibility that your AVVO post could and would be used against you. Tread carefully online.

The frequency of "Should I take this deal" questions leads to me to believe that attorney/client communication is an area the defense bar needs to improve on. It may be that defendant's want a simple second opinion. Unfortunately there are no simple second opinions in criminal law.

What's the solution?
First, I don't want to overstate the problem. Many AVVO questions are answered with clear guidance for defendants. For example; questions on whether probation is possible in a certain case, or what the range of punishment is, or what the 5th Amendment means are frequently met with skilled responses.

What most AVVO questioners need is a free consultation; something that 99% of defense lawyers offer. The opportunity cost of a sit down interview with an attorney is much higher than posting a quick question online, but it's absolutely necessary for proper legal advice.

The power of Google has made my site prominent to victims of Public Intoxication citations. Despite Google's kind introduction very few of these defendants become clients.

My preference is to set ticket cases for trial and force the State to meet their burden. Unfortunately a ticket trial setting is an expensive endeavor. More expensive than simply requesting deferred and paying the ticket, or hiring the $65 ticket lawyer for a quick plea. I want treat these cases like a "real" criminal case- investigate the facts, pick a jury, cross examine the cop etc. I can't do those things for less than the cost of deferred probation (usually $200-$300).

Most defendants would rather take the sure dismissal with deferred than pay more to risk conviction at trial. I can't blame them. Ticket court is set up to maximize revenue, not achieve justice. Even though the vast majority of PI defendants are arrested and thrown in the drunk tank they have no right to court appointed counsel. It's another way we incarcerate without representation in Texas.

Justice often takes a back seat to finance and convenience. I'm still happy to discuss your PI case and offer my services. However, it's never cheaper or quicker to hire me to try your case. Until that changes, I may never become the PI fighting malfeasance exposing criminal defense super hero the public needs.

Pain patients (and providers) are yet another sacrifice to the angry jealous god of Prohibition. Reason.TV hits a home run detailing the ongoing tragedy of those with chronic pain. In order to "sent the right message" to kids we sentence millions of Americans to a lifetime of under treated, or untreated pain.

I was talking to a friend at the Kaufman courthouse who noted that I've won my last 3 DWI trials (2 bench/1 jury). Neither one of us could remember any attorney who had ever won 3 Kaufman county DWI trials in a row. I'm always proud to achieve my client's goals in criminal litigation (acquittal). However, my practice is geared toward clients, not stats.

I know that some attorneys prominently advertise their trial win percentage. The idea being that if Lawyer X wins 80% of their DWI trials then this lawyer has an 80% chance of beating your DWI. I applaud any attorney who can get a not guilty verdict from a jury. Too many defense lawyers strive to avoid trial at all costs.

In my experience lawyers who advertise a win % generally exercise great control over (cherry pick) which cases they will take to trial. Not me. The choice of whether or not to have a trial is always up to my client. If I was concerned with my W/L record I would accept only no breath test/good SFST DWI cases. I have chosen to go a different route. If I refuse to take a case it's not because the facts are bad.

I've had clients with high BAC scores who wanted to take a case to trial. That is always the client's choice. It's not my job to refuse a trial just because I'm afraid the client will be convicted. Any lawyer who tries DWI cases knows that even the most prepared, experienced, and knowledgeable defense lawyer can and will end up with a guilty verdict. It happens. Guilty verdicts are not always a sign the lawyer did a bad job, or is a sub par trial attorney.

My job is to explain the law, the facts, my experience in front of the judge/jury with similar cases and let the client make a decision on whether to set the case for trial. There are also financial considerations. I use a two part contract and charge a separate trial fee. My clients decide whether they want to invest in a trial or not.

I'm proud of my 3 DWI win streak, but I know some very capable attorneys who have gone on long DWI losing streaks (myself included). A lawyer's W/L trial stats alone do not always tell the whole story. There is a lawyer in my office in Kaufman, Dennis Jones, who is frequently appointed on the most serious felony cases. Many of Mr. Jones' appointed clients are convicted. Nevertheless, Dennis is viewed as one of the best defense lawyers in Kaufman county. I would not hesitate to recommend Mr. Jones and the judges never hesitate to appoint him. He's a great trial lawyer who happens to try really tough cases. Dennis can not cherry pick his appointed cases, and is often given chicken shit and ordered to make chicken salad.

Criminal defense isn't baseball. Some of us are pitching in the Ballpark in Arlington, others at Petco Park. Not that you should go looking for a lawyer who has never won a trial, but don't discount a lawyer who has lost a few.

I've seen a lot of drug cases and represented scores of drug defendants. The legal issues are generally the same- search and seizure, affirmative links, etc. What is always different is the defendant. Drug defendants can be broken down into three categories- addicts, users, and the innocent.

By far, addicts are the most difficult group to represent. Addicts can and do miss court dates (not to mention payments), pick up new cases, dress inappropriately (eg pajamas in court) and lack the mental stamina required for criminal litigation.

By definition addicts are short term thinkers. They see coming to court and worrying about their case as a problem with an easy solution- plead guilty and get probation.

Not so fast. Addicts make horrible probationers. State jails in Texas are a monument to the futility of putting addicts on probation and magically expecting behavior to change.

Probationers may hate their PO, hate doing community service, fall behind on payments, unable to find work, etc. Stress triggers drug use. Community supervision is stressful. Failing drug tests can often lead to a revocation hearing and/or incarceration. The road goes on forever, the party never ends.

I'm a criminal defense lawyer. I solve legal problems. Addiction is a medical issue that requires medical attention. I've had enough CLE on addiction (and viewed enough Intervention episodes) to know this is not an area I can personally assist clients. What I can and do recommend is that all clients with substance abuse issues seek treatment immediately.

The time between arrest and case disposition varies from county to county. In Dallas/Kaufman the average state jail dope case can take anywhere from a few months to nearly two years to finalize. I encourage all drug defendants (except the innocent non user) to use this time to address any addiction problem they may have.

Going to treatment is a win/win for drug defendants. I'm often asked if by defendants if they will "look guilty" if they seek help. My answer is always the same.

SEEKING TREATMENT WILL ONLY HELP YOUR CASE. It's a win/win for the defendant no matter how the case ends.

If your case is going to end in a plea bargain completing treatment helps. Part of plea bargaining is selling the defendant. If my client has completed treatment that will set him/her apart and often leads to better plea offers.

Unlike legal/factual problems which your defense lawyer may or may not share with the State (depending on the case/court/prosecutor the decision to divulge legal/factual issues must be carefully weighed) information about positive change in the defendant's life is always shared.

If your case goes to trial and you win, then completing treatment will help you avoid the rap, and the ride in the future. If your case goes to trial and you lose, then your defense lawyer can put on evidence (at the punishment hearing) that you are addressing your addiction problems head on, rather than waiting for the case to finalize. This can sway a judge/jury to grant a better sentence.

One of my favorite South Park episodes is Clubhouses. Stan decides to build a clubhouse so he can play truth or dare with his girlfriend Wendy. Chaos ensues (Ewok Village 5000, inter alia) but finally, by the end of the episode Stan is expecting to be "dared" to kiss Wendy.

Instead, Wendy dares Stan to "take this twig and jam it up your peehole." A shockingly typical SP ending.

Now replace Stan with the driving public, and Wendy with a MADD pyscho goon cop and you have the story of Jamie Lockard. From WLWT.com-

LAWRENCEBURG, Ind. -- An Indiana man has filed a lawsuit claiming that police forcibly withdrew blood and urine from his body during a drunken driving arrest, WLWT-TV reported.
According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.
A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.
Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.
Police said they obtained a warrant, but Lockard's attorney said his client was shackled to a gurney and had a catheter inserted against his will.
"It has to be executed reasonably," said attorney Doug Garner. "No one would say this is reasonable behavior. It's reprehensible that anyone could think that this is appropriate."
The blood test showed that Lockard's blood-alcohol level did not exceed Indiana's legal limit, police said.
Garner said the police officer did not apologize, but instead charged Lockard with obstruction of justice.
"He took it too far. He thought he could do whatever to me," Lockard said

Jamie was arrested for DWI and voluntarily gave a breath sample that showed he was under the legal limit. Undeterred village idiot/police officer Brian Miller went to his rubber stamp judge and got a warrant for Mr. Lockard's blood and urine.

Whereas a blood draw warrant allows the cops to hold you down and jam a needle in your arm, a urine warrant lets LEO put the force in forced catheterization.

The blood test also showed Mr. Lockard was not intoxicated. Mr. Lockward was released without charges and the police officer was suspended for this conduct.

Riiiight. Mr. Lockard was charged with "obstruction of justice" for having the audacity to protest the State's attempt to extract his urine. Such is our GITMO inspired war on DWI. DWI suspects, even the innocent ones, are still charged with something, while sadist cops roam the streets looking for new prey.

What's preventing this from happening in Texas? Nothing. At any time, any cop could get a FC warrant and start slant drilling on your privates.

Our appellate courts have fallen over themselves gutting your Constitutional protections to save DWI convictions. Your bodily fluids are merely "evidence" that can be seized at will by the State. All LEO needs is a fill in the blank search warrant faxed to a "friendly" judge and your blood, breath, and/or pee can be seized by the State.

It doesn't have to be this way. I've never, not once in my prosecutor/defense lawyer career seen a urine/bac case. Texans should demand that the urine be removed from the "alcohol concentration" definitions in the penal code.

The only use for DWI urine testing seems to be the torture of innocent drivers. I'm not expecting a groundswell of support for my "Free The Pee" campaign, but it's never to early to contact your representative.

Well that was quick. My wife and I (along with another couple) just got back from a 5 day Carnival cruise out of Galveston. I can't remember my Trip Advisor password so let me offer a quick review.

First, what I didn't like. Cruises are like day care for adults. You can literally quit thinking for 5 days and let the staff take care of you. Some people might enjoy a strict schedule and constant group activities. My wife and I have ample experience traveling Mexico and missed the freedom to explore on our own.

I would highly recommend a cruise for travelers with kids. One thing I didn't notice was children running wild over the boat. I learned that this trip had over 300 children on board. The Carnival staff did a marvelous job in loco parentis, kudos.

Second, I don't like "Fun Days At Sea", i.e. being trapped on a floating hotel with only four options-drink, gamble, eat, or sleep.

Gambling lost it's allure quickly. I was having awful luck at the casino. Ok, I took statistics in college. It wasn't luck. The casino did exactly what is was designed to do and I fell for it.

On eating- Cruises do not promote healthy eating habits. In my regular non sea faring life I have never found it necessary to eat a meal at midnight. Really, it never occurred to me that between dinner and breakfast you could fit another entire meal. However, on a cruise ship it seems normal, if not necessary, to eat a hot dog before going to sleep. Luckily, I packed a lot of tums.

If I was a gastric bypass surgeon I would sponsor the midnight buffet. That is your target audience. Until we got off the boat I was convinced this was not a cruise, but a human fois gras factory, and that we were headed for slaughter.

Enough complaining. I love Mexico and never have anything less than a great time south of the border. Our first stop was in Progresso. The beaches were beautiful and it had a more laid back feel than Cozumel/Cancun. Think Port Aransas vs. SPI.

I had never been to Progresso before but I'm hoping for a return trip. I only wish I had more that a few hours to explore the city. If you are on a cruise with limited time I would recommend skipping the private resorts and visiting the public beach. The public beach is close to the market and restaurants and looked like a great place to spend a day or five.

Our second stop was Cozumel which is one of my favorite places on Earth. The beach we visited included many floating amusements I had not experienced before. A short 20 yard swim from shore provided two trampolines, a giant slide, and an faux iceberg you could climb. It was like Wipeout Amateur Drunk edition. I can only surmise that personal injury lawsuits are much more limited in Mexico than here in the US.

I reported earlier that Mexico had decriminalized the possession of small quantities of drugs. What difference did this radical (by US standards) common sense measure have?

I can report that the tourist ports of Mexico are still geared toward mass alcohol consumption. I didn't see any crack dealers or strung out meth addicts. The only contraband I observed (by US standards) was the ubiquitous Cuban cigar. It may be too soon to tell but at least in the touristy parts of Mexico this small step towards ending Prohibition in Mexico has had no discernible effect.

I managed to not check my email for 3 days. I have to admit that even though I complained about the limitations and structure of cruising, it did keep me from working and/or thinking about work for 72 hours.

At first I was perturbed that the boat didn't have in cabin Wifi. But not being able to use my laptop helped me focus on not working. I watched the new Star Trek film (two thumbs up, and I'm no Trekkie), and spent time enjoying the company of my wife and friends. I have been glued to technology since I opened my practice and I realize how detrimental the tethering of email can be to one's personal life. It's hard to really enjoy anything when you are always on call, waiting for the next email.

Don't get me wrong, it's good to be back and I enjoy my usual routine. I know my clients have urgent matters that demand immediate attention. However, 5 days of not defending anyone will make a better lawyer in the long run. Not being able to blog/email/work on cases makes me want to blog/email/work on cases. Vacations are not a luxury when you are self employed. Rather, vacations are a mental health necessity.

If you have been a juror for a criminal trial in Texas and would like to share your experience please email me (robertATrobertguestDOTcom) or answer in the comments.

1. What was the offense?
2. What was the verdict/punishment?
3. What swayed the jury during deliberations?
4. What did the State's attorneys do/say that was most/least effective?
5. What did the defense lawyer do/say that was most least effective?
6. Any advise for defense lawyers on how we can do better?
7. Anything else?

I know enough about me and what I think is important during trial. Tell me more about you.