Dallas Criminal Defense Lawyer Blog

Mother Jones writes an alarming expose on the abusive police tactics used in PI arrests. As part of their story they quoted an expert on the subject, yours truly. From Mother Jones-

State courts have not only upheld the practice but expanded the definition of public intoxication to cover pretty much any situation, says Robert Guest, a criminal defense attorney in Dallas. "Having no standard allows the police to arrest whoever pisses them off and call it PI," he says, adding, "If you have a violent, homophobic, or just an asshole of a cop and you give him the arbitrary power to arrest anyone for PI, you can expect violent, homophobic, and asshole-ic behavior."

I'm going to trademark the word asshole-ic(TM). I'm pretty sure that's an RG original. Enough about me. Let's talk about PI.

Besides the violent homophobia on display in the TABC rainbow club raid PI arrests are also used to arrest minorities en masse. Texas law forbids racial profiling, but creative cops and pro state appellate decisions have rendered profiling unecessary. Want to arrest large numbers of brown people and check their immigration papers? Just call it PI and have at it.

From MJ-

According to a recent report by sociology and law professors at the University of California-Berkeley, the Dallas suburb of Irving has used "discretionary" public intoxication arrests to fish for undocumented immigrants. After partnering with federal immigration officials in 2006 to check local prisoners' residency status, Irving police increased the number of Latinos they nicked for PI and other Class C misdemeanors by 150 percent, while arrests of whites and African Americans for those offenses fell. The Mexican consul issued an advisory telling migrants to avoid Irving. "In this city, one has to be extra careful," he told a Spanish-language newspaper. "They were clearly choosing to bring more Hispanics into jail," says Aarti Kohli, coauthor of the Berkeley study. But the feds and local officials hailed the PI sweeps as a victory. Immigration "is expanding this program, saying, 'Isn't this great?'" Kohli says. "But the question they're not asking is: How are these people getting put into jail?"

Yes, that is an SEO friendly title and I know the blog world looks down on self promotion, but I can't help it. I'm proud of this accomplishment and I'm going to toot my own horn for a bit.

If you want something substantive on criminal justice try this excellent Grits post about hatchet man John Bradley's cover up work on the Forensic Science Commission.

Not guilty, ya'll got to feel me
Since 1/1/09 I've had 4 DWI trials in Kaufman county. The breakdown-two bench trials, two jury trials, two without a breath test, two with a breath sample (both over .15), two in CC2, two in County Court at law. The cases varied factually but united in outcome- not guilty. Four acquittals with one directed verdict.

80%
What makes this streak noteworthy is the talent at the Kaufman DAs office. Simply put, these prosecutors prosecute very well.

Kaufman misdemeanor prosecutors had an 80% jury trial conviction rate in 2008-2009. 4 out of 5 times the State left a misdemeanor jury trial with a conviction. To compare- the 2009 Yankees only won 63% of their games, the 2009 Lakers won 79% of the time. These are the Globetrotters, not the Generals.

No logistical wins
I didn't win any of these cases because the cop didn't show up, or the breath test guy couldn't be there. In each case the State had their witnesses show up and testify that they thought my client was DWI.

Why write about this?
Why not? I want google to know that I've been doing some good work for my clients. This may come across as scoreboarding, but if the sign of a good DA is conviction rates, then my DWI acquittal rate is noteworthy.

Is that all?
In the interest of full disclosure I did have two non DWI trials in the last year in which my client was convicted. I'm not ashamed to admit that. Part of being a trial lawyer is having things go to the other way. Streaks and stats don't always tell the whole story as each case is statistically independent in a gambler's fallacy sort of way. That's another of saying I'm not "due" to lose, but past results do not guarantee future performance.

The GOP primary is nigh upon Kaufman county. Voters have three Republican candidates to consider for District Attorney. With no Democrat or Libertarian candidates the primary is the defacto election. Let's look at the two candidates I feel qualified to discuss.

Rick Harrison (incumbent)
When Rick won the GOP primary four years ago things were much different in K-town. The atmosphere at the courthouse was one of distrust and hostility. There was conflict for the sake of conflict; defendants and taxpayers suffered as a result. Court appointed fees for lawyers were setting records, the county jail was full, and a backlog tsunami of criminal cases was building. I don't want to spend a lot of time rehashing the past; it's fair to say that the courthouse square was ready for some hope and change.

At the time of his election all I knew about Rick was that he was a bad ass trial lawyer from Dallas who had a prior DWI conviction. Reforming a flawed bureaucracy is no easy task. Much like steering the Titanic after you hit the iceberg. How would Rick's skills translate into turning around the Kaufman DA? I'm happy to report that out of the chaos Mr. Harrison has created a professional and efficient office.. What's so different? Where to start?

Rick was the first DA to allow email between prosecutors and defense lawyers. Believe it or not as recently as 2006 defense lawyers could not communicate with prosecutors via email. When I was a Kaufman ADA every communication with the defense required a personal meeting, fax, phone call, or letter. The policy created an artificial bottleneck on cases with no benefit. Defendants sat in jail unnecessarily while the lawyers played phone tag.

Mr. Harrison also implemented a real open file policy in which defense lawyers are given police reports/videos simply by asking. As a defense lawyer I can't overstate how vital a robust open file policy is.

Transparency prevents injustice and helps exonerate the wrongfully arrested, while also concinving the reluctant to consider pleading guilty. It's a win/win. That policy, and the strength of his ADAs has led to a 100% felony conviction rate since Mr. Harrison took office.

The pre trial diversion program is another success story. PTD allows the youthful offender a chance to avoid a permanent record after a period of supervision. Most defendants (and unfortunately some defense lawyers) don't realize that even deferred probation leaves a permanent criminal record. PTD gives deserving defendants a second chance while allowing prosecutors to focus on more important cases.

The question of this race is not job performance, but if the Kaufman electorate will forgive Mr. Harrison for his recent arrest. I have not blogged much about Rick's DWI 2nd arrest and I won't speculate on the merits of the case. Instead let's look at some broader issues.

Mr. Harrison has not been convicted of DWI 2nd, only arrested (case is still pending in Dallas county). My first thought is- will voters appreciate that distinction? I'm sure some do, but the comments on other websites lead me to believe many voters have already convicted Mr. Harrison.

What does exactly does DWI, or DWI 2nd say about a person? Does drinking and driving make one untrustworthy, or less qualified for office? Before you answer consider that Dick Cheney had two DWIs, his boss W had one.

DWI is a crime that most people have committed, will commit, or are going to commit in the future. I'm never surprised when a Kaufman resident gets arrested for DWI. The exurban sprawl development, lack of public transportation, and inability to walk anywhere create a situation where Kaufman residents who drink have little choice but to drink and drive. You could hardly design a better system to maximize DWI.

Of all my clients DWI (and cannabis) defendants are the least "criminal" and most "normal" people I represent. DWI arrestees come from all walks of life. These aren't bad people, they just won the unlucky DWI enforcement lottery. I've never seen a DWI arrest as a moral failing. It's a dangerous choice to drink and drive, not something I would consider malum in se.

I recognize that as a Libertarian criminal defense lawyer I probably have a different moral compass than the traditional Kaufman county GOP primary voter. I'm sure those who enjoy simple dichotomies in life (arrest= BAD MAN!, no arrest= GOOD!) will hold this arrest against Mr. Harrison. Rick may have made a mistake but his integrity, honesty, and ability to run the Kaufman DAs office should not be in question.

Andrew Jordan
Full disclosure requires that I consider Mr. Jordan a friend as well as a trusted colleague. While we both graduated Texas Tech law school the same year I didn't really know Andrew until I started prosecuting in Kaufman. I've worked with, and against Andrew on cases and he is an excellent attorney.

Much has been made of Andrew's trial experience. I've been on the working end of an Andrew Jordan defense in a criminal case. He may not be the most experienced trial lawyer in the DA's race, but make no mistake, Andrew can try a case. He's good with the jury, handles pressure very well, and does some good legal research.

Mr. Jordan is currently the Chief Public Defender for Kaufman county. Whereas Mr. Harrison took over a bad situation, Andrew took over nothing. Out of this vacuum Andrew invented the Kaufman Public Defender's office. Through Mr. Jordan's leadership and hard work this has become one of the best PDs ofice in the state.

I know how tough it can be to run a PD office. I was a public defender (Wichita County) for about ten minutes out of law school and can't say I miss the atmosphere. Being a public defender is a thankless job with difficult clients who are often plagued by mental illness, disease, and/or addiction. Defendants can be outright hostile when they find out the "public pretender" (as I was often called) is on the case.

There are political pressures as well. The powers that be often look at one number to determine how successful a PD office is- indigent defense expenditures. Efficiency demands can create moral hazard for a PD's office. It's always cheaper to plead everyone guilty and move on.

I'm proud to report that I've never seen anything less than zealous representation from the Kaufman PD. These guys are good, they get good results, and they work hard for their clients. I credit Andrew for striking that delicate balance and managing not only his office and his clients, but the political pressures PDs face. Kudos.

Andrew bested this logistical Everest and has created a model office Kaufman voters should be proud of. I have no doubt that if elected, this experience will be invaluable as District Attorney.

Nothing is more unjust, however common, than to charge with hypocrisy him that expresses zeal for those virtues which he neglects to practice; since he may be sincerely convinced of the advantages of conquering his passions, without having yet obtained the victory, as a man may be confident of the advantages of a voyage, or a journey, without having courage or industry to undertake it, and may honestly recommend to others, those attempts which he neglects himself

Samuel Johnson

I was in a band in law school and we penned a few original tunes to mix in with our Pat Green/CCR covers. Blogging is a lot like song writing. Some posts and songs require a lot of research, editing, and inspiration. Some just fall in your lap. Today's post arrived with the force of back to back lap dances from the Biggest Loser crew.

Here is a quote, from Rick Perry's hatchet man/Wilco DA John Bradley. The thread was about a judge who balked at the State's obstructionism and insistence on a jury trial in Collin County.

i'm bothered by the judge's complete lack of respect for the right of the State to a jury trial. The judge has no business publicly commenting, particularly before trial, as to merits of a prosecutor's decision. It shows a clear bias in the case before anything has even happened. It also shows ignorance of the law (or perhaps willful indifference to enforcement of the law).

JB comes about against judges publicly commenting on a prosecutor's decision. Wouldn't it be the height of hypocrisy for JB to public comment on a judge's decision? I mean, what kind of person would say it's wrong for a judge to do something, and then do it himself? Hmmmm.....

Here is a JB quote, barely a week old, made after a judge hesitated to award a 25 year sentence for a DWI case. The judge eventually sentence the defendant to 25 years, but JB was mad because the judge actually took the time to voice concern over our State draconian punishment ranges.

Bradley said the judge showed bias against the sentences handed out in Williamson County.

"The justice in this case became dependent upon geography," Bradley said. "He came to this county, I think, with a prejudice against the sort of sentencing that occurs in Williamson County

Teh hypocrisy doesn't end there. JB's crew actually offered this same defendant 25 years!

Feathers' attorney Sara Naylor said prosecutors offered a 25 year sentence in exchange for a guilty plea. Bradley said he didn't know the details of the rejected plea offer.

My brain is about to explode from cognitive dissonance.

For those keeping score here is the JB moral compass.

25 year sentence from plea bargain offered by Wilco DA = Good.
25 year sentence from concerned judge = Bad.

Judge speaking out against prosecutor = Bad
Wilco DA speaking out against judge = Good.

Good stuff from Reason.TV. Whenever our government masters want more control over our bodies they send out the addiction boogeyman. In reality, addiction hype is just another trojan horse whereby our government offers the convenient liberty for safety trade.

Should the government ban effective pain mediations like Vicodin? Watch this before you decide.

This is a tough economy and many clients need until the last minute to come up with legal fees. No one plans on needing a criminal defense lawyer and even career criminals don't keep a defense lawyer fund handy. Ergo, it is not uncommon for a client to retain my services the morning of their court appearance.

In Kaufman, I have often met clients the morning of an announcement at my office, signed them up as a client, and then passed their case and requested discovery. This scenario is convenient for the client since they don't have to schedule an extra trip to my office and it gives them extra time to save money.

I have discovered one flaw in this last minute approach- it leaves little time for conflict checks. That led to my professional responsibility emergency this morning.

First, some background. I had two potential clients who were going to retain my services this morning for a court appearance at 9AM. By retain, I mean come in and make their first payment and sign a contract so I could start their case.

I met Client A yesterday for a brief consultation, and another I discussed the case with Client B via phone last week. They both dutifully appeared this morning in my office about 15 minutes apart and became (briefly) clients of Guest Law Firm PC.

I told each to meet me in the courtroom. I arrived in court and was reading the State's file on Client A when I realized I had just signed up two co defendants. Not only that, but the classic MPRE red flag two-people-in-the-same-car possession co defendants.

What's the rule on conflict in Texas?

Rule 1.06 Conflict of Interest: General Rule

(a) A lawyer shall not represent opposing parties to the same litigation.

(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which that person's interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer's firm; or

I quickly explained the situation to my soon to be ex clients and told them I would refund any payment and forever keep our conversations private. If they wanted a referral I would be glad to assist, but I could not take either case. 1.06 does allow representation of conflicted parties if the parties are made aware and consent. I didn't go that route, but here is the rule.

(c) A lawyer may represent a client in the circumstances described in (b) if:

(1) the lawyer reasonably believes the representation of each client will not be materially affected; and

(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.

(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Dropping two cases in one docket was bound to generate some debate among the lawyers present. One attorney advised I could keep one client and add a disclaimer to the contract. I dissented. I felt keeping either case was improper, even with consent of the parties.

I believe that having discussed the case with both parties I would have an unfair advantage should this case go to trial and/or should one party implicate the other. I believe this met the definition of "materially affected" in (2). In a co defendant possession case the classic defense is- "The drugs belong to X, not me." There is simply no way to disclaim/notify your way out of that scenario. It's a conflict, withdraw and move on.

A prosecutor in the courtroom agreed with my decision and stated that "You can always get two more clients, but if you lose your ticket (law license) you won't get anymore clients." That's a great line, I'm going to borrow that.

I have no doubt that some defense lawyers would stay on as counsel in a similar situation. Why? Ignorance of the ethical rules, knowledge that the odds of enforcement are low, and the economic reality that losing two fees at once really sucks in this economy.