Dallas Criminal Defense Lawyer Blog

I spent the morning at the State Office of Administrative Hearings in Dallas. SOAH is where all live Dallas ALR hearings are held. You can also request a telephone hearing. Ceteris paribus, I prefer a live hearing. A live cross examination contains more useful information than one by phone.

What is an ALR hearing?
ALR stands for Administrative License Revocation hearing. These hearings are triggered when you are arrested for DWI. Refusing, or failing a breath/blood test allows the State to suspend your license. If you request an ALR hearing your attorney can challenge the suspension and by association, your DWI arrest itself. These hearings are held separately from any criminal case. Winning at the ALR has no effect on a later criminal case.

YOU MUST REQUEST THIS HEARING WITHIN 15 DAYS OF BEING ARRESTED!!

My Morning
The hearing notice lists 8:30AM as the start time. However, like many court proceedings 8:30 is more of an idea than a reality since many cases are all set at 8:30. While waiting in the lobby I overheard a few officer discussing the monotony of these hearings. "The lawyers ruined it" one officer remarked.

"Ruined what?" I thought. Is Due Process really such an inconvenience? This statement was telling about how the government views rights and liberty- as a frivolous impediment from the glorious work of DWI enforcement. TDCAA message boards echo this sentiment.

ALR hearings are not held in a courtroom. They are held in a small conference room at SOAH. These hearings are open to the public. Many people are surprised to learn that they can watch almost any court proceeding. I enjoy watching different lawyers approach the same problem.

My Hearing
I had an interesting case with some unique facts. However, I generally don't blog about pending cases. I will say that at any ALR hearing the burden is on the State to prove that the defendant (respondent) was legally stopped and asked for a specimen, and the defendant refused or failed said request. I believe one of these elements was missing. Hopefully, the judge will agree.

Until yesterday I had never viewed any of A&E's Dallas SWAT reality show. Last night I caught about 15 minutes of one episode. This 1/4 hour of television showed much of what is wrong with law enforcement. Here is what went down on Dallas SWAT.

Home Invasion Search
The SWAT team was preparing to arrest a woman on an outstanding drug warrant. The house was known to have children inside. SWAT members formulated a plan to rip the door off the house and storm the residence.

A&E showed only a few minutes of home invasion raid preparation. SWAT members discuss how best to rip the door off, where Alpha/Brave/Charlie team should be, and what to do when they find the kinds. No one proposes that maybe, just maybe, ripping the door off house full of children and sending a militarized police force is not the best idea.

Most people I know eventually leave their residence. Why not just wait for this suspect to leave then arrest her? This wait and arrest approach is not as ecxiting as the Rainbow Six approach. But why create a dangerous situation where none exists? Yet another example of the shift from Peace Officers to Law Enforcement. It appears that having a SWAT team obligates SWAT home invasion raids.

A Better Use for SWAT
I also caught an appropriate use of the Dallas SWAT team. A man was in his apartment and threatening to kill himself. He had a gun and may have shot at officers (I missed the beginning). The police used tear gas, and sent in a team to apprehend a disturbed and violent man. Stopping those who pose an immediate threat to the public is a much better strategy than creating threats by storming houses.

Johnny Baker- Cosmic Irony Strikes Back
Finally, the show also contained a segment of Officer Johnny Baker and his love of motorcycle riding. Officer Baker spoke about how much he enjoyed the rush of dangerous SWAT work.

What escaped Officer Baker at that moment was the cosmic irony of his alleged enjoyment of commercial sex services.
Officer Baker was later fired. Consensual crime enforcement giveth Officer Baker a job, consensual crime enforcement taketh away.

I had a ticket case in Dallas today. If you get a ticket from the City of Dallas you are sent to the Dallas Municipal Court. The court is located downtown at 2014 W Main.

I needed to work out a traffic violation with the prosecutor. Sounds easy enough. However, going to an unfamiliar court and learning the process is always an experience. Here is how I spent the morning at the Dallas Muni Court.

First I went to the main information desk. A very friendly employee informed me that I needed to visit "Station 11" to "register". Station 11 is not as impressive as it sounds. S11 is a walk up window with an "11" placard dangling from the ceiling.

Registration was fairly simple. I handed another very nice employee my bar card and driver's license. My information was entered, I signed some form, and was then issued my own municipal court ID number. I may also have received a concealed handgun license, I'm not sure.

Next, I went in search of a prosecutor. I found my courtroom and met a very helpful city attorney. We discussed the case and agreed on a resolution.

Since my case was not on the docket I was told I needed to "print the screen" for my case. I was sent upstairs to find what has to the oldest working computer in Texas. It looked like a Dharma Initiative computer from Lost. It even had that 80's computer staple, the green and black screen. Actually using this public computer felt as sanitary as typing on a public toilet. However, my client needed me to be brave, so I pressed forward.

Here is how to use the Dallas Muni Ticket Computer.

1. Hit the "Clear" button to start a new search. (No "clear" key on my work computer, apparently clearing was the was the killer app in 1982).
2. Type "MN/F" then the defendant's name. (Sometimes, a list will appear with similar names, if not then the Global Thermo Nuclear War program starts).
3. Hit return to scroll down to find said name. (I couldn't figure out how to scroll up).
4. Recite an ancient bureaucratic incantation to get the computer to print.
5. When you are finished hit "clear" again.
6. Immediately begin antibiotic treatment.

I was informed the printer wasn't working. This was disappointing since a tractor wheel dot matrix printer brings back great memories. Again, a very friendly and helpful employee printed the screen from her computer (a much faster and cleaner Dell).

I took this printout back to the courtroom. The prosecutor (again very helpful) filled out the plea papers and the judge approved our agreement. I was then told to take these forms to the "Attorney's Window". The Attorney's Window is window 4, obviously. I approached window 4 and... no one was there. Luckily, the teller showed up in a few minutes. I handed her my paperwork, she took a few pages and gave a few back. Mission accomplished.

Dallas County District Attorney Craig Watkins is Texas' best DA when it comes to seeking out wrongful convictions. Mr. Watkins exoneration work has uncovered a startling trend- many wrongful convictions involve prosecutors who purposefully hid evidence from the defense.

Mr. Watkins proposes criminal and state bar sanctions for prosecutors who hide evidence to convict the innocent. This proposal has generated some wonderful debate on the issue from TDCAA, Grits for Breakfast, Bryan Attorney Steven Gustistis, Simple Justice.

Texas law limits discovery in criminal cases. However, the Constitution requires prosecutors to turn over "Brady Material". Brady material consists of exculpatory or impeaching information that is material to the guilt or innocence or to the punishment of a defendant.

Despite this requirement some prosecutors have hidden Brady Material to seek convictions, assuring that justice will not be done. Mr. Watkins proposes that prosecutors who intentionally send the innocent to prison be held responsible.

Williamson County District Attorney John Bradley thinks such a measure is "overreacting." Mr. Bradley has no program to free the innocent is his county.

A seemingly confused prosecutor Stacey Brownee from Longview posted this on the TDCAA message board.

I've got no problem with something like this (bar sanctions not criminalization) as long as its not just for prosecutors but for the defense too. If its the truth we are looking for, let's get to the REAL truth !!

Stacey does not understand the danger in hiding Brady Material has nothing to do with finding the REAL truth, or with defense lawyers. Defense lawyers have no duty to provide evidence for the State. Defense attorneys represent the accused and the rights of all accused.

The purpose of criminal trials in the United States is not to find the "truth", REAL or otherwise. American criminal justice is an adversarial system where the State has the burden of proof. "Seeking the truth" is for Inquisitorial Systems of criminal justice.

When we incarcerate the innocent we destroy the legitimacy of the criminal justice system. We need criminal/bar sanctions for this conduct now more than ever. The more freedoms, privacy rights, and Constitutional protections we strip away, the more innocent defendants end up in jail. Texas prosecutors have unfettered power to arrest, charge, and try cases. That power should come with the responsibility not to break the law, or hide Brady material.

We need sanctions only for intentional conduct. If we can jail Texans for failing to wear a seat belt, smoking pot, or playing poker then we surely can jail those who put purposefully put innocent men and women behind bars.

UPDATE- I have been following the great debate on this issue in the TDCAA forum. First of all, I have never experienced a situation where Brady material was denied. Like all problems, I'm sure prosecutor hiding Brady material is limited to a small minority. Second, the prosecutors on TDCAA really seem to hate the idea of extending discovery rights in Texas. For example, mutual discovery etc is mentioned. As if defense lawyers should become fact finding agents for the State.

Texas does need to modernize our discovery laws to reflect a new reality; privacy rights, 4th/5th/6th amendment rights are reaching new lows. The only way to avoid wrongful convictions in the future is a robust discovery process that gives defendants access to the information that can prove their innocence.

Today's DMN has a shocking story. Dallas Auto Theft Task Force agents knew that one of their snitches was going to rob a tractor trailer with $1m in cigarettes. The police, not wanting to ruin their important investigation, told no one.

This robbery took place in Waxahachie, in Ellis County. From DMN-

When several men broke into a Waxahachie truck terminal last October, tied up a security guard at gun point and crashed a semi-trailer loaded with $1 million in cigarettes through the front gate, they didn’t know one of them was a snitch for the Dallas County Sheriff’s Department.

A sheriff’s detective who was in contact with the informant that night said he didn’t know the crime would turn into an armed robbery. But the informant was surprised to be arrested months later, saying the detective knew for weeks what he was planning.

The Sheriff’s Department launched an internal investigation of its auto theft task force after local police officers complained that the detective hid key information from them to protect his informant.

That investigation cleared task force officers of any wrongdoing..

Task force detectives knew days in advance that the truck heist was going down at the Celadon trucking terminal in Waxahachie. They did not intervene and, in fact, weren’t even at the scene.

The investigation cleared task force officers of any wrongdoing. Why am I not suprised?

What would motivate law enforcement to allow crime? Bureaucrats are predictabty self interested actors. Government always acts to serve its own interest, not those of the public. This Auto Task Force wanted to bust a car theft ring, not prevent armed robberies.

Snitches are a disgusting reality of law enforcement. They pollute the integrity of the system. Snitches are most prevelant in drug cases. Someday Texas will ban police collusion with criminals. Until then, don't count on the Dallas Sheriff to protect you from their snitches.
Make sure a read the whole article for a great quote by
Grit's own Scott Henson. It's good to see that Mr. Henson is recognized as the expert on Texas snitches. Way to go Scott!

Finally, thanks to Terrence who pointed out this was a trailer robbery, not an armored car heist. I got my google reader stories mixed up. Sorry for any confusion.

DMN reports that Dallas County Criminal courts have a growing backlog of felony cases.. Even with the addition of two new felony courts in 2005 the number of pending cases is still growing each year. DMN estimates there are 24,126 pending felony cases in Dallas.

What could possibly cause such a huge growing backlog of felony cases? Hmmm.... DMN explores.

The reasons given for this vary, depending on whom you ask. The local criminal justice system has many parts, and defense lawyers and prosecutors can contribute to slow-moving cases. Some cases are more complex and difficult than others, and thus take longer to try. But judges play a big role, too – for example, in the speed with which they hear motions and make decisions.

All the statements in that paragraph are true. However, the real reason cases are backed up in Dallas is.... you guessed it- PROHIBITION!

From 1998 to 2001, Dallas County felony judges disposed of more cases than were filed. But that trend reversed in 2002, the same year former District Attorney Bill Hill's new policy began requiring testing of drug evidence before cases are filed.

Here is how the War on Drugs makes Dallas less safe.
1. First, Making Drugs Illegal Corrupts Law Enforcement. In 2001, Dallas Police were caught using fake drugs and snitches to convict the innocent. Ergo, now all drugs are tested in Dallas County. This testing takes substantial time and resources.
2. Second, Making Drugs Illegal Does Not Eliminate Demand. Despite years of "Just Say No" propaganda Dallasites still want to get high. Drug users are not very hard to arrest. Those arrests lead to hundreds of useless prosecutions annually.
3.Finally, Opportunity Costs Exist. Prosecutors working on possession cases can not work on murders, rapes, assault, theft, burglary of a residence etc.

The Result- Drug cases clog the criminal justice system while real crimes go without justice. Expanding capacity with more courts is not slowing the tide. The real tragedy is that not all felonies are created equal. Drug Possession/Distribution and Sexual Assault are both serious felony offenses in Texas. Both require substantial resources, tax dollars, and court time. Which do you want prosecuted in Dallas? Both? Then you better be prepared to wait for justice.

Here are some other posts on the Opportunity Costs of Prohibition-

Kaufman County Opportunity Costs-
Opportunity Costs and Crime Clearance

Opportunity Costs and Child Molesters

Dallas Police teamed up with federal ICE agents to raid Latino nightclubs over the weekend. 50 illegal immigrants were arrested. It is unclear if any had a record. 4 guns were recovered.

What were these illegal immigrants doing that posed such a threat to Dallasites? Working... as security guards... at nightclubs. Hit the xeno panic alarm!! Mexicans are coming to take our bouncer jobs!! Mr. Watkins proudly sums up the operation with this quote-

"Hopefully, this operation will help us send a message that we will not tolerate the falsification of documents for undocumented aliens under the guise of providing security," Dallas County District Attorney Craig Watkins said.

Of all the messages government tries to send that has to be one of the most confusing. The real message seems to be even "progressive" politicians will seek PR stunt victories over the politically powerless.

Craig, here is a message from Wikipedia. Dallas ranks number 1 for violent crime among large US cities. I doubt that illegal immigrant bouncer raids are going to reverse that trend.

A lot of good things have come out of the Craig Watkins administration. From innocence projects to smart on crime tactics his tenure has a been a welcome change. Is it troubling to see Mr. Watkins on board with the current xeno hysteria.

On a side note- I believe that free trade is a plus for society. Goods and labor should not be artificially impeded by government. Immigration is only a problem because our federal government created an artificial barrier. The fear of illegal immigration is great for ratings and votes. However, we betray our own country's heritage when we deny opportunity and freedom to immigrants.

The Dallas Police Ticket Scandal finally reached a conclusion with the firing of three officers and the suspension of one. The officers wrote false information on tickets. These tickets turned into warrants which led to the arrest of innocent defendants.

What was the police officer's defense? Those falsely arrested were poor.

"None of these charges merit termination at all,'' {Attorney] David Schiller said. "These are excellent officers who were out there every day working with the lowest common denominator ... in an area that needed enforcement."

My question- Why are no criminal charges being pursued? If we know the police filed false government documents they should be prosecuted. Craig Watkins could do a lot worse than spend time prosecuting corrupt police.

This is why we need the right to privacy, the right to not be stopped without cause, or the right to not be arrested on Class C misdemeanors- because without freedom we have no protection against government criminals.

DMN Letter
The Dallas Morning News Published a letter I sent on the Dallas Cell Phone Ban. IWTS readers will recognize it as an earlier post.

Simple Justice- Cell Phone Kills Children.
Here is a debate I had with Simple Justice's Scott Greenfield. It's an interesting read. I think it shows how fear can lead us to give up our freedom. Scott believes this law will keep me from killing his children while driving. I believe it's more nanny state nonsense.

To Summarize the arguments-
Scott G.
What telephone call is so critical that it worth someone dying for?

Robert G,
Can you tell me what the ratio is of phone calls while driving to accidents?
At that ratio/percentage, how are cell phone in cars not safe?

Scott G.
I need a government that keeps you from killing me or my family by engaging in conduct that is dangerous to me, needless to you, and simply something that you would prefer to do rather than not.

Robert G.
Your justification for the cell phone laws(keeping your family safe), is the same as other failed policies. Positive rights lead to tyranny. Your fear about children dying is the same fear that keeps drugs illegal.

The Dallas Observer has a good story on the success of private security cameras installed in an East Dallas neighborhood. Richland Park estates has a voluntary neighborhood watch program that pays for the maintenance of a video monitoring system. This program has reduced crime dramatically.

These residents already send thousands of dollars in taxes to the Dallas police each year. Why are private security cameras necessary?

Opportunity Costs are really real
I keep saying that opportunity costs are real. Every drug arrest, poker raid, speed trap etc- keeps the police from preventing real crime. If these East Dallas residents could choose law enforcement priorities they would probably ask for more home invasion robbery prevention, and less pot and poker arrests.

State vs. Private Crime Prevention
This is a classic case of an unresponsive government agency failing to meet the needs of the citizenry. Crime prevention is a service. The Dallas Police are the government providers of crime prevention. DPD has their own priorities- fighting the drug war, writing tickets, poker prevention etc. This agenda is formed through the political process. Those without political power can not influence how the police disperse law enforcement resources. Political minority and individual demands for law enforcement are ignored. Ergo, East Dallas residents turn to the market to solve their problems.

What happens when the citizens gain the political power to manipulate the police agenda? In cities like Seattle, Portland, Oakland, and Denver the voters made marijuana arrests the "lowest law enforcement priority."

Dallas citizens needs a more responsive police department. Neighborhoods should be free to choose how their tax dollars are spent. Until then, we have citizens paying twice for crime prevention.

A quick recap- Tray Boswell was arrested by the Plano Police for Driving While Intoxicated. Tray's Attorney, Don Tittle, overcame Texas' incredibly limited discovery laws to find out that the arresting officers had been in contact with Tray's ex wife before, during, and after the arrest of Mr. Boswell.

Here is the Tray Boswell DWI Case Report. Sadly, it looks like all other police reports. I wonder how many of these phony DWI cases are never detected?

Pre Text Stops
Pre Text stops in Texas are legal. What is a pre text stop? If a cops wants to search or arrest you, but can not get a warrant, she is allowed to follow you while you drive until you commit any traffic violation. Then the officer may search, arrest, etc.

No other benign act does more to destory your rights than driving. In Texas, you can be arrested for almost any class C misdemeanor (even though class C misdemeanor do NOT allow incarceration as a punishment). Tray was pulled over for not having a front license plate.

What the camera doesn't see
Notice the police alleged the front license plate was missing. Why? Probably because you can't see it on the video. Ergo, for Tray to suppress this stop you would have a situation where the police say one thing, Tray says another, and the judge decides. Guess how that turns out?

HGN
Tray "failed" the HGN. The Horizontal Gaze Nystagmus is a great tool for corrupt officers.Why? Because the state can argue it is "science" and because the jurors can not see the suspect's eyes on video.

Other Allegations
Slurred Speech, Odor of an Alcoholic Beverage, Swaying, Blood Shot eyes, thick tounged speech. These are in the vast majority of DWI offense reports. None of them are viewable on camera.

The Dallas School Zone Cell Phone Ban contains the follow defense to prosecution-

(d) It is a defense to prosecution under this section that the person was: (1) operating an authorized emergency vehicle and using the mobile telephone or mobile communication device in the course and scope of the person’s official duties; (2) using the mobile telephone or mobile communication device to: (A) report illegal activity to a law enforcement agency; (B) communicate with an emergency response operator, a fire department, a law enforcement agency, a hospital, a physician’s office, or a health clinic regarding a medical or other emergency situation; or (C) prevent injury to a person or property;

Instead of banning all cell phone speech, the government is simply banning unnaproved speech. It's ok to call the cops, but not to call your wife.

The First Amendment does not come up often in my law practice. My Con Law class is a distant memory.

My question for law students and Con Law scholars-
Does the first amendment apply to the cell phone ban? If so, is this unconstitutional?

I wish the 9th and 10th Amendment would protect your right to use a cell phone in your car. However, those amendments have been repealed through neglect.

Labels: Dallas Cell Phone Ban

DMN has two stories that highlight the opportunity cost of stupid laws.

Story 1- East Dallas is being hit with a rash of home robberies. If you live in East Dallas and someone breaks in the door, it's either a robber, or the SWAT team looking for poker games.

Story 2- The Dallas City Council passed a new city ordinance that prohibits using a cell phone in a school zone. By all accounts this law is a solution without a problem. The Dallas City Council continues their proud tradition of incompetence.

Statistic- Last year Dallas had over 15,000 home robberies. Dallas also had no deaths caused by a cell phone, in a school zone.

Opportunity Costs are real.This new cell phone ban will be good at two things- raising ticket revenue (taxes) and wasting officer time. However, it will do nothing to stop the city's real crime problem- home burglaries.

Every stupid law, every speed trap, every pot arrest or poker bust wastes criminal justice resources. An officer writing a ticket for using a cell phone can not prevent or investigate a home burglary.

These two stories are two sides of the same coin. Our stupid laws- from Prohibition to Poker- prevent the police from keeping you safe. This new cell phone law is not only stupid, but dangerous.

Dallas Law Office Update- I am looking for law office space in Dallas. I've been focusing on Uptown. The Crescent has a great facility with many flexible options and I am considering an office there. I should make a decision by the end of March. This experience has got me thinking about what a law office does.

Attorney Needs-
From an attorney standpoint a law office has two functions- convenience (getting work done), or presence (advertising).

My office in Kaufman has both. Being on the courthouse square is a convenience I can not understate. It is a great place to work and easy for clients to locate (take 175 East, exit Highway 243).My name outside is seen by those leaving the courthouse and those driving by.

The Dallas criminal courts are on Industrial Boulevard. Industrial has a wide selection of liquor stores, but not much in the way of law office space or courthouse square charm. It's not an area that meets my criteria professionaly of aesthetically.

What do you want in a law office?
Enough about my needs. I am getting office space in Dallas to serve clients. My question is- What do you want in a law office?

If you have ever hired an attorney let me know what impression, if any, the law office made on you.

Labels: Lawyers