Dallas Criminal Defense Lawyer Blog

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.

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.

Kaufman is the county east of Dallas. Geographically we are neighbors, but we each have unique criminal justice systems. As a lawyer who operates in both worlds let me offer a comparison.

First, the part of criminal defense that actually matters is the same in both counties. The law, working the facts, investigating the investigation, etc doesn't change no matter where you are. I believe there can be an advantage to hiring a local attorney. However, defendants are better served hiring a great defense lawyer, not a local one.

It's the little things that are different. There is no quicker way to incur the wrath of a clerk or court coordinator than to violate local custom. Forget to hole punch your pages? Forget to have the ADA sign a pass slip? Staple something that shouldn't be stapled? No soup for you, carpetbagger!

Passing Cases
In Dallas, defendants are not expected to appear at announcement settings on misdemeanor cases. (An announcement is where both lawyers show up and discuss your case, but nothing contested is set.) I can show up and pass the case sans client.

In Kaufman, misdemeanor defendants have to show up at nearly every appearance. I say nearly because CC2 allows the lawyer to make the first appearance sans client. This policy is a major disadvantage to out of state clients. It puts pressure on the defendants to plea just so they don't have to make a return trip.

Technology
Kaufman county utilizes the Odyssey case management system. Odyssey is effective, with an intuitive user interface. Most people who can use a PC pick up the Odyssey system without a problem.

I have yet to learn the name of the Dallas computer program. I refer to it as that POS DOS program, because that is what it is. The Dharma Initivative had better software.

First, you are presented with a wonderful blank screen, with a flashing green cursor. No windows, nothing to click on. Just horrible black and green emptiness.

Want to search for a case? Type JI55. Obviously.

What's JI55? It's an ancient hieroglyphic search term. The original meaning was lost years ago. To make matters worse pressing the return key is always wrong. That's right, return does nothing. You have to hit control. Why? Who knows.

Dallas does have an advantage in that each courtroom has a computer, so this cryptic program is readily available. Kaufman only has one public access terminal for the whole courthouse.

Prosecutor Autonomy
In Kaufman there is much more autonomy for each individual prosecutor. Kaufman does have a chief misdemeanor prosecutor, but he does not have to approve every obstruction plea or dismissal. The ADA's in Kaufman are responsible for their own cases, and the resolution of those cases. This is not to say that rookie prosecutors don't ask for help or direction. They do, but they aren't required to do so.

In Dallas some decisions require chief approval. Obstructions are a good example. Want an obstruction without setting a case for trial? First, pitch the case to the ADA, then that ADA takes the case to her chief for approval. Then the chief denies the obstruction and you set the case for trial. The hierarchy is much more defined in Dallas.

Discovery
Enough complaining about Dallas. They actually have a slightly faster discovery process. Just go the DA workroom and ask for a copy of discovery. If there is nothing to be redacted you can get a copy right away. Great system.

Kaufman has an open file policy, but you have to request discovery then pick it up later, almost always within 2 day. Sometimes, the Kaufman DA will even mail your discovery to you. Overall, both counties have great open file policies.

Reset Dates-
Kaufman misdemeanor courts only have announcement dockets once a week (Monday for CC2, Thursdays for CC). To pass a case you have to get your client to court, then approach the court coordinator and ask for a reset date.

For misdemeanors cases in Dallas reset dates are much more flexible. Since your client doesn't actually appear and/or do anything you can reset a case for any day of the week. Plus, your lawyer can just choose a date. In Kaufman, not so much.

Courthouse Efficiency/Design-
In Dallas every courtroom has a clerk's office, a DA workroom, a defense lawyer meeting room, and a probation office. In Kaufman there are no DA workrooms, no defense lawyer meeting rooms. The clerks and probation have offices separate from the courts. The Dallas courthouse was built for efficiency, the Kaufman courthouse was built.

Not all cops are bad. But every department has a few Officer Powells on the force. Besides harassing motorists on their way to the ER Officer Powell also attempted at least one DWI arrest. Allegedly, he (shock!) told conflicting stories at the scene, on the stand, and in his police reports.

From DMN

In one Denton County case, dismissed by prosecutors last year, Powell can be heard on his dashboard video camera acting hostile toward a man he pulled over for speeding.

"What's your hurry?" Powell asked.

"No hurry, sir."

"All right, try again," Powell said. "What's your hurry? ... Don't lie."

Powell can then be heard telling another officer that he didn't smell any alcohol on the man but was going to check him for intoxication anyway.

The man refused to blow into a Breathalyzer but did perform field sobriety tests of speech and balance. Powell arrested the man on a DWI charge.

Later, at a state hearing to determine whether the man would lose his driver's license for refusing the breath test, Powell contradicted what he said on video. "And you asked him to step out of the car for what reason?" the man's attorney, Kimberly Griffin Tucker, asked Powell, according to a transcript.

"Because I smelled alcohol on his breath," Powell replied.

When Tucker then played the video, Powell gave another explanation.

"Well, I didn't say exactly when I smelled the alcohol," he said. "Sometimes when I get people out, I can smell it more than in their vehicle because a lot of times people won't exactly look at me."

The judge, unconvinced that Powell had probable cause, declined to suspend the man's license in the December 2007 arrest. And Denton County prosecutors dismissed the DWI charge. They didn't feel they had enough evidence to make a case, prosecutor Jamie Beck said.

Of the defendant's actions on tape, Beck said: "He's being very polite, very cooperative, and his mental faculties appear to be intact."

"The officer is kind of a jerk," the prosecutor said, "so that's going to count against us when we're trying it in court."

Remember that "protection" in the DWI roadblock law that requires reasonable suspicion to require SFSTs? If Officer Powell hadn't been stupid (or honest) enough to admit on camera he couldn't smell alcohol a judge may very well have ruled he had RS to conduct SFST.

Here is the video of the stop. This is your checkpoint future Texas. We will remember these pre roadblock (PR) days as a simpler time when Texans were able to avoid the wrath of rogue cops by obeying every traffic law. Glory days, they'll pass you by, glory daaaaaaa aaa aaays.

For the first time in my legal career I completed a county courthouse trifecta. I made an appearance in 3 different county courthouses in one day. This made me wonder what the record is for most county courthouses visited in a day? It can't be more than 4. All this travel has sapped my blogging energy. Instead of talking about the crazed Dallas ER cop or Sharon Keller, I'll offer a travelogue.

Collin County
Friday morning, I had a plea in Collin County. I live in Ennis (home of Polka Fest) which is about 65 miles away. Fog and speed traps slowed traffic on I-45. Traffic actual improved once I hit 75. I lamented over the suburban sprawl big box strip mall sameness that is southern Collin County and arrived in McKinney at 9:15.

I entered the courtroom and approached the ADA to discuss the plea deal we had worked out and..... the file wasn't in the courtroom. The ADA quickly dispatched an assistant to recover said file so we could finalize justice in this case.

"Are you an attorney?"
While waiting patiently in the courtroom the young man next to me inquired into my vocation. "Are you an attorney?"

I know that some lawyers dread the AYAA line. Personally, I don't mind helping pro se defendants avoid making horrible life altering decisions. My usual advise is- go hire a defense attorney (or ask for court appointed counsel), don't tell the ADA anything about your case, and don't accept a plea bargain without counsel.

After affirming that I was indeed a defense lawyer this defendant asked "Do you handle marijuana cases?" This had some personal comedic value. I skipped the opportunity to explain my marijuana defense credentials or direct this defendant to my numerous blog posts on the subject. Instead, I answered succinctly in the affirmative.

This defendant had been denied court appointed counsel and wanted to present two defenses to the ADA, an equity/de minimus argument and actual innocence. I explained that the Collin County DA has a less than progressive view towards pot cases. By that time my file had been retrieved so I told this defendant to call Hunter Biederman.

My plea was quickly finalized and I was on my way to Dallas.

Dallas
I arrived in Dallas at 11:00. I needed to pass a case, visit with an ADA on another case, and fix an earlier judgment that contained an error. This was largely uneventful.

To maximize my efforts I used the escalators. I usually employ the stairs at the Crowley center in an attempt to work some semblance of exercise into my daily routine. If you ever see me ordering a DWI video or visiting the special crimes unit (both are on the 11th floor) and I appear near cardiac arrest, this is why.

Sushi Sapporro Closed?
Around noon I emerged victorious ready to eat lunch at my favorite sushi lunch buffet, Sushi Sapporro on Oak Lawn. To my great shock and disappointment there was a sign on the door that the restaurant had violated their lease terms and was closed. Lunch fail.

Kaufman
Finally, I had to go to Kaufman to visit the DA on an upcoming DWI suppression (this should be an obstruction) and pick up some documents from the district clerk. Finally, I returned to my office, answered a dozen or so emails, returned some phone calls, and met with a potential client, who became an actual client.

My day was finished and I actually left work early, around 4:30 pm.

The militarization of our police force is complete. Dallas Police are using a freakin' helicopter to find an orange painted streaker on Katy Trail.

A few questions-

1. How hard is it to catch someone who is a) naked and b) painted orange! Maybe if cops weren't so busy meeting their daily ticket quota they could spend more time patrolling Katy trail.

2. How much do you think this costs in fuel alone? What's next, using the chopper if kids are toilet papering a house? This was some weird exhibitionist stunt, not a terror attack. There should be evidence of some threat to public safety before we fire up the DPD copter.

Let's see DPD keeps a straight face explaining their overreaction.
Oh, wait, they already did.

Dallas police expressed concern over the incident. "This is very offensive and something that is not funny, not funny at all," Senior Cpl. Janice Crowther told KXAS-TV.

I have to disagree. This is high comedy. Maybe Sascha Cohen doing a bit on Katy trail. I'm worried Senior Cpl. Crowther can't find the humor in her occupation. Here is a clip just for her.

DISD has a truancy epidemic. The district has so many truants that a special court is needed to help prosecute school children who won't show up for their free government education.

Truancy enforcement is a win/win for Dallas. The city gets the fines levied against parents, and schools get more funding when an extra body is in the classroom.

That bring us to the truancy court judge Douglas Dunn. Dunn is more of a fascist hall monitor than neutral arbiter. Here is an instant classic from DD.

From DMN-

The students aren't treated with kid gloves – two students were escorted from Judge Douglas Dunn's courtroom in handcuffs last week. Dunn, who presides in the central truancy court in the Frank Crowley Courts Building, recently told a student that if he didn't straighten up, he wouldn't have to worry about being disciplined by his mother – but rather by his "boyfriend in county jail." He also made the student tuck in his shirt and pull up his pants before approaching the bench.

Go to school or get raped by your "boyfriend in county jail." Disgusting. Judge Dunn sinks to a level of discourse below that of daytime TV judges. For shame.

I'm not a truancy court expert. I did preside over a truancy court in Texarkana a few times. No one was arrested in my court, no rapes were threatened. Somehow, we managed to get kids back to class.

If Judge Dunn really is incarcerating children (which should be impossible, truancy is a class C traffic ticket level offense) then these defendants should have a lawyer. Paying for defense lawyers would slow down the gravy train for the city. But if this is about justice then that shouldn't matter.

Judge Dunn seems to enjoy throwing out big fines to to the parents. Never mind that the fact that we are in a recession and most of these parents are broke to begin with. This is law enforcement for the sake of law enforcement. This isn't about education, it's intimidation.

Finally, another brilliant insight from judge Dunn..

He took a similar approach with another truant, with a record of criminal offenses. "You're not very good at this. You need to find another line of work."

Pot meet kettle.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Dallas at least, crime went down 10%.

From DMN-

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

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

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

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

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

The Dallas City Council is patting itself on the back about the recent passage of a new city wide smoking ban. Our local dear leaders are so concerned with your health they want to ticket you (with a $200 fine) until you quit smoking in their bars and pool halls.

In a city with abysmally low crime clearance rates (94% of burglars go free) we can now add smoking prevention to the list of useless Dallas police activity (along with poker SWAT raids and TABC strip club undercover work).

Freedom has no chance when the city council views adults as children, and Dallas as a giant head start center. Business owners are upset and worried about the potential loss of revenue. You would be to if the broke and corrupt City of Dallas decided to run your business.

I don't smoke (occasional cigar notwithstanding). I don't like my clothes smelling like smoke. But I respect the right of adults and business owners to be left alone, free from the best intentions of moral busybodies.

Dallas' red light camera program was struck down yesterday. A judge ruled the city's shameless money grab violates Texas law. I have been following the proliferation of red light cameras in Texas. It's a greedy government pig covered with some public safety lipstick.

Why did the judge rule these cameras were illegal? To the occupations code we go!

§ 1702.104. INVESTIGATIONS COMPANY. (a) A person acts as an investigations company for the purposes of this chapter if the person: (1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to: (A) crime or wrongs done or threatened against a state or the United States;....... (b) For purposes of Subsection (a)(1), obtaining or furnishing information includes information obtained or furnished through the review and analysis of, and the investigation into the content of, computer-based data not available to the public.

Dallas was so exited about stealing money from drivers, they forgot to read the law.

Being in criminal defense necessitates familiarity with laws well outside the Penal Code and Code of Criminal Procedure. All defense attorneys need to be aware of this statute.

Why? Because evidence obtained in violation of state law can not be used against criminal defendants. It's our state's version of theexclusionary rule. If the police want to use this red light camera information to place a defendant in a certain place at a certain time, they have to make sure the camera company is licensed.

The fight isn't over yet. Our appellate courts love upholding police powers and Dallas is addicted to red light cash.

Photographed outside the State Office of Administrative Hearings in Dallas (where DWI ALR hearings are held). EVE was not nearby. I often worry about the militarization of our police forces. I'm glad to see DPD going the complete opposite direction with the Lt. Jim Dangle inspired police segway.

A Dallas Morning News story lays out the simple arithmetic of wrongful convictions. Lack of discovery for defendants plus prosecutors who hide Brady material= Wrongful conviction.

From DMN

Antrone Lynelle Johnson twice was convicted of sexual assault as a high school student, earning him a life sentence.

Mr. Johnson, 31, contends that both cases from the mid-1990s were built on lies and prosecutorial misconduct. If a judge agrees, he could be set free as early as Monday.

In one of the cases, a girl told the prosecutor that Mr. Johnson did not rape her. In the other, the girl gave conflicting statements about whether she had sex with him.

Mr. Johnson and his attorneys were not told until this year about either of the girls' comments – a violation of the law.

The Dallas County district attorney's office agrees that Mr. Johnson's first conviction – and life sentence – should be overturned. Mr. Johnson has already served a five-year sentence in the second case.

No DNA testing was done in either case.

The "victims" conflicting statements were never made available to the defense. Theoretically, every prosecutor is required to disclose exculpatory evidence, known as Brady material, to the defense.

In reality, defendants have no way to enforce this right. Texas defendants have very little right to discovery. Parties in a car wreck, or a divorce case in Texas, have a much greater right to discovery than criminal defendants.

For example, police reports do not have to be turned over to the defendant. Grand jury testimony can also be withheld. That is why Brady violations are nefarious. When a prosecutor purposefully denies Brady material to a defendant, the defendant may NEVER learn about this evidence. Ergo, innocent defendants may never be freed, or learn of the evidence that could free them.

Instead of forcing defendant to rely on the altruism of prosecutors who want to convict them, Texas should require all information in possession of the state be turned over to the defense. There is no legitimate reason for the State to hide evidence. The integrity of our system in compromised by each wrongful conviction.

Texas appellate courts have a longstanding tradition of throwing out issues on appeal because the defense didn't object correctly at trial. The law is- to raise an issue on appeal you must specifically object to that issue at trial.

It's a logical fallacy to believe that a defendant is intentionally waiving an error at trial because his attorney doesn't make the perfect objection. However, that is the law.

That brings us to the case of the day- Unique Elmore vs. State.

Unique Elmore was charged with multiple drug offenses including cocaine possession. Texas has a law that requires the State to provide the defendant 30 days notice before going to trial on multiple drug offenses. The idea is to let the defendant be tried on each drug offense seperately. Otherwise the jury could be negatively influenced by the multiple charges.

At trial Elmore's attorney objected to trying multiple drug cases at once. Here is the objection by defense counsel.

The Defendant objects to being tried for more than one case at one time. He is entitled to be tried for his alleged involvement in the crimes alleged in the three indictments separately. To try them together is to invite the jury to convict him for being a criminal generally rather than for his guilt or innocence of the offense with which he's charged, so we would ask that the court proceed with one of the three cases, any one is fine with us, and defer the trial of the other two for a later time.

Now the defendant wants to appeal the judge's decision to overrule this objection.

You are the appellate judge. How would you rule?

A. New Trial- The judge violated the defendant's right to have seperate trials.
B. Harmless Error- The defendant wasn't harmed by the error so no reversal. No harm, no foul.
C. No Appeal For You! The defense attorney didn't object the right way. That objection, was really a waiver.

If you guessed C you're right. The court ruled that the defendant couldn't even appeal the issue because the defense attorney didn't object the right way.

From the court's decision.

In this case, appellant's objection at trial was pursuant to section 481.132(e), requiring separate trials due to prejudice from a joinder of offenses. Appellant's issue on appeal, however, is misjoinder of offenses due to lack of the notice required by section 481.132(b). Because appellant's issue on appeal does not comport with his objection at trial, we conclude he has not preserved error. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (defendant may waive lack of notice of intent to join offenses under Texas Penal Code section 3.02(b) by not objecting).

Specialized courts are all the rage. We have DWI courts, Drug Courts, and more recently a new speicalized court for prostitutes. DMN reports

Dallas court helping put prostitution in the past

06:41 AM CDT on Tuesday, October 28, 2008

By TIARA M. ELLIS / The Dallas Morning News
tellis@dallasnews.com

These days, Cheryl Sneed dresses more like a church lady than a lady of the night. She's been both.

But for the last two months Mrs. Sneed and about 20 other former prostitutes have given up selling their bodies in exchange for freedom.

"These women have been where I've been," said Mrs. Sneed, 49. "We were all in the bottom of life, in the depths of hell out there in those streets. This program has been a miracle to me."

The program to which Mrs. Sneed refers is called STAR Court, which stands for Strengthening, Transition and Recovery. State District Judge Lana Myers started it in July to help get habitual prostitutes off the streets. The women usually meet in her Dallas courtroom on Monday afternoons to talk about their progress and their setbacks.

It is believed to be the only such "prostitution court" in the state.

What isn't discussed is if prostitution should be legalized. After all, even Dallas SWAT members enjoy the company of professional escorts.

Texas Prostitution Laws
In Texas, prostitution is a misdemeanor with the possibility of up to 6 months in the county jail.
From the Texas Penal Code

Sec. 43.02. PROSTITUTION.
(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or
(2) solicits another in a public place to engage with him in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.
(c) An offense under this section is a Class B misdemeanor...

It is the commercial aspect that makes prostitution illegal. This activity is legal unless done for a fee, or "for hire". Kind of a strange line for morality.In the age of craigslist and internet escorts the streetwalker stereotypes are changing rapidly. Do we still want cops busting johns and hookers when Dallas has a lousy 6% crime clearance for burglaries?

Opportunity costs aside; should this conduct be constitutionally protected? In Lawrence vs. Texas SCOTUS struck down the Texas sodomy laws finding a right for adults to engage in consensual sexual activity. Shouldn't the same logic apply to commercial sex?

From SCOTUS

[The State of Texas] seeks to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons

I read most of the new criminal opinions from the Dallas Court of Appeals. Many defendants want to appeal not just their trial, but their sentence. A common example is a defendant who goes to the judge for punishment and receives a long jail sentence instead of probation.

The defendant will then claim the sentence is cruel and unusual punishment or that the judge abused her discretion. Ergo, the sentence is unconstitutional and should be changed.

Week after week I see these appeals denied for the same reason. The defendants do not object to the sentence when it is pronounced.

LESSON OF THE DAY:
If you are sentenced in a criminal case and you want to appeal said sentence you must OBJECT when the sentence is pronounced. If not, this is what the Dallas Court of Appeals will say.

Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda, 135 S.W.3d at 723.... We affirm the trial court's judgment.

Texas has a tradition of throwing out issues on appeal if the defense does not object on the record. Even worse, if the defendant objects; but not for the right reasons, then the error will still be waived on appeal. This doctrine allows many errors, even constitutional errors, to go without justice. This "waiver by omission" is a horrible practice, but it is very much the current appellate law in Texas.

A larger issue that may be addressed in the near future is- can a sentence that is within the range of punishment be unconstitutional? That is, if the sentencing possibilities range from probation to 99 years in jail, and you get 99 years, can that cruel and unusual or an abuse of discretion?

The Cherry Pit prosecution has reached a new low. Not content with mere code violations the police have invented an organized crime charge. This new charge carries a possible sentence of 99 years in jail. From DMN

According to the arrest warrant affidavits for Jim Trulock, 59, and Julie M. Norris, 30, the pair runs the Cherry Pit more like a business, with employees, staff meetings and donations that totaled more than $102,000 over 16 months.

The Duncan ville police department’s investigation accuses them of operating a sex club, possessing large amounts of alcohol, promoting prostitution and engaging in organized crime and money laundering.

Ed Klein, the attorney for Mr. Trulock and Ms. Norris, said the city is harassing the couple in an effort to run them out of town.

“They want to prolong the abuse,” Mr. Klein said. “Just when Jim and Julie make sure it’s OK to sit down and have a quiet dinner at home, they’re going to pounce on them every chance they get.”

On Thursday, Duncanville authorities arrested Mr. Trulock on suspicion of organized crime, a first-degree felony. One day later, officials arrested Ms. Norris on the same charge. If convicted on the organized crime charge, the pair could serve five to 99 years or life in prison and pay a fine not exceeding $10,000.

Most Texans are not swingers. Like the polygamists in West Texas this is a distinct subculture unfamiliar to the majority of Texans. Like the polygamists in West Texas this group is subject to persecution.

Even if you disagree morally with the events at the CP you should oppose this abuse of power.
Why? Ask yourself where the victim is in this case? There isn't one. The government alleges alcohol violations, code violations, and a laughable prostitution charge.

No one is claiming that anything other than consensual behavior happened at the CP.

Now ask yourself, what kind of conduct should carry a life sentence? Most of us could agree that life sentences should be reserved for those who actually harm others.

In a simpler time the Bill of Rights and Texas Constitution limited the ability of petty tyrants to destroy an individual. Today, with less freedom than ever, the police can turn code violations into a possible 99 year sentence.

Why has the Duncanville city councils decided to destroy the CP and the individuals involved?

First they came for the swingers...
Politicians often attack the politically powerless. In this case the city invented new laws just to shut down the CP. It's a cheap way for politicians to appear like they are "doing something."

You Can Beat The Rap, But You Can't Beat The Ride
Even if these individuals avoid a conviction the cost and stress of litigation is enough to ruin these defendants. It's not worth it. We need to reexamine the role of government in controlling the private behavior of Texans. Lest we legitimize the destruction of the politically powerless.

I had court in Dallas this morning. Like many mornings with court I didn't eat breakfast at home. Luckily, Frank Crowley has a restaurant with breakfast served until 10:30.

As a public service, and to fill space, here is a quick breakfast review.

I ordered 2 eggs with 3 pieces of bacon, and a diet coke. Very low carb. The total was $4.32.

The first clue that this breakfast was not going to be top quality was when the eggs were scooped out of a warming tray. Now, I could have gotten eggs to order, but I didn't want to wait. So I went with scrambled. The eggs were cold and could have been powdered eggs.

For a meat option I chose bacon. Bacon is really hard to screw up. I only ask that it is burnt and/or crispy. The bacon was in a nice pile so you could choose which pieces you wanted. I asked for the crispiest pieces. My request was not honored. I received luke warm greasy bacon. I hate greasy bacon.

Here is a picture I took. Having seen enough Top Chef I can tell you that this dish was not "plated well". The food was merely lumped on the plate and not placed in a feng shui pattern with drizzles of sauce. However, this meal will be judged solely on culinary, not artistic quality.

Final Verdict- This meal was found to be guilty of impersonating a quality breakfast, and sentenced to 6 months State Jail.

The police pull you over for speeding. The officer checks your criminal history and you have some old drug convictions. The officer thinks you look "nervous" and ask to search your car. You say no. The cop calls for the drug dog and 30 minutes later finds 200 grams of meth. Is that a legal search?

Such are the facts of The State of Texas, Appellant v. Gregory Daivd Pierce, Appellee. This is an unpublished opinion, but still a useful example of search and seizure. The trial court suppressed the search and all the evidence (drugs) founds. The State appealed and the Dallas Court of Appeals affirmed that the search was indeed illegal.

"But they found drugs!! A lot of drugs!"
I can hear the objections that we need to take drugs off the street. However, the 4th amendment applies regardless of what evidence is seized. Drug warriors shouldn't worry, we have set the bar pretty low for police searches. We only ask that cops have a reasonable suspicion of criminal activity.

Why was this search illegal?
When the police pull you over for speeding they are only allowed to detain you long enough to investigate speeding. They can check your license and insurance, run a warrant check, and ask some basic questions. But a stop for a traffic offense alone does not give the police the right to search your car.

For a further investigative detention the police need reasonable suspicion. In this case Officer Spano thought Mr. Pierce was acting "nervous". He knew Mr. Pierce had a record. In fact Mr. Pierce had a warrant out of California (but CA refused to extradite). However, those observations are not enough to detain a driver and bring out the drug dog.

From the Court of Appeals-
Here the facts and the reasonable inferences drawn therefrom are insufficient to support the conclusion that Pierce was engaged in or soon would engage in criminal activity; the suspicious conduct relied upon by Spano was as consistent with innocent activity as with criminal activity. See Carmouche, 10 S.W.3d at 328-39. Therefore, we reject the State's argument. We conclude Spano lacked reasonable suspicion to continue the detention beyond the time necessary to complete the initial purpose of the stop. See St. George v. State, 237 S.W.3d 720, 727 (Tex. Crim. App. 2007); Kothe, 152 S.W.3d at 63; see also Lambeth, 221 S.W.3d at 336. Thus, Pierce's continued detention beyond that time was unreasonable. See St. George, 237 S.W.3d at 727; Kothe, 152 S.W.3d at 63.

Never Consent To Police Searches
Gregory David Pierce made one important decision that probably kept him out of jail. He refused to let the police search. The officer asked for consent to search and Mr. Pierce rightly said no. This officer then threatened to bring the drug dog out, and did.

If Gregory had read my earlier piece on police searches, he would know that police often threaten drivers with the drug dog. That is NEVER a reason to let them search your car. If the police ask you to search, just say no.

Finally, this case is not over. The State could appeal to the Court of Criminal Appeals. If so, COCA could ignore these rulings to save this search. Such is the nature of appellate law. However, as of today two separate courts have ruled this search illegal.