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.

The Dallas Jail continues to vie for the title of the worst run jail in Texas. Recently, a jury awarded $900,000 to a man who was denied medical care while in custody. Grits has a great breakdown of the verdict.

To make matters worse, Dallas uses this dangerous jail to incarcerate those with outstanding traffic fines. The Dallas city council has chosen to arrest their way to fiscal responsibility. The annual expenditures for kickbacks and corruption must contribute to the need for revenue. To fill the coffers Dallas launched the ill conceived "Operation Pay or Stay" program. The result is that one of the most dangerous jails in Texas, is now being used a debtors prison.

Tarrant County has already had a traffic ticket arrest turn into a death sentence. It is only a matter of time before Dallas experiences a similar tragedy.

I recently received the DPS racial profiling data for Collin, Dallas, and Ellis County- Click here for the google spreadsheet. This covers stops, tickets, and searches by DPS troopers only; not local police or sheriff deputies.

Do you want the racial profiling stats for your county? The process is simple.
1. Email pio@txdps.state.tx.us
2. Ask for the racial profiling data for your county
3. Include your name, address, fax, phone, and email address (the stats are in excel format)
4. Expect to pay around $10-20 bucks.

A quick look at the numbers tells me that the word is not getting out on consent searches. Ellis county led the way with 294 consent searches last year. For more on consent searches, and why you should refuse-Can I Search Your Car?

Speaking of official oppression, Dallas is planning to celebrate Labor Day by violating your constitutional rights. It's another "No Refusal" weekend!!

To kick off the festivities Ryan Evans, First Assistant City Manager, sent out this letter regarding DWI no refusal weekends. A reader was kind enough to send me a link to this letter.

The letter begins with a clear misunderstanding of Texas law. From bureaucrat Evans-

"Under the Texas Implied Consent Law a person arrested for DWI is required to provide a breath and/or blood specimen."

Which implied consent law would that be Mr. Evans? Certainly not this one.

§ 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES;

After this strong start bureaucrat Evans proudly declares that DWI blood draw warrants are issued for innocent drivers only 8% of the time-Therefore this program is a great success! I wouldn't put too much stock in those numbers. After all, the government will lie with numbers to convict for DWI. Assuming they are true, you should still oppose blood draw warrants.

Proponents of DWI blood draw warrants often argue than some of the blood collected is over the .08. That is a fool's argument. The fact that violating the Constitution makes conviction easier, or provides useful evidence, is not a reason to violate the Constitution.

We could convict more defendants if we eliminated the right to counsel and beat defendants until they confessed. That doesn't mean we should. Can you hear the arguments of petty tyrants like Mr. Evans- "But 93% of those we beat confessed, and were guilty!!"

For those new to this blog here is some background on DWI blood draw warrants Here is my FAQ on the subject. These forced blood draw warrants should violate both the Texas Constitution and Texas' implied consent law. I say should because appellate courts have invented a DWI exception to the Bill of Rights.

Finally, if the police are doing their job and have actual evidence of intoxicated driving, why do they need these warrants in the first place? Because the goal of law enforcement is to convict, not to see that justice is done. Happy Labor Day!

Need to see if a friend or loved one is in the Dallas County Jail?

Here is the Dallas County Jail Lookup It's like Facebook for inmates. You can search by name, bookin numer, or criminal case number.

Dallas has one of the worst jails in the country. It constantly fails inspection. If you do search and find a friend or family member in the Dallas jail, bail them out before they get a staph infection.

The local media is in a tizzy over the arrest of Officer Alph Coleman.

Allegedly, Officer Coleman helped coordinate a robbery at a Sam's Club. Officer Coleman was working security at the Sam's when it was robbed. There is some pretty compelling evidence against Officer Coleman. From DMN-

Police say the getaway driver was behind the wheel of Officer Coleman’s civilian car. They also obtained cell phone records showing that Officer Coleman called the driver several times just before the gunman entered the store.

So what does Officer Coleman do when the police want to question him? He shut up. Maybe Alph read Houston Defense Lawyer Mark Bennett's Million Dollar legal advise. From DMN-

When investigators spoke to him Tuesday, he refused to answer questions about the June 27 robbery of the Sam’s Club in the 2900 block of West Wheatland Road.

Even the police know not to talk to the police.

I filed an open records request for documents pertaining to the Cherry Pit raid. I received the affidavit used to search the premises and the investigation report.

Cherry Pit Search Warrant Affidavit and Return

Cherry Pit Investigation Report

I don't have time to break these down yet. Let me know your thoughts.

Texas Alcoholic Beverage Commission officers spend a lot of time harassing college students, busting up high school key parties, and arresting bar employees. However, TABC agents know how to have a good time. In fact, TABC agent routinely work undercover at Dallas strip clubs buying lap dances and beer with your tax dollars!

I filed an open records request last year to learn more about this undercover operation. To my surprise these strip clubs stings are not a TABC employee morale boosting program- this is considered law enforcement.

Nothing makes blogging material like a follow up story. So, I filed a follow up open records request to check in on the TABC strib club subsidy program.

I didn't receive as much information as my first request. For example, last time I received offense reports where the officers detailed the dangerous crimes they were investigated (improper lap dancing!). I may file a follow up open records request. Until then, here is what I learned.

A day with TABC and your tax dollars- 11/8/2007
Whevern TABC wants to use taxpayer money on lapdances, they are required to fill out a "purchase of evidence" report. I received some POE reports from November 8, 2007.

On 11/8/2007 undercover TABC agentsmanaged to infiltrate several Dallas area strip clubs. Armed with over $400 in taxpayer funds these officers bravely purchased 21 beers, and 9 lap dances. TABC is working hard to protect Dallasites from the lap dance menace; is this a good use of tax payer resources?

If one listed the dangers facing Dallasites today, where exactly would lap dances rank? Probably well below being wrongfully convicted and home invasion burglaries.

Dallas has one of the highest crime rates in the country. Real crime should take priority over inventing crime at strip clubs.

Here are the reports TABC sent.

I get a few readers who are searching for "Dallas Court of Appeals". As a public service here is some basic information on the 5th District Court of Appeals.

Where is the website for the 5th District Court of Appeals in Dallas?
Here is the website. This site was recognized as one of the best in 2000. Unfortunately, it really hasn't changed since. The site design has a Windows 95 flair. Function over form.

What Does A Texas Appellate Court Do?
When a trial court makes a decision, that decision can be reviewed by an appellate court. For example, a defense lawyer may object that certain evidence is hearsay and should be excluded. If the judge rule overrules the objection and the defendant is found guilty, the defendant can appeal that decisions. The appellate court will then decide if the trial court's decision was in error. (Trial court error's are usually not enough to overturn a conviction. Texas appellate courts often rules that mistakes by a trial judge are "harmless.")

What areas does the 5th District appellate court serve?
Appeals from Collin, Dallas, Kaufman, Rockwall and Grayson county are all heard by the 5th District Court of Appeals.

Here is a map showing the jurisdiction for all Texas appellate courts.

I thought the 5th Circuit Court of Appeals was in New Orleans?
It is. However, that is the federal court of appeals. Dallas is the seat of the 5th District Court of Appeals.

Isn't there more information on criminal appeals at RobertGuest.com?
Great question. For information on appealing a criminal case, here is my appellate page from robertguest.com.

The debate on the CP raid is evolving. My original post generated some good discussion on liberties, lifestyles, and law enforcement. Thanks to all for reading and posting.

One justification for this raid that hasn't been discussed is the nanny state view. The idea that adults need police protection from themselves. A great summary of this view if offered by Duncanville Police Detective Dan Hunt. Here is a quote from DMN-

In a city news release issued Wednesday, police Detective Dan Hunt said the Cherry Pit's owners are endangering and exploiting patrons.

"Individuals that elect to participate in the swingers' lifestyle behind closed doors should not be charged to do so, and they should not be exposed to disease, fire hazards, or any other dangerous hazardous environment. They [the owners] are taking advantage of swingers while claiming to be champions for their cause."

We sent the police into a private house at night to ensure a proper swinging environment? Really? I am curious as to Detective Hunt's expertise on how to conduct a swinger party. Is there police training on swinger etiquette?

I do appreciate arguments against running a business in a residential area. I wouldn't want any business next door to my house, whether it be a sexually oriented business or a Starbucks.

However, I still believe the proper venue for code enforcement, nuisance claims etc is civil court. A simple injunction or restraining order could address the city's concerns and give both parties an equal opportunity to litigate their claims.

Sending the police into a private residence at night is simply too dangerous a measure to protect adults from themselves.

Late Saturday night the Duncanville Police raided the "cherry pit", a private residence that also hosts swinger parties. According to DMN the police stormed in guns drawn (insert joke here). From DMN

Duncanville police executed a search warrant at the club, the Cherry Pit, which has been the subject of a Duncanville ordinance that bans sex clubs.

“They had guns drawn when they busted down the door,” said Ed Klein, the Cherry Pit’s attorney. “You’d have thought this was some kind of meth lab.”

What "crime" did this raid uncover? The police issued 10 tickets for operating a sex club. That's it. Class C misdemeanors. We usually don't call out SWAT teams to raid the homes of code violators; and for good reason. It's dangerous to raid a private residence at night.

Besides being dangerous, this raid is a poor use of resources. Here is the crime report from the Duncanville police web site. These crimes all occurred during the 48 hours before the raid on the Cherry Pit.
600N MAIN ST ALARM BUSINESS
1900 BLUERIDGE DR CRIMINAL MISCHIEF REPORT
200 N MAIN ST BURGLARY REPORT
1500 S CLARK RD ALARM ROBBERY HOLD UP
900 RED BUD DR BURGLARY REPORT
600 E CAMP WISDOM ALARM ROBBERY HOLD UP
1400W DANIELDALE THEFT REPORT
300 VAN ROWE AVE DISTURBANCE MAJOR
900 CLINT SMITH HARASSMENT REPORT
700 HUSTEAD ST BURGLARY REPORT
200 JELLISON BLVD BURGLARY OF VEH REPORT
600 W WHEATLAND THEFT IN PROGRESS
400 N CEDAR RIDGE THEFT REPORT

I would hope these crimes would take priority over code violations.

Every holiday in the summer the Dallas media sounds the alarm on boating fatalities, and/or drinking and boating. The dangers are real, don't get wasted and drive a boat. Bring life preservers etc. However, like most local TV news the fear is exploited far beyond the reality.

Example headline from DMN- Texas Leads Nation In Boating Fatalities.

That is a true statement. Last year, Texas led the nation in boating related fatalities with 52. Texas Parks and Wildlife estimates that 1/3 of all boating accidents "involve" alcohol (not caused, mind you). Texas also has the most miles of inland water of any other state. Not even the Land of 1,000 Lakes compares to Texas. In perspective, Texas is a safe place to boat.

What is the law on BWI?

§ 49.06. BOATING WHILE INTOXICATED. (a) A person
commits an offense if the person is intoxicated while operating a
watercraft.
(b) Except as provided by Section 49.09, an offense under
this section is a Class B misdemeanor, with a minimum term of
confinement of 72 hours.

§ 31.124. INSPECTION OF VESSELS. (a) In order to enforce the provisions of this chapter, an enforcement officer may stop and board any vessel subject to this chapter and may inspect the boat to determine compliance with applicable provisions.

The sorry tale of Dallas Police Sergeant Walter Clifton came to an end yesterday.

Sgt. Clifton was involved in the phony tickets scandal in Dallas. Here is a summary. Sgt Clifton and his officers would write many tickets to homeless or transient defendants. These defendants sometimes missed their court appearances. Allegedly, Dallas judges would not issue arrest warrants when these defendants failed to appear.

Sgt. Clifton sought to guarantee the incarceration of the destitute and came up with a plan. He instructed his officers to write put phony occupations on the ticket. That way the judge would issue an arrest warrant and these homeless defendants could be incarcerated. Besides being morally reprehensible writing false tickets is illegal in Texas.

From the Texas Penal Code- § 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he: (1) knowingly makes a false entry in, or false alteration of, a governmental record; (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record; ...(5) makes, presents, or uses a governmental record with knowledge of its falsity; or

Since Sgt. Clifton intended to have these defendants arrested this should have been a state jail felony offense. Unfortunately, criminal laws rarely apply to those in law enforcement.

What punishment did Sgt. Clifton receive?

Criminal charges? No.
Loss of job? No.
Suspension from job? No.
Documented Counseling? Yes!!!

Dallas Assistant City Manager/Bureaucratic Stooge Jill Jordan reduced Sgt. Walter Clifton’s work suspension to a "documented counseling." Apparently Ms. Jordan thinks illegal arrests of the homeless is no big deal.

Still think the government is looking out for your freedom? There is an inverse relationship between constitutional protections and criminal police conduct. The more we gut our freedom and liberty, the more Sgt. Cliftons we get. People often view Constitutional protections as "technicalities" that criminals use to escape justice. The truth is that without liberty, freedom, and Constitutional protections our government becomes a criminal enterprise in which there can be no justice.

Dallas Morning News has yet another story on the proliferation of DWI blood warrants. This time the Dallas Police are joining the bandwagon of cities who have chosen to circumvent the law and violate your right to refuse blood testing.

What about the right to counsel? Will these DWI suspects have the right to consult an attorney before the Dallas Police forcefully remove their blood?

Texas Bill of Rights
From your Texas Constitution- Article 1 Section 10.

In all criminal prosecutions the accused shall have the right of being heard by counsel,

DWI Blood Draws
Does Article I Section apply to DWI suspects? After all, the Dallas police want to detain you, interrogate you, ask you to perform useless physical challenges, arrest you, ask for a breath sample, and finally hold you down and forcefully extract your blood. That sounds like a good time for a defense attorney to intervene.

Unfortunately, the right to counsel for DWI suspects was repealed long ago. Here is a summary of the sorry state of RTC law from the Texas prosecutor's DWI manual, DWI Prosecution and Investigation by TDCAA.

An officer does not have to give Miranda warnings to a suspect before asking for a breath sample. A suspect does not have the right to counsel before deciding whether to give a sample. An invocation of the suspect's right to an attorney will not later exclude evidence of a refusal to take a breath test.

How was the right to counsel repealed? Conservative Judicial Activism. (Due Process also applies to this discussion. However, that is outside the scope of this post.)

McCambridge v. State
The Court of Criminal Appeals abated the right to counsel for DWI suspects in the early 1990s. A string of DWI cases allowed COCA to rewrite the Texas Constitution in order to save DWI convictions. A good example is McCambridge v. State (778 S.W. 2d 70).

In McCambridge the defendant was found guilty of DWI. On appeal McCambridge argued that he should have had the right to speak with an attorney before deciding whether or not to give a breath sample.

How would COCA save this DWI conviction that clearly violates the Texas Bill of Rights?

Rights under Article 1 Section 10 only apply during a "criminal prosecutions." COCA held that DWI suspects are not being prosecuted. Ergo, they have no rights.

Only in a DWI case would such tortured logic be allowed. COCA won't even stoop this low to save a drug case. For example, if the police had a warrant to search your house for drugs they could not force you to show them where the drugs are. If you asked for an attorney while they were searched they would not continue to question you.

The Dissenting opinion sums up the McCambridge decision well.

Today... a lackluster majority of this Court declines to hold that under Art. I, § 10, of the Texas Constitution, the "Rights of the Accused in Criminal Prosecutions" clause, 1 an individual lawfully arrested for allegedly committing the offense of driving while intoxicated has the right to the assistance of counsel from that point forward; they opt instead to hold that such a person has the right to the assistance of counsel only after formal criminal charges have been filed, which act apparently lies in the discretion of the police as to just when that must occur.

For unknown reasons, a person lawfully arrested in Texas for driving while intoxicated is to be treated differently from a person who has been lawfully arrested for committing some other criminal wrong.

DWI = Not A Criminal Prosecution?
This arbitrary decision by COCA has little basis in law enforcement reality. Any assistant DA or criminal defense lawyer can attest that every DWI arrest is indeed a criminal prosecution. Every facet of law enforcement works in concert to arrest and convict dwi suspects. The police work under the direction of prosecutors, who then conspire with cooperative judges, who then sign "fill in the blank" search warrants. Under any definition (besides COCA's) that is clearly a criminal prosecution. But don't take my word for it. From DMN-

Deputy Chief Tom Lawrence said the effort is "the next step in what we are ultimately trying to achieve when we make an arrest for driving while intoxicated. That is the successful prosecution of these cases."

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 kids. 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;

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.

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.

Opportunity costs are real. Officers who are getting lap dances are not investigating robberies, murders etc.

Here is something to check out while I'm gone.
Ten Funniest Anti Drug Commericals

Labels: DWI

I filed an open records request to the Dallas District Attorney's office to see if there had been any mentions of "Canadians" in their email. Specifically, I asked for any emails sent by any attorney that had the word "Canadians" in it.

The response from the Dallas office- We can't search our own email.

Really? You don't have Google desktop? ">Dallasites spend millions of dollars yearly for government technology that can not perform a simple search? No wonder so many innocent people are convicted in Dallas County.

Even the most casual observer of criminal justice can see the blatant hypocrisy of our State's poker ban. Gambling in Texas is legal only if the State runs it. The Texas Lottery sells poker scratch off tickets, inter alia. Try and run a private poker game and we send a SWAT team to shut you down. Private poker is illegal. Our State's gambling laws exist only to protect the State's gaming monopoly.

Sgt. Randy Hooper of the Open Records unit reports that no such agreements exists for either Dallas PD or the Dallas County Sheriff. Your electric bills are safe, for now.

I don't know if this is a victory for privacy or freedom, but at least it is not a loss.

At large tickets are issued when the suspect is not available to cite in person. If the ticket is not mailed to the right address and the suspect never appears in court a warrant can be issued. It seems that defendants were jailed without any knowledge of a ticket being issued.

DMN speculates that these highly decorated officers were motivated to "write more tickets so that it appears they are working harder than their peers. Cpls. Stecker, Nelson and Schoelen have been prolific ticket writers.. "

How could this go on for so long?

1. The defendants are not very sophisticated, educated, or sympathetic. Many of these ticketswere to prostitutes and the homeless. If they end up in jail and complain it is their word against the police. Guess how that looks in court?

2. Class C misdemeanor defendants do not have the right to counsel; even if they are incarcerated for the tickets. These defendants had no one to challenge these tickets. I am guessing most plead out for "time served."

3. These officers had oustanding credentials. Quoting from the article- The three officers have all received positive reviews from supervisors. A sergeant wrote in a recent evaluation that Cpl. Schoelen "excels in the performance of his duties." Cpl. Stecker's sergeant called him a "resourceful, intelligent, poised professional police officer." Cpl. Nelson's supervisor described him as "dependable, responsible and one of the most knowledgeable officers" he knew.

We need to quit jailing defendants for tickets. It's repugnant to liberty. If we are going to throw people in jail for tickets they need the same legal protections as other defendants. Otherwise, we will have more situations like this.