Dallas Criminal Defense Lawyer Blog

District Attorney vote totals from last night's GOP primary-

Rick Harrison- 3,110
Andrew Jordan- 2,764
Mike Mclelland- 3,479

It was an interesting development as the early vote totals had Mr. Jordan in 2nd and Mr. Harrison in 3rd, respectively. I quit watching before all the Forney precincts had been posted. It appears Rick got a significant push from Forney voters to put him in the run off. Round 2 of the Kaufman DA election will be April 13.

In other election news Howard Tygrett won re election (86th Judicial District Court Judge) against Raymond Shackleford, Rhonda Hughley defeated Angela Webb for District Clerk, and JP2 in Forney is going to see a run off between Wade Gent and Patricia Ashcroft.

Finally, the world will be watching as the Ellis County Libertarian party holds their county convention on March 13, 2010 at my house in Ennis.

Yes that is an SEO friendly title and I know the blog world looks down up self promotion, but I can't help it. I'm proud of this accomplishment and I'm going to toot my own horn for a bit. If you want something substantive on criminal justice try this excellent Grits post about hatchet man John Bradley's cover up work on the Forensic Science Commission.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What's the rule on conflict in Texas?

Rule 1.06 Conflict of Interest: General Rule

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

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

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

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

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

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

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

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

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

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

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

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

The Kaufman County Bar Association is conducting our soon to be annual judicial evaluations. If you are a member of the Kaufman Bar, or a lawyer who practices in Kaufman county and interested in becoming a member shoot me an email and I'll send you the forms.

These forms are, of course, completely confidential. We hope to have the results in the next few weeks.

This past Wednesday was the final Kaufman County Bar meeting for 2009. What a difference a year makes. It was only twelve short months ago when a dozen lawyers met for what was only then 5th KCB meeting of the year and elected Tracy Booker, myself, Keena Greling, and Lisa Gent to office.

Largely due to the hard work by President Booker and Secretary Greyling 2009 saw monthly meetings (each with CLE), and a huge spike in attendance. Things are looking up, and more organized for the KC bar.

So who will lead the KC bar into 2010?

President- Keena Greling
Vice President- Me
Secretary- Prescot Smith
Treasurer- Lisa Gent

I was considering a run for President. In Kaufman it is customary for the VP to become the P the next year. However, Keena was outstanding her role as Secretary and righftully ran unopposed.

Do you want to hire me, or sue me?
The officer elections were overshadowed by a heated debate over a State Bar proposal that would require attorneys to disclose whether or not we carry malpractice insurance. The vote was 40-0 against the idea.

What's wrong with this requirement? Basically it is a huge competitive disadvantage for solo lawyers with little, if any, benefit to consumers.

Our very nice, and slightly overwhelmed State Bar rep had the unfortunate job of pitching this idea to a group of semi-hostile lawyers. The last thing solos want in this economy time is another requirement from the State bar for another rule that could get us grieved for a measure that if passed, will either brand a lawyer with a scarlet letter (I'm too broke or incompetent to get legal mal insurance!) or cost thousands in premiums.

Malpractice insurance is generally offered on a claims made basis. That is, it doesn't matter when you did the work that got you sued, you are covered for all claims made during any coverage period (typically one year). Ergo, the larger body of work you have to be sued for, the more you pay. A relatively young (6 years in) lawyer like myself would pay less than a solo who has been out for 20+ years. Big firms can bargain for better rates in a way smaller firms can not. Just like health insurance you want to get a huge group to pool risk. I'm solo, I don't have a pool to spreak my risk around in, maybe a bath tub at best.

Who benefits from this? Consumers allegedly, but that doesn't make sense to me. I've never had a client ask about malpractice insurance. I would hope a prospective client is not already considering litigation against me and weighing how much they can recover. I've never had a client file a legal mal claim. Unlike grievances, lawsuits for legal malpractice are exceedingly rare.

The fantasy of consumer benefit doesn't mask the reality of windfall profits for insurance companies. If I was selling legal mal insurance I would lobbying the State Bar to make my product quasi mandatory. Most solo lawyers know their odds of getting sued for malpractice in any year is around 0%, so they eschew legal mal insurance. What is an insurance company to do to get low risk attorneys to pay premiums for a product they don't need? Pass a disclosure law.

If this measure is passed (and the details of what kind of policy/disclosure) have not been worked out, I am going to lobby my State rep for legal mal caps on damages against lawyers. Attorneys need some legal mal tort reform! If you want all lawyers to have legal mal insurance then why should we let frivilous lawsuits drive up our premiums!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More breaking Kaufman County election news. Angela Webb, court coordinator for County Court at Law (Hon. Judge Wiley presiding) is going to run for District Clerk. The current clerk, Sandra Featherstone has announced she will not seek reelection. I am going to miss Sanrda and I wish her nothing but the best in future endeavours.

Here is a Q&A with Angela-

1. Background/resume
I have over 10 years experience in county government (county clerk, justice of the peace, & CCL) & have earned the title of court administrator through the Texas Center for the Judiciary. (just a side note - currently, I'm the only one in the county with that certification.) I have about 200 hours of CE credit.

2. Why do you want to be Kaufman county's district clerk?
I want to assume the responsibility of district clerk because I believe I am ready to take my career in county government to the next level. I want to continue the tradition of service and professionalism Sandra has established while transitioning the office into a more "modern" atmosphere.

3. What experiences will serve you best if elected?
I've had over 10 years experience from the JP to district level. I've managed the budget for CCL & CPS indigent defense for several years, as well as, managing personnel matters.

4. Are you nervous about your first political race?
yes

5. Do you have any policy ideas or changes you want to implement?
Yes, one of my first goals will be to implement e-mail communications. Additionally, I will take steps to implement e-filing.

6. If elected, will you allow thumbprinting of felony defendants in court? Right now I have to take my arm and leg shackled client up a flight of stairs to get a thumb print for the plea papers. Just an idea.
Yes.

7. Anything else you want the voters to know.
I want the voters to know that I am hard-working and honest. I will serve the citizens of Kaufman County with integrity and professionalism.

As part of my regular open records work I ask for LEO disciplinary records. Today I received a thick envelope with over 60 pages of complaints and source material, including a DVD I haven't watched yet. This complaint stood out-

On March 7th, 2005 Trooper XXXX was counseled for requesting a cigarette from a female he didn't know, in a public place while on duty and in uniform. The arrested person later complained that Trooper XXXX was flirting with her, and took the cigarette pack from her without permission, and then arrested her when he discovered it contained a marijuana cigarette.

If the indignity of being hit on and having your smokes stolen by a uniformed officer wasn't enough this poor lady was arrested for the "crime" of carrying a joint. Marijuana prohibition, empowering LEO creeps for over 70 years.

I know what you're thinking- "One incident isn't so bad." It's still an abuse of power to steal cigarettes and sexually harass the public, but nothing like say using excessive force on a DWI suspect to impress your LEO girlfriend.

However, this Trooper had approximately 20 other complaints including sustained allegations of excessive force (allegedly slamming a DWI suspect's head into a rear window to impress his LEO girlfriend) and statements from a prosecutor and other LEO's who didn't want this guy around. This all happened (allegedly) in Uvalde in 2005.

What did DPS do with this problem officer? They transferred him to Kaufman. More on this later.

Kaufman county chief public defender Andrew Jordan is going to run for Kaufman District Attorney. My source? Andrew told me Friday. The GOP primary/de facto election is in March. Candidates have until January to file.

Mr. Jordan and Kaufman DA Rick Harrison met Friday to discuss the election. I was told that Andrew and Rick are both hoping for a clean campaign. I'm not sure how much the candidates can control the tone of the upcoming race. Reading the comments on other sites leads me to believe that ship may have sailed.

I have purposely not written about Mr. Harrison's DWI arrest because of the vitriol. I don't want to be a platform for sewer gossip. However, it's important to cover the Kaufman DA election so I'm not going to avoid the topic.

Whereas I am all for open debate and comments on ideas, not so much on people. Therefore, I'm going to strictly monitor comments on candidates, no anonymous comments will be allowed and I will delete anything I find objectionable. My comments standard willl be purely subjective and arbitrary. If you don't like the rules, don't comment.

Who is Andrew Jordan? Mr. Jordan is a 2002 graduate of Texas Tech law school. Andrew has completed the criminal law trifecta- prosecutor, private defense, and public defender. Mr. Jordan oversaw the creation of the Kaufman public defender's office, which by all accounts is a well run operation.

I believe that the PD was funded by a grant and that the future of said office is not yet certain. The local defense bar was not (and still is not) happy about the loss of court appointments to the PD. It's a sore subject on the square. What's not debated is that the indigent are well represented. Creating a new bureaucracy from scratch is not easy. Mr. Jordan has received accolades and well deserved media attention for the success of the Kaufman PD.

I've always believed that the job of District Attorney is more a management/political position than actual criminal law work. Creating and running the PD office is a valuable experience in that regard.

Andrew and I both worked under former DA Ed Walton (thought not at the same time). During my ADA tenure I had a DWI trial with Andrew as defense counsel. Andrew taught me a very important lesson that day- EMT's blood draws are not admissible in DWI cases. I will never forget that rule because it kept out my best evidence in that case. The defendant would have been acquitted had he not testified.

Note to potential DA candidates- I will post a Q&A with any interested DA candidate. If you want to be the next Kaufman DA shoot me an email.

Today was the monthly Kaufman County Bar meeting. We had an excellent civil law roundup by Crandall, Texas Attorney Keena Greyling. I'm very limited in my civil practice and I don't follow all the latest developments in insurance law etc. That being said, it's easy to predict the trends in Texas civil cases.

Anyone can predict 90% of the decisions that the Texas Supreme Court will make by answering this question- What verdict will help big business? (For the Court of Criminal Appeals just ask- what verdict saves the conviction?)

I remember this trend from my consumer law class at Tech. The neutering of the DTPA (consumer protection act) was in direct correlation to a big business/GOP takeover of the Supreme Court. Funny how that happens.

Another topic was legal outsourcing. Big Law firm has found a way to outsource legal work to India, making a fortune for the partners. Big Law hires Indian attorneys to do research which. American attorneys must "supervise" to ethically pass muster. This is troublesome as Indian lawyers are not usually licensed in Texas.

Big Law clients are prevented a menu of legal fee options. If a Big Law client wants legal work actually done by an attorney in Dallas you pay $XXXXX per hour. If you want Big Law to outsource your case to an Indian lawyer you pay $XX.

It's being presented as no different than a paralegal drafting documents for an attorney to review. Outsourcing lets Big Law cut out the licensed Texas associates and pass those savings onto the consumer. The potential win (if the work is of sufficient quality) for consumers is also a huge red flag to those considering law school. Future Big Law associates of the world, your job has been outsourced. Unless you can work for $20 an hour or open your own law firm, get your MBA.

Temporary Attorney chronicles the flight of legal work to India and the devastating impact of outsourcing on non-partner attorneys. TA should be required reading for anyone applying to law school.

Criminal law has usually proven resistant to economies of scale. One reason is that criminal cases require an actual body in the courtroom. I have to appear in Dallas or Kaufman or Waxahachie. I can't sent my Indian counterpart to speak with the DA or select a jury. An area in which the falling price of research could impact criminal law is appeals. Could an appeal or writ be outsourced to India? We'll know in a few years.

Kaufman is unique among Dallas bordering counties. Ellis and Rockwall have similar population numbers but Kaufman demographics are more rural. For example, Ennis (where I live in Ellis County) is larger than any city in Kaufman county. Kaufman is a spread out mix of ranchers, farmers, and smaller communities along with the commuter/family friendly cities of Crandall and Forney. It makes for a unique mix of jurors. It's always difficult to generalize about an entire county's jury pool, but that's what criminal lawyers do.

Locally, Dallas county has the reputation for more defendant friendly/skeptical of government jurors, Collin and Denton are regarded as the more prosecutor oriented jurors. Kaufman is somewhere in between.

Two recent verdicts show Kaufman jurors are open to probation and rehabilitaion, even for reprehesnible offenses. Both cases were open pleas (some call this a slow plea) where the defendant pleads guilty and then both sides present punishment evidence to the jury.

About two months ago a jury decided punishment on a burglary of a habitation. The defendant participated in a home invasion robbery but had no other record. The jury recommended probation. The punishment evidence took a week to consider. That's the longest punishment phase in Kaufman that I'm aware of.

This week the jury came back with a probation reocmmendation on an intoxication manslaugther case, where the defendant was already on DWI probation.

Two probation sentences isn't enough to extrapolate, and each case is unique. However, it shows that if you're willing to ask a Kaufman jury for probation in a felony case (and your defense lawyer is prepared) Kaufman jurors will listen.

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.

Kaufman is the county east of Dallas. Kaufman county is served by three major east-west highways; I-20, 175, and I-80. These highways see a steady flow of Dallas commuters, locals driving to Dallas and back for entertainment, Shreveport gamblers, and drug couriers. Basically, money comes from the east to Dallas, drugs flow out of Dallas towards Atlanta.

Kaufman law enforcement officers (LEO) dutifully carry on the futile sysiphean quest of highway drug interdiction. KC LEOs regularly intercept drug couriers and most of the cases shape up the same way. Let's look at the similarities.

Dirty license plates and out of state plates
LEO only needs reasonable suspicion of any traffic violation before pulling a driver over. The pretext stop classic in KC is the dirty license plate light. If you are driving with Louisiana plates I'd suggest you check your license plate light before entering Kaufman county.

What were you doing in Dallas?
Kaufman LEOs know that Dallas is the the Sam's Wholesale club of narcotics. If you are on a quick one or two day trip to Dallas the cops are going to assume you are riding dirty.

In Texas you are under no obligation to share travel plans with police. It's always better to shut up than ramble on. If the driver has any criminal history LEO won't believe the story anyway. Popular reasons for Dallas travel are job interviews and family functions. If you are going to tell the police you went to a family reunion over the weekend but you don't have any luggage in the car that raises a red flag.

Sit down and shut up
LEO can smell fear. Cops equate nervousness with guilt. If a suspect is over talking, has shaking hands, or gets out of the car before the police walk up it's usually downhill from there.

The Consent Search
Once LEO hears your lame ass trip to Dallas story and sees your hands shaking he will move in for the kill- the consent search request. I've written about this ad naseum. Here is the cliffs notes version- never, ever, give LEO permission to search your car.

I'm proud to announce the First Annual Kaufman County Bench Bar Conference will be held October 9, 2009. We are going to have at least 5 hours of CLE with a heavy dose of ethics.

President Booker and I are working out the final details. I am currently soliciting CLE speakers. If you are interested in speaking, either solo or on a panel, shoot me an email. It doesn't have to be ethics either, just interesting.

Today was the Kaufman county bar meeting. Our speaker was Kaufman district attorney Rick Harrison. Mr. Harrison discussed the new child advocacy center. The CAC provides a non-law enforcement environment for children to be interviewed.

We also discussed raising bar dues to pay for lunch/CLE. Kaufman bar dues are $50 per year. Pretty low for a county bar association. We may vote on this next time.

Kaufman Tea Party
The Kaufman courthouse was full of tea party goers (think they support a new courthouse?). I would estimate at least one hundred people were in attendance. I'm sure each tea party took on the flavor of local politics. Kaufman's tea party began with a prayer and the pledge of allegiance. I didn't get to see hear the speakers as the bar meeting was at the same time.

As a libertarian I'm for anything that reduces the size and scope of government. Spending hundreds of billions on a bailout guarantees the government must secure (steal) that money from future generations. Who am I to shackle today's young people with crippling debt? It's arrogance, cruelty, and selfishness of the highest order.

Watching the fervor of anti tax conservatives always makes me wonder why fiscal conservatives embrace big government social conservatism (prohibition for example)? Why is it evil for the government to tax and spend billions, but not evil to arrest pot smokers? I don't get it. It's two sides of the same coin to me.

Here is a photo I took on my I phone.

No new Kaufman county courthouse. County commissioners rejected, by a 3-2 vote, negotiating a planning fee with an architectural firm. Needless to say the response from those who work at the courthouse was not enthusiastic.

From Kaufman Herald.com-

With a 3-to-2 vote Monday, commissioners opposed a motion authorizing County Judge Wayne Gent to negotiate with the firm of Wiginton Hooker Jeffry Architects to determine a fee for planning of the proposed project. Gent and Commissioner Ray Clark voted in favor of the motion while commissioners Jerry Rowden, J.C. Jackson and Jim Deller opposed it.

“I don’t have any doubt that we need a new courts building. I’m here closer than any of the other commissioners and I see every day and everytime they have jury trials over there. I know how bad it is,” Rowden said. “What bothers me is the timing of it all. Our tax rate is already way high, and I campaigned on a platform of not raising taxes. I’m just not ready to add a nickel to our tax rate especially in light of the current economy.”

There is considerable taxpayer dissent on the issue. Just read the comments on the KH website. I don't live in Kaufman County. I do pay some business taxes and sales tax. I can understand why voters oppose this issue. They see it as all cost and no benefit. Kaufman is a fiscal/socially conservative county. They hate paying taxes, and they love locking up people for dope. Therein lies the problem.

I'm libertarian and I hate taxes. I would advocate ending the war on drugs to end the necessity of both a new courthouse and Kaufman's huge jail. It's the endless supply of drug defendants that fill up the jail, clog the felony dockets, and require mountains of tax dollars to warehouse and prosecute. That may not be possible the short run. However, it's that choice (Prohibition II) that makes bigger government/more spending a certainty.

Finally, I can't believe a tax increase is the only way to finance a courthouse. This is a recession, and we are all cutting back and prioritizing spending. Is there money is current budget that could be better spent on a new courthouse? That would create a turf war. But if the voters don't want a tax increase why not consider it?

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.

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.

Kaufman county needs a new courthouse. Why? First, the current building is too small to handle the growing population. The courthouse was designed for two courtrooms, but now houses four courts. There are no public restrooms upstairs, no attorney client meeting area anywhere (we use the very narrow and cramped hallways) the government offices are beyond cramped, the security area with the metal detectors was an ad hoc development that creates a pedestrian bottleneck for jurors, the law library is also the felony jury deliberation room etc, etc.

Another reason to embrace change is the courthouse's complete lack of aesthetic appeal. This sad blue cube doesn't evoke traditional Texas courthouse grandeur like say, the Ellis county courthouse. On the contrary, Kaufman's courthouse recently doubled as a mental hospital for a tv pilot (starring Dylan McDermott, it was never picked up).

It's one thing for lawyers to complain, it's another to generate voter support. The voters have spoken before, and soundly rejected spending their tax dollars on a new courthouse. Undeterred, the county commissioners may have found a way to build a new courthouse without voter approval- certificates of obligation. Tread carefully here pols.

According to Thomas M. Pollan, an attorney for the Austin-based firm of Bickerstaff Heath Delgado Acosta, the county has four funding options available, but of those only three are advisable and only one would allow for a more expedient construction schedule... “Of those, issuing general obligation bonds would require an election, which would not be able to placed on a ballot until November. Certificates of obligation would require publishing intent in the newspaper and a 30-day waiting period.”

From what I've been told, certificates of obligation can be spent on "law enforcement" buildings without voter approval. Why? Traditionally, voters have been less than receptive to using tax dollars to build new digs for criminals. Makes sense. (Note: This is conjecture, I don't have time to research the government code to verify).

The county jail is off 175 in a field of mesquite trees, completely disconnected from the rest of the town. Moving the criminal courts to that location would save the county thousands in transportation costs. Right now jail chain inmates are carried over in vans required multiple deputies. Building a new jail is expensive, but so is government inmate taxi service.

Local attorneys are nervous that such a move would "kill the square." They may be right. But that ship sailed when the new jail was built so far from downtown. It's inevitable that the courthouse is going to move and part of the legal culture on the square will be lost. Such is progress.