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.

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.

Recently, I was appointed to a misdemeanor pot case in Kaufman. Yet another reason you should support HB 902, so you can quit paying me to fight this nonsense. The appointment sheet listed the charge as possession of marijuana under 2 ounces; a class B misdemeanor and that bail was set at $100,000.

Convinced this was a typo, I called the jail to confirm. It's true. This defendant has no holds, no blue warrants, no probation revocation, no other charges and the magistrate set a $100,000 bail for a joint.

One of two things is at play here. Either the defendant royally pissed off the magistrate, or he has some prior criminal history. The former is a fairly rare circumstance. As to the latter. Does arrest for non violent meaningless victimless "crime" + criminal history= trapped in jail with a ridiculously high bond. Is that an equation for justice?

When bail is set there has no been no trial, no hearing, no day in court. Innocent people are arrested every day. Bail is supposed to insure that a defendant will return to court. More often, it's used to punish defendants before a case is filed. Another "beat the rap, not the ride" element of the criminal justice system.

So now I have to call the DA to work out an agreed bail reduction, or file a Writ and have a hearing to get bond lowered. Either way, it's your tax dollars wasted on another pot case.

The first Kaufman bar meeting of 2009 was today. Bar president Tracy Booker and Secretary Keenya Greeling did great work planning the vent. Turnout was higher than usual with around two dozen lawyers crammed into the law library.

One of the goals for the Kaufman Bar is to have CLE at every meeting. If you are a CLE speaker and will drive to Kaufman (county east of Dallas) let me know.

Today's speaker was Ted Lyons. Ted is a civil trial attorney with a history of huge verdicts. Mr. Lyons offered his insight into successful trial litigation. Here is a breakdown.

Ted point 1-To successfully represent your client at trial you must understand him. It's not enough to know the facts of the case. You must spend enough time with the client to understand his thought process, pysche, biases, motivation, etc.

This can be a struggle for defense lawyers, especially with appoitned cases. The disparity between my appointed clients and myself is epic. It's not just an economic difference. I have a law/college/high school education, they don't. I am lucky enough to be free of serious mental/physical illness, they aren't. I grew up with two loving parents in the suburbs, they didn't. My parents didn't abuse me, use drugs, or spend time in prison etc.....

Also, the pace of criminal defense can make this a hard practice point. The less clients you have, the more you charge, the more time you can devote to understanding your client. This is an area I wish I had more time for.

Ted Point 2- Clients should approach the jury as a potential employer, and the trial as a job interview. Mr. Lyons talked about the presentation of your client. It's important for your client to look good for the jury.

Another area I don't spend enough energy on. I have a form letter telling my clients to dress appropriately and not wear hats or shorts. However, some of my clients don't own a suit and can't afford a nice trial outfit. Some of my clients are brought to court in chains (not in front of the jury though).

Finally, I'm not exactly a fashion guru. My wife dresses me (no shame in admitting that). That doesn't mean I shouldn't explore the role wardrobe plays in influencing a jury. Any studies on this?

Ted Point 3- Trial exhibits are important. Agreed. Ted is particularly fond of chronological time lines.

I agree completely that exhibits are vital to any case. Some jurors learn visually and you can help them understand your case by using power point, a chart, or even a dry erase board. Presenting evidence to a jury means adapting that information for the widest possible audience.

Ted Point 4-, Ted extolled the value of focus groups and mock juries. When Mark Cuban gets arrested for DWI, and hires me, then I will have my first client who can afford a focus group.

Until then, I stand on the shoulders of giants and keep up with juror research and psychology. That isn't as effective as a focus group for a particular geographic area, but it's cost effective.

This is an area local criminal defense bars could help their membership. Pooling funds to sponsor a focus group/mock jury with routine DWI issues for example. See how locals feel about field sobriety tests, refusals, and breath tests.

Mr. Lyons was a great speaker, his trial track record is testament to his methods. It was a pleasure to have him speak, and if you are injured, and need a case tried, call Ted.

I launched the Kaufman County Bar's first website last week. KaufmanBar.com will answer your Kaufman Bar questions like

When is the next bar luncheon?
Who is the bar vice president?
When is the next bar luncheon?
When is the Christmas party?
And finally, when is the next bar luncheon?

Bar president Tracy Booker is going to help with content. To keep things simple this is just a blogger page. I'm trying to get blogspot.com address to redirect, but I've not been successful. If you can tell me how to do this let me know.

The police pull you over and find a suspicious white powder in your car. You swear this powder is for your athlete's foot. The police believe this powder is cocaine.

You are booked into jail. Bail is set at $25,000. The powder is sent to the DPS lab for further testing. You spend two weeks in jail but the DPS lab report comes back negative. Vindicated, you leave jail, short two weeks of life you will never get back.

Think that never happens? You must not practice criminal defense in Texas.

A similar situation with a client led me to file an open records request with DPS. I asked for documentation of cases in which "drugs" were sent to the DPS lab, tested, and found not to be drugs. Here is a copy of my email I sent to the DPS Public Information Office. (To learn how to send your own Open Records Request, click here).

Please accept this email as an open records requests.

Please send all documentation of DPS lab drug testing in which a substance turned out not to be a controlled substance (including marijuana). Please send all offense/arrest reports for these cases.

Please include Dallas and Kaufman County. Please limit this request to cases from 1/1/2006.

I would also like any training manual for testing controlled substances in the field, and DPS lab testing of substances.

I received 62 cases from Kaufman County, and over 500 from Dallas County!! I am still awaiting the police reports on these cases.

Questions I have-
Were these substances all field tested? Were those field tests positive?
Did the suspects tell the police these were not drugs? Did the cops ignore these pleas?
How long did these suspects sit in jail? What was bail set at?
How many of these tests were for marijuana? In Texas, the police can testify that a substance is marijuana. For other drugs, a lab test is required to confirm the substance is narcotics.

Finally, whenever Dallasnews.com does a story on the horrible conditions in the Dallas jail, there are always a few comments on the lines of "Don't break the law, and you won't go to jail!" I wonder what these people would say to the 500 people arrested in these cases?

I'll update as the story progresses.

Me.

The Kaufman County bar met today and held officer elections. The results are in. No recount needed.

President- Tracy Booker
Vice President- Me
Treasurer- Lisa Gent
Secretary- Keena Greyling

One of the first goals of the Booker administration is to set up a website. We are also seeking to have CLE at every bar lunch meeting, and upgrade the law library.

If you are a CLE speaker and want to appear before the Kaufman Bar please email me.

No one plans on getting arrested in Kaufman County. If you do, be sure and check out this recommended bond schedule for Kaufman County.

Kaufman County Recommended Bond Schedule

Are you considering possessing marijuana in Forney? If you get caught and have no prior convictions your recommend bond amount will be $750.

Plan on cornering the drug market in Terrell? A first degree drug charge will mean a bond of at least $50,000.

Finally, don't plan on violating your felony probation with a new criminal offense. The chart suggests that no bond be set in that situation.

This is just a suggested schedule. Judges who set bail are free to decide each case individually.

Have a loved one stuck in the Kaufman County Jail with bond set too high? Here is some information on the typical bond issues in Kaufman.

First, bail is set once a day in Kaufman, between 8-10AM. If you are unlucky enough to get arrested at noon, you may be stuck until the next morning. Our 4 JP judges rotate setting bail and follow a suggested bail schedule (I will post a copy tomorrow).

Once bail is set you can either post a cash bond (put up all the money yourself) or contact a bail bondsmen. In Texas attorneys can write bonds but it's not a service I offer. Bail bondsmen in Kaufman charge around 10% of the total bond. For example, if your bond is set at $5,000 you can either put up $5,000 in cash, or hire a bondsmen for around $500.

Your bond is your promise to appear in court at a future date. When your case is finished you will get back a cash bond, whereas you will not get back your money from a bondsmen.

Getting your bond lowered
For those with serious criminal charges, or an extensive criminal history, you may find your bond set higher than you wish. What happens in that situation?

If you can't make bail there are two ways to get your bond lowered- by agreement, or by a Writ. If the DA will agree to a bond reduction then the judge will usually sign an order lowering the bond. Many factors influence if the DA will agree to a bond reduction.

Barring agreement, you have to file a Writ of Habeas Corpus and have a hearing. A bond reduction hearing isn't a sure thing. The judge could raise your bail if she wanted to.

Examining Trial
In felony cases there is another option to escape jail that is not often used in Kaufman- the examining trial. These were much more popular a few years ago but seem to have gone out of style. An examining trial makes the state put on a minimum amount of evidence to keep you locked up. It is only available pre indictment. If you "win" an examining trial bond is not lowered, you are let go. However, if your case is later indicted you will get rearrested.

The Kaufman County Bar Association had a meeting last week, and... I missed it. I was in court in Ellis County. The topic of the day was the formation of a new UNT law school in Dallas. Here is UNT's proposal.

I am torn on this proposal between self preservation/legal profession concerns and my usual libertarian ideals (let the market sort things out).

Concern #1- Supply and Demand.
Adding another 100-200 new attorneys annualy to DFW will decrease the cost of legal services (our salaries may go down). When you raise the supply of a good/service, ceterus parabus, the price will go down. No attorney is exited about that.

My libertarian/free market response- The market should set prices. The price of legal services shouldn't be artificially raised by limiting supply. Established attorneys need to meet consumer demands, not rely on limited competition.

Concern #2- What kind of legal education will this be?
Not many new law schools begin with a reputation for quality. The public won't be served if UNT is turning out low quality attorneys. Here is a great article from temporary attorney on the proliferation of "toilet" law schools.

My LFM response- The consumer should be able to choose whatever attorney they want. If they want an SMU, TWU, UNT or Harvard attorney that is up to the consumer.

Concern #3- Whither Texas Tech?-
My alma mater Texas Tech gets a lot of students from DFW who are looking for a public school option in legal education. Will students go to Lubbock if they have a public school option in Dallas?

My LFM response- Texas Tech will have to compete with UNT and offer a better product. Students can choose TTU or UNT on the merits.

Concern #4- Wage Slave Attorneys
UNT could end up producing attorneys with huge debt and bleak job prospects. These UNT law grads should read temporary attorney (headline; Recent Law Grads- $12 per hour) for insight on their possible future. It seems the main beneficiary of the student loan/law school trap are the law schools.

My LFM response- Prospective law students should be able to make an educated cost/benefit analysis concerning a legal education. The federal student loan program is largely to blame for runaway school costs by removing elasticity from law school tuition prices. That is, colleges can raise tuition ad naseum without suffering a loss in applicants only because the government has made cheap loans available. In turn, law students end up with crushing debt, and a law degree.

So, am I for or against the UNT proposal?
Neither, we could solve all of these problems by simply moving Texas Tech School of Law to Dallas! Not really an option at this point, but why not?

The Kaufman County Bar met today. The luncheon was held at Maples Hall, a restored building from 1890 that you can rent for gatherings. It's an amazing structure and I highly recommend it. If you are in Kaufman, and need to meet for any reason, use Maples Hall.

Kaufman DWI Court
Kaufman is instituting a new DWI court program. What is DWI court? Basically, it's a new way for our criminal justice system to address addiction. The old way of addressing addiction- incarceration, has not proven effective at changing behavior. An alcoholic who leaves jail is still an alcoholic.

How do you get in DWI court?
This program is designed for felony DWI cases, as well as those on probation who are showing signs of addiction (failed UA's, drinking). Instead of being revoked and incarcerated these defendants will enter the DWI court program.

DWI court requires the probationers to meet with the judge every week to discuss their situation. Defendants will be responsible for attending AA/NA meetings, and getting medical treatment or counseling.

Any criminal defense lawyer will eventually have clients with addiction problems. I encourage my clients to solve these issues outside of the criminal justice system before accepting a plea bargain for probation. While I'm never exited when my clients are found guilty and put on probation I hope this new probation program will be a success.

I'm jumping late on the blawger iphone picture bandwagon. Here is a picture I took on August 20th on my iphone. It shows the front lawn of the Kaufman Courthouse at 2:30pm.

Why such a banal photo?

Well, the sprinklers were on at 2:30pm, during a rain storm, during the wettest August week on record. This photo is worth at least 1,000 words on government.

I had a pre trial hearing today regarding the broken Intoxilyzer machine in Kaufman. In Texas, technical supervisors are employed by DPS to maintain and verify these machines.

I was looking to suppress the evidence from a machine that had proven to be faulty and was taken out of service. We had a spirited hearing for 90 minutes, and my suppression motion was denied.

However, there was some interesting testimony on the I-5000. As a public service, here is some information on the Intoxilyzer 5000 (I-5000) and Technical Supervisors (TS).

1. Technical Supervisors have no repair on maintenance manual for the Intoxilyzer. If an I-5000 breaks a TS can only replace parts. If that doesn't work, they send it to Austin.

2. Technical supervisors only know an Intoxilyzer is broken if and when the Intoxilyzer tells the TS that it is broken.

To see if an I-5000 is working correctly a TS will ask the I-5000 to perform a self check. If the self check comes back ok, the machine is verified as accurate.

Wait a minute? If a machine is broken or malfunctioning, it may not run a self check correctly?

That's right. If this was a case other than DWI that would be a problem. However, we let all kinds of phony evidence in on DWI cases.

If an I-5000 does not self report that it is broken, no one knows. Not the TS, the prosecutor, defendant, defense lawyer, or jurors. TSs do not have any way to independently verify that an I-5000 is working properly.

3. TSs can not tell if the self check software is malfunctioning. TSs do not know how the software works.

Actually, it's worse than that. TSs don't know how ANY of the I-5000 software works. What formula does the software use to calculate BAC from photons? Ask the company.

The Kaufman courthouse has been evacuated. Allegedly, someone called in a bomb threat.

Texas law makes it illegal to call in a fake bomb threat. Here is the law. The question is... is today's bomb threat fake? I really hope so. And, is a courthouse a "public service". If so, this is a State Jail Felony. If not, this is a misdemeanor.

§ 42.06. FALSE ALARM OR REPORT.
(a) A person commits an offense if he knowingly initiates, communicates or circulates a
report of a present, past, or future bombing, fire, offense, or
other emergency that he knows is false or baseless and that would
ordinarily:
(1) cause action by an official or volunteer agency organized to deal with emergencies;
(2) place a person in fear of imminent serious bodily injury; or
(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.
(b) An offense under this section is a Class A misdemeanor unless the false report is of an emergency involving a public primary or secondary school, public communications, public
transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony

Besides being inaccurate, Intoxilyzer machines break down frequently.

Last year Kaufman County's DWI breath test machine was taken out of service. Here is what happened.

Reference Sample
Breath test machines are never calibrated on humans. By that, I mean that you don't have a human take a breath then a blood test to see if the machine is accurrate. Instead we rely on reference sample solutions. These solutions are designed for the machine to report a 08 bac.

Horseshoes, Hand Grenades, and Breath Test Machines
In this case the machine was given a reference sample to analyze. What should the machine score a .08 sample to be verified as fit for service? After all, we are convicting Texans with this machine. How accurate should this state's witness have to be?

If you guessed .08 you'd be wrong. Reading from .073 to .087 are acceptable. Good enough for government work.

This particular machine broke down on 1/9/07. What happened to the DWI defendants from the days and weeks before? Did they receive a letter that the machine was broken? Cases dismissed maybe?

Nope. Unless they subpoenad these records, or filed an open records request, these defendants would have never known they blew into a broken machine.

Some would consider material of a broken inaccurate breath test machine to be Brady material. However, DPS decided not to tell anyone about this broken machine.

RACIAL PROFILING PROHIBITED. A peace officer may not engage in racial profiling.

This begs the question- What is racial profiling?

From the Code of Criminal Procedure-

law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity.

Texas racial profiling law also requires each law enforcement agency to keep statistics for each officer. The number of arrests, searches, tickets, and warnings are broken down by the race of the suspect. It is then up to the public to examine this information to discover any possible profiling.

Here are the RP stats for Kaufman County DPS troopers.

How To Order Racial Profiling Stats For Your County
Very simple process. Just send an email to pio@txdps.state.tx.us, and request racial profiling statistics for all officers in your county. The information comes in excel, so you shouldn't have to pay anything.

More How-To Open Records Posts
Open Records 101
Open Records 102

I am proud to announce the beginning of the Kaufman Criminal Defense Lawyers Association. KCDLA is open to all who practice criminal defense in Kaufman County. If you want to join, send me an email, or click below.

KCDLA

Visit this group

Yesterday I caught the last half of a death warrant hearing. This was the first case set for a death warrant in Kaufman County since the Supreme Court ruled that lethal injection was not cruel or unusual punishment.

What is a death warrant? In Texas, when a defendant who has been sentenced to death has exhausted his appeals the court may set an execution date. The date is up to the judge, however,Texas law requires that no convict be executed until after 6pm.

I had some other cases set that morning. I came in about 15 minutes late to the death warrant hearing. I walked in as the judge was reciting the procedural history of the case, the dates of the trial, the sentence, etc. The judge then ordered that on September 17th the defendant be injected with various substances until he died. The judge ended with "May God be with you".

That was it. The defense attorney walked over to the woman in front of me who was crying. It may have been a relative of the defendant. I can only speculate.

The victim in this case was 93 year old Rena Ratcliff. The man sentenced to die for her rape and murder was William Murrary. . I have no first hand knowledge of the facts in this case. I have heard Mr. Murrary confessed to this horrible crime and that guilt was not really an issue.

On the death penalty
I have not blogged much about the death penalty. I have never worked on a death penalty case and I may never take one. My beliefs on capital punishment?

I believe killing innocent people is wrong. Our legal system is not capable of accurately sentencing people to death. The government is not capable of screening death penalty cases for innocence. Capital defense is adequately not funded. Finally, government actors are routinely corrupt or incopmetent. Therefore, I believe all executions should be halted.

I'm getting a lot of searches for "Kaufman County District Courts." A few of these readers may want logistical information, not criminal defense lawyer musings. Here is some basic information for the public

Kaufman County District Courts
Kaufman has two district courts. They handle felony criminal cases, family law cases, and other civil lawsuits. Both are located at the downtown courthouse.

Kaufman County Courthouse
100 W. Mulberry St.
Kaufman, Texas 75142

86th District Court
Judge Howard Tygrett
This court is located in the middle of the 2nd floor of the courthouse.
Phone: 972-932-4331 Ext. 1251

422nd District Court
Judge B. Michael Chitty
The 422nd is located at the end of the first floor.
Phone: 972-932-4331 Ext. 1257

I haven't contributed to the blog discussion on the West Texas Polygamy raids because I know very little that is not on CNN. However I have dealt with CPS in Kaufman County and in East Texas

I had a contested hearing on a removal by Kaufman CPS. I am not sure if this experience is reflective of all CPS cases in Kaufman. However, I was taken aback by the process.

For starters the CPS attorney referred to me as a National Socialist German Workers Party member. My "Nazi" actions were to have a contested hearing challenging a CPS removal and then actually filing discovery (which was disallowed). I couldn't believe that CPS could take children from their parents and the parents could be denied the ability to learn anything about the removal through discovery.

The contested hearing featured a constant running dialogue/objection from the CPS attorney. I have never had opposing counsel simply talk the entire time during my questioning. It was surreal.

It seemed that CPS started with a conclusion (the parents are bad and must be rehabilitated) and then ignored all evidence to the contrary. If the parents want their children back they must enter "the program" of CPS supervision and classes.

I will not be surprised if the polygamy raids fall apart for lack of evidence. I expect CPS and law enforcement to hold these children hostage until the parents "cooperate" to get their children back. There are serious problems with child abuse in Texas. However, government needs to be accountable for taking children away from parents.

On the Arrogance of Government
The "tip" that led to the polygamy raid has turned out to be false. On the TDCAA message board "RTC" remarked that law enforcement should have done a better job investigating before sending in the SWAT team to take 400 children away from their parents.

Williamson County DA Jon Bradley quickly responded with his typical Statist apologetics.

For the benefit of any law enforcement officers who may frequent this web site, please understand the preceding post does not represent the opinion of TDCAA or prosecutors in general. The poster's identity is anonymous but, based on his previous postings, is likely not a prosecutor or even someone involved in law enforcement.

He probably sees no irony in the rather cowardly way he has stated an unsupported conclusion (i.e., that law enforcement somehow failed in their initial duty to investigate) and left his identity a secret to avoid being mocked and identified publicly as a silly finger-pointer who hates law enforcement for no better reason than it makes him feel better about himself.

According to Mr. Bradley questioning an unjustified SWAT raid makes one "a silly finger pointer". There seems to be no circumstance under which Mr. Bradley can question any aspect of government action.

I am sure that Mr. Bradley's rhetoric has a lot to do with making himself feel better. After all he spends his days destroying lives to further Prohibition. That would make a normal person feel pretty bad.

John Adams helps breaks down Mr. Bradley's myopic views-
Power always sincerely, conscientiously, de très bon foi, believes itself right. Power always thinks it has a great soul and vast views, beyond the comprehension of the weak.

As long as I have been practicing criminal law I have been watching DWI videos. As a prosecutor in East Texas DWI videos were on VHS tapes. This was very inconvenient for trial. I had to write down the time stamp for each scene I wanted, while noting all any objectionable material (defendant's criminal history blaring over the police radio) etc. I spent time at trial awkwardly fast forwarding, reversing, pausing etc. Very cumbersome, those old VHS tapes.

In Kaufman County DWI videos are on DVD. Not a great technological leap forward from VHS. A DVD has a better picture, and is more convenient to browse. However, a DVD offers no more information than a VHS tape.

AVD Viewer-
Today I received a DWI DVD from the Kaufman District Attorney. It was an incar video from the Terrell Police. It looked like all the other DWI DVDs I usually receive. However, when I loaded the disc into my work computer a new program opened up. I usually watch DVDs on Power DVD. This disc opened up in AVD Viewer, a program by L3 Communications.

AVD viewer is a real leap forward. For starters it has a panel of "triggers" that tell you when the police are hitting the brakes in the car, or when the emergency lights are on, inter alia. AVD also allow me to choose which microphone to listen in on. For example- I could listen to the in car mic, or the officer's personal microphone. It also allows the user to pick between different police car views.

The disc also includes a chain of custody page where I can see who logged the video into evidence. My only gripe is that the program seems a little buggy. It will freeze up on me more than I like. As a DWI defense lawyer I prefer even a buggy DVD that contains more information. Overeall AVD is not a Star Trek leap forward in technology, but a good start.

Greetings, I am Robert Guest, criminal defense lawyer in Kaufman, Texas. I am ready to help fight your case. I understand the stress, uncertainty, and embarrassment many criminal defendants face. I can guide you through the criminal justice system.

I want you to call me now at 469.376.1000. I will answer your questions about bond, bail, possible jail time, probation, trials, plea bargains etc. The more you know about your case and your options, the better decisions you will make.

I defend any and all criminal cases in Kaufman County including-
DWI- Driving While Intoxicated
Intoxication Assault
Intoxication Manslaughter
Assault, Sexual Assault,
Family Violence
Possession of Marijuana
Possession of a Controlled Substance
Probation Revocation

If you are charged with it, I can help. Also, if you are looking to clean up your record with an expunction give me a call.

Feel free to browse my blog for my libertarian commentary on criminal justice.

For more information on my legal services go to my website- www.robertguest.com

Job Opening- Kaufman Public Defender
I have received a few emails from readers looking for criminal law jobs. The Kaufman Public Defender has an opening for an Assistant Public Defender. Call Andrew Jordan for details.

My First Job
...was with the Wichita County Public Defender. It did not prove satisfactory for a few reasons. First of all, the misdmeanor prosecutor would offer time served and no fine to 90% of my clients. The Sheriff had a policy of giving 2 for 1 credit for time spent in jail.

Typically I would be assigned a defendant who had spent 21 days in jail. Defendant would be placed on the jail chain and dragged into court. The DA would offer 42 (21x2) days time served, with fine and court costs paid for. The defendant had a decision to make- Get out of jail with no fine, or fight the case and stay in jail. Hmmmmm..... Tough choice.

It was a no brainer for defendant's to accept the plea bargain. I spent most of my time explaining plea papers and guilty plea consequences.

Labels: Kaufman County, Public Defender

You are arrested for DWI
In Kaufman County DPS is involved in most DWI arrests. DPS officers initiate many DWI stops on I-20. DPS troopers are also frequently called by local police to administer field sobriety testing. It is a rare DWI case in Kaufman that does not involve a DPS trooper.

You take some field sobriety tests, blow or not blow, and then a police officer subjectively and unilaterally decides you are intoxicated. You spend all night in Kaufman's really nice jail. Bail is set in the morning between 7-9AM. In Kaufman bail is usually between $1,000 and $3,000 for a DWI first offense.

ALR Hearing- If you hire a DWI defense lawyer within 15 days of arrest they will challenge the suspension of your license. These challenges are heard at an ALR hearing. ALR stands for Administrative License Revocation. ALR hearings are very hard to “win”. The rules make a State victory almost automatic. However, winning at the ALR hearing does not prevent the State from filing a criminal charge against you for DWI.

Occupational Driver’s License- If we lose at the ALR hearing your license will be suspended between 90 days and 2 years. You are allowed to apply for an Occupational License to drive to work and to perform essential household duties.

Indictment/Information- The criminal case against you begins with either an indictment or information. In Kaufman County this takes between 3-6 months, sometimes longer.

Misdemeanor DWI cases begin when the State files an information. An information is merely a piece of paper signed by the prosecutor stating that you committed DWI on a certain date. Once that is filed you will be assigned a first court appearance.

If your case is a felony DWI (DWI 3rd or more, DWI w/child passenger) you will be indicted by a grand jury.

1st Appearance/Announcement- After your case is filed you will be notified by mail (usually) of your first appearance in court. You MUST keep in contact with your bail bonds company during this time. Your bail bondsmen or the court should notify you of your first court date.

DWI Pre Trial Hearings Most DWI cases could use a pre trial hearing. DWI is such a technical, scientific, and procedure intensive crime. A suppression motion, motion in limine, or discovery motion is always in order.

Trial-All criminal cases end one of three ways- a plea bargain, a trial, or a dismissal. Sometimes a DWI case will be refiled as "Obstructing a Highway" as part of a plea deal. Almost every case set for trial in Kaufman County Courts are DWIs. No misdemeanor case carries more cost upon conviction.

To ensure the best results for your Kaufman County DWI here are some guidelines.

1. You do not have to take field sobriety tests. These tests can not detect if you are sober. The false positive rate is astronomical.
2. Don't give a breath sample unless you are 100% sure that the machine works, and you are below the legal limit. Why would you voluntarily give the State their favorite piece of DWI evidence?

Failing to give a sample will result in a longer license suspension, so the decision is not without risk. We had a breath machine break in 2007. Many defendants plead guilty without knowing their breath machine was faulty. Don't assume your machine works, or that you can challenge this later. The

If you are not intoxicated and the machine malfunctions and scores you at .16, don't expect the cops to let you go. Belief in the Intoxilyzer 5000 is dogmatic among law enforcement.

Finally, even if the machine is accurate a breath score opens the door for the voodoo science of retrograde extrapolation.
3. Hire a DWI defense lawyer as soon as possible. The ALR hearing is of critical importance. Do not give up your opportunity to defend your right to drive.

Kaufman County Online reports on where local candidates stand on building a new courthouse for Kaufman County.

To summarize the arguments-

Pro New Courthouse- The current courthouse is too small, we need to expand. Let's move the courts next to our new jail (next to the highway).
Anti New Courthouse- Voters rejected this idea. Quit issuing bonds and raising taxes. The voters rejected a new $22M courthouse two years ago.

Some Background
The Kaufman County Courthouse is located on the Courthouse Square in downtown Kaufman.
Texas has some great courthouses, Ellis County (Waxahachie) is my local favorite. One thing our courthouse does not have going for it is aesthetics. Our courthouse is.... not beautiful.

The courthouse hosts 4 courts, the District Attorney, District and County Clerk, and the County Judge's office. It is crowded and jury trials are difficult in the two smaller court rooms. Kaufman is growing and expansion is going to become a necessity.

Save Downtown Kaufman
Beyond dispensing justice and solving legal problems the Courthouse also sustains downtown Kaufman. The square is host to numerous law offices (including my office), retail, and restaurants. My favorite lunch stop on the square is Kudo's.

Moving the courthouse would kill downtown. There are many buildings for sale on the square. I have often considering buying. The possibility of the courts moving is depressing downtown real estate values and deterring investors.

Some ideas
If town squares have value, then Kaufman's is worth saving.

Plan 1-
I propose that the county purchase some of the empty buildings on the square and relocate some non court offices. Or, buy the land northwest of the courthouse and build a new courts building there. Maybe make one court building for county courts/clerk and one for district courts/clerk.

Plan two-
Create criminal courts and move those next to the jail. That would cut down on transportation costs for prisoners and leave the courthouse open downtown.

Plan 3-
Legalize drugs. This would reduce the need for more jails and court rooms and increase sales tax revenue. A win/win. I'm not sure if our county commisioner's would support this plan.

Probation 101
Despite the best efforts of defense counsel the vast majority of criminal cases end up with a plea bargain. In Kaufman County the vast majority of plea bargains involve probation. In general, compliance with probation terms means a defendant can avoid jail time.

Here is page 1 of an Order Imposing Conditions of Community Supervision for Kaufman District Courts. Let's take a closer look at what can send probationers to jail. (Note- Probation and Community Supervision are the same thing).
First their are the obvious rules 1,2,6, 8,13 etc. Report to probation, don't use drugs or commit any more crimes, take drug tests.

Then they are the "give us our money" rules-14, 15, 16, 17. Nothing raises revenue for the government like the threat of incarceration.
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Now for the stupid rules
Rule 3- "Avoid persons and place of disreputable or harmful character including... any person convicted person convicted of a crime or on community supervision." What makes a person disreputable? How does a place have "harmful character?"