Thoughts for the New Year

As we say goodbye to the old year and enter a new year, I encourage everyone to live each day like it's your last.  We tend to take our everyday existence for granted -- until we hear of a loved one, a friend or a colleague who died way too early.

Don't keep putting off your dreams to some day down the road -- that day will never come and you will look back later in life wondering why you never got around to it.

Don't be afraid to lose (and lose BIG).  It's when you have something at stake that you perform your best.  Without someone being willing to lose big, we wouldn't have many of the constitutional protections we tend to take for granted.

Remember, it's okay to show vulnerability.  Letting go of your fear gives you permission to excel.

The truth about red-light cameras

So, according to today's Houston Chronicle, it appears that the introduction of red-light cameras in Houston has NOT reduced the number of accidents.  Despite a city-financed study showing the number of accidents at monitored intersections doubled in the first year after installation, Mayor Bill White (who has yet to meet a revenue-raising measure he didn't like) insists that the figures would have been worse but for the cameras.

The number of rear-end collisions increased from 55 to 90, the number of side collisions increased from 220 to 427 and the number of sideswipe collisions increased from 72 to 167 at the monitored intersections.  A Washington Post study showed that the number of accidents at monitored intersections in Washington, D.C., between 1999-2005, increased at a higher rate than at non-monitored intersections.

Apologists for the cameras claim that the increased number of accidents at those intersections are not due to the cameras but, instead, to the increased number of accidents in the city despite information from the Houston Police Department that the number of accidents in the city has decreased every year since 2004.

This latest data makes a very strong case for the camera opponents' assertion that the purpose of the cameras is increasing city revenues, not safety.  Since September 2006, more than 387,000 citations have been issued and the city has raked in over $20 million.

Supporters love the cameras because the $75 civil citations sent by mail to the registered owner of the car are virtually impossible to fight, as the burden has been shifted from the state to the citizen to prove he or she didn't run the light.  At unmonitored intersections, running a traffic light is a Class C misdemeanor meaning the burden is on the prosecution to prove the citizen ran the light.

Farewell to Sharon Levine

This morning, as we were eating breakfast with our girls, my wife asked me where Emory University was.  I said it was in Georgia and I asked her why.  She said she was reading the obituary of an attorney who was only 38 when she died after battling Hodgkins Disease.  I asked who and she read the name Sharon Renee Levine.

Sharon Levine, by her hard work and dogged determination, set into motion the events that led to the downfall of Harris County District Attorney Chuck Rosenthal.  Ms. Levine represented one of the Ibarra brothers who were arrested for videotaping a police raid on a house in their neighborhood.  Believing that her client had been arrested without cause, Ms. Levine took the matter to trial - twice.  After the first trial ended in a hung jury, the state offered a $1 fine in exchange for a guilty plea.  Again Ms. Levine and Mr. Ibarra declined and set the matter for trial. 

The jury in the second trial found Mr. Ibarra not guilty.  That verdict set the stage for the civil rights suit filed by the Ibarra's against Harris County.  The judge in that matter ordered then-D.A. Chuck Rosenthal to turn over e-mails to the Ibarras.  After defying the court's order, Mr. Rosenthal was forced to resign from office earlier this year.

The toppling of the Rosenthal regime was the result of Ms. Levine's tireless devotion to her client in a fairly meaningless (except for Mr. Ibarra and his family) case.

Rest in peace, Sharon.

Bailouts and public disclosures

Congress handed the banking industry a blank check earlier this year in response to Henry Paulson's doomsday-esque plea for a bail out of the financial sector. The banks readily lapped up OUR money like a junkie waiting for his next fix.

But now that questions are being asked about what those funds were being used for, the banking industry refuses to release that information to the taxpayers. What we know, so far, is that AIG continued to lavish its discredited executives with perks and that many other banks and brokerage firms showered their leaders with "retention" bonuses. Why anyone would want to retain the people who ran the companies into the ground is beyond my comprehension.

Loren Steffy, a business columnist for the Houston Chronicle summed up the hypocriscy of the financial sector with this column.

The men behind this financial farce have looted their clients, their stockholders and the taxpayers to line their own pockets. It's time for Congress to require the banks and brokerage firms to disclose how our money was spent. It's time for the banks and brokers to realize that when you borrow someone else's money, you have to play by their rules.

It's time the financial industry understand that beggars can't be choosers.

Merry Christmas

Here's hoping that everyone has a joyous and festive holiday of whatever variety you and your family celebrate this time of year.

I extend my sympathy to all of y'all who have lost a loved one this past year.

Finally, I hope that those families who are separated due to incarceration are able to be together soon.

The more I learn, the less I know

The other night I was watching Anthony Bourdain trekking through Peru and he made a comment (I'm sorry but I don't know who said it first) that the more he learned, the less he knew.  

At first it sounded quite paradoxical, but then, as I thought about it, it began to make sense.  When we are born we know nothing, our world is the six inches in front of us; but, as we absorb all that we come into contact with, our world expands.  

As a child we are the center of our own universes.  Everything outside is a mere abstraction.  But the more knowledge we absorb the more we come to understand that we are but a small piece in a much larger mosaic.

The same dynamic continues as we move into adulthood.  Seven years ago my (now)wife and I spent the holidays backpacking through Spain.  In those two-and-a-half weeks I learned a lot about Spain, her traditions and her history, but I also learned a lot about myself, my relationship with my wife and my country.  Things kind of fell into perspective as I sat in a church that was built before the pilgrims landed in the Americas for midnight mass.

As a criminal defense attorney I find the more I learn about DWI law, the breath test machine, police coordination tests, jury selection and closing argument, the less I know.  Every new door I open up reveals another.

Strive to know less.

"No Refusal Weekend" announced in Harris County through the New Year

Harris County will be carrying out another "No Refusal" assault on your rights between now and the New Year's weekend.  Interim Harris County District Attorney Ken Magidson made the announcement on Friday.  Here is the press release issued by the DA's office:

(Houston, TX) – The District Attorney’s “No Refusal” DWI program will be working with area police agencies to enhance enforcement against drunk drivers during weekends and holidays through New Year’s Day, District Attorney Kenneth Magidson announced Friday. 

Warren Diepraam, chief of the DA’s Vehicular Crimes Section, reported that initial figures indicate that the 16-month-old “No Refusal” is a valuable law enforcement and prosecutorial tool in the fight against impaired drivers. 

The program brings together prosecutors, a nurse, a judge and police experts at one facility. They expedite the process of obtaining scientific evidence on DWI suspects as soon as possible. Warrants for breath or blood samples are sought on drivers who refuse requests to voluntarily provide them. 

Prosecutors have prepared about 300 warrants during most major “drinking” holidays since the program was introduced over the 2007 Memorial Day weekend. Initial findings show the program: 

** Provides solid evidence against those who are more impaired than suspects who provide breath samples. The average breath test result is about .13 Blood Alcohol Content (BAC), compared to .17 for the average blood test (.08 is the legal limit). 

** Takes the guesswork out of decisions to prosecute. Only 2 percent of the suspects were under the legal limit of .08 and had no other intoxication substance in the blood. So the officers’ decisions to arrest are overwhelmingly supported by scientific evidence, and potentially innocent subjects go free. 

** Increases the rates of motorists consenting to provide breath or blood samples. The statewide refusal rate is about 50 percent. During “No Refusal” program nights, that refusal rate has dropped to as low as 35 percent. When combined with mobile testing units, the refusal rate has dropped to as low as 20 percent. 

I'm particularly amused by the claim that the "No Refusal" program "expedite[s] the process of obtaining scientific evidence on DWI suspects."  Waterboarding and other forms of torture have also proven somewhat effective at obtaining evidence.

The press release also notes that about 50% of citizens arrested on suspicion of DWI exercise their right to refuse the breath test while during a "No Refusal" weekend the refusal rate dips to as low as 20%.

The surest way to avoid being arrested for DWI during one of these assaults on your rights is not to get behind the wheel if you've had anything to drink -- call a cab, call a friend, use a designated driver.  However, if you plan on drinking and driving, please limit your consumption to no more than one alcoholic drink an hour - as the body burns off alcohol at the rate of about one drink per hour.

If you do find yourself wrongly accused of DWI, contact my office immediately.

DWI Crackdown? Or crackdown on your rights

In order to stop and detain a driver, a police officer must have reasonable suspicion that the driver is breaking the law. This could be anything from not signaling a lane change to having an expired inspection sticker to swerving into oncoming traffic.

Once the citizen has been detained, the police must have probable cause to believe a crime has been committed in order to place the citizen under arrest. Officers typically rely on several "signs of intoxication" including glassy or bloodshot eyes, the smell of an alcoholic beverage, the admission of drinking alcohol and slurred speech. If the officer administers police coordination exercises at the scene, the results of those flawed and unfair tests will also be considered.

In Texas it is not against the law to have an alcoholic beverage and then drive. It is only against the law if the driver has lost the normal use of his or her mental and/or physical faculties at the time of driving.

MADD is touting the national crackdown on drunk driving that will be hitting the nation's roadways this week and next. This crackdown represents yet another assault on our constitutional rights as local police, prosecutors and courts will be teaming up to make it easier to turn ordinary citizens into criminals by forcing those accused of drunk driving to give up evidence that can be used against them.

Remember that you have the right to refuse to perform any roadside or station-house coordination exercises a police officer asks you to do. You also have the right not to answer any questions aside from identification questions. You have the right to refuse to blow into the state's breath test machine. In short, you have the constitutional right not to incriminate yourself.

If you feel your rights were violated or that you were wrongly arrested for DWI, contact my office immediately.

Criminalizing childhood

In this morning's Houston Chronicle, state and metro columnist Rick Casey questioned our lawmakers' priorities in defining crimes. Four middle-school students at a suburban Houston school who wrote on the wall of the girls' restroom have been charged with felonies.

Per our sage lawmakers in Austin, taking a pen and writing on a bathroom wall is a worse offense than hazing, possessing two ounces of marijuana, stealing $1499, engaging in prostitution, carrying a prohibited weapon, making a terroristic threat, assaulting a family member, or a second drunk driving offense.

Teenagers do stupid things. I did some things during my teenage years that were incredibly stupid and I'm sure y'all did, too. But just because something is stupid doesn't mean it should be a crime -- and it certainly doesn't mean that a teenager should have to carry the stigma of a conviction for the rest of his or her life.

Somewhere along the way we, as a society, have lost our common sense. In days past if you got into a fight at school, got into an argument with a teacher or administrator or wrote on a wall or door you were punished by the school (and then by your parents). Nowadays you're likely to find yourself in court facing a criminal charge - with your parents footing the bill for hiring an attorney.

Are we, as Mr. Casey ruminated, criminalizing childhood?

Last minute gift ideas

Here are two items you might consider for that person that's really hard to shop for:

David Steele Enterprises, Inc. has created the iBreath accessory for the iPod and iPhone.  The device connects to the bottom of your iPod or iPhone and contains a breath wand.  You blow into the wand and if the reading is .08 or higher, an alarm sounds.  No word yet on how accurate the devices are, how they are calibrated, what assumptions they make about partition ratios, whether the source code is available for inspection or how often the state's breath test expert supposedly performs maintenance on the device.

Earlier this year Taser released the Taser C2 that features an MP3 player capable of holding up to 1GB of music.  Nothing like rocking out while your would-be attacker writhes on the ground.  There's also a selection of stylish patterns to choose from. It certainly beats the basic black and yellow worn by the Harris County Sheriff's Department. 

Another bad idea

Here's word that the State of Georgia, upset because it didn't get the okay to kill a citizen convicted of murder, wants to mete out death by non-unanimous jury verdicts.  Nevermind that we're talking about a person's life.  Nevermind that you can't have proof beyond a reasonable doubt with a non-unanimous verdict.  Nevermind that Brian Nichols was sentenced to multiple life sentences without parole.

The prosecutor even wants los federales to pursue criminal charges and, in turn, the death penalty.

Look, for whatever reason, the jury did not agree that Mr. Nichols deserved the needle.  That shouldn't be blamed on a legal system that demands a unanimous verdict for death.  Blame it on the prosecutor for not doing his job during voir dire.  Blame it on the prosecutor for not bring enough evidence to support his case during trial.  Blame it on the one juror who refused to consider the death penalty.

But don't take potshots at the due process provisions of the 14th Amendment.  Don't sacrifice the 8th Amendment's proscriptions against cruel and unusual punishments.  Don't throw out our 5th Amendment protections against double jeopardy.  Don't discard our notions of federalism.

Bad cases make (very) bad law.

Our justice system is not a blood sport.

Happy Birthday, Bill of Rights

Today is the 217th anniversary of the ratification of the Bill of Rights.  Celebrate by reading the document once again and revel in its simplicity.  Pay close attention to the 9th Amendment that reserves all remaining rights to the people.

I would also encourage you to read this post on freedom and safety by my colleague, Mark Bennett.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
 
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
 
Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
 
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
 
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
 
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
 
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
 
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
 
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Greed is good?

Bernie Madoff's alleged swindle of over $50 billion was made possible, in large part, by the greed and avarice of wealthy individuals who bought the premise that they could earn huge returns on their investments without any risk.

This was not a man trying to swindle poor old widows out of their monthly social security checks. He wasn't trying to scam someone into believing they could make millions off the internet doing nothing. His victims weren't those so gullible as to believe that a bank in Nigeria would be depositing millions into their bank accounts.

The point is, ladies and gentleman, that greed -- for lack of a better word -- is good. Greed is right. Greed works.

Mr. Madoff scammed the sophisticated and the wealthy.  He scammed them because they were blinded by the dollar signs he dangled in front of them.  He scammed them because the Securities and Exchange Commission was (once again) asleep at the wheel.  He scammed them because during the Bush years no one wanted to rock the boat and actually regulate the financial markets.

Certainly there are some very wealthy people who lost a lot of money, but losing money is a kinder fate than that which awaits the avarice in Hell -- sitting in a cauldron of boiling oil.

Here's more on the Madoff saga:

• Yahoo! News' coverage of Madoff's arrest.
  
• Loren Steffy's (Houston Chronicle) column on the complicity of the SEC.
  
• New York Post's report on Madoff's bond conditions.
  
• Mark J. Astarita's blog coverage.
  

Forced blood draws in Texas

If you are arrested on suspicion of driving while intoxicated in Texas, Chapter 724 of the Texas Transportation Code authorizes a peace officer to request a sample of your breath or your blood for testing.  In fact, Section 724.012(b) requires an officer to request a sample of your breath or blood if you're arrested on suspicion of violating the state's DWI statute.  Per Section 724.012(c), the officer gets to decide whether to request breath or blood.

Section 724.019 allows a citizen accused to request an independent blood test within two hours of providing a sample pursuant to a request from a peace officer.  I have yet to speak to a client who was informed of this right after blowing into the state's breath test machine.

Section 724.017(a) only authorizes a physician, qualified technician, chemist, registered professional nurse or license vocational nurse to take an evidential blood specimen from a citizen accused of DWI.  Interestingly enough, per Section 724.017(c), the term "qualified technician" does NOT include emergency medical technicians or service workers. The blood must be drawn in a sanitary place. Neither the back of an ambulance, the police station nor the county jail are considered to be sanitary places.

While the results of blood tests are looked upon as more accurate that breath test results, there are several avenues available to attack the results.  The state, for instance, must prove up the chain of custody for the blood sample and, based on Crawford, affidavits will not suffice.  The prosecutor will have to bring in every person who handled the blood specimen.  The state will also have to prove that the sample was collected, stored and tested in accordance with the procedures for the particular sample kit used to collect the specimen.  Expiration dates, tube caps and placement of labels become important issues in attacking the validity of a blood test result.  

The warrant authorizing a forced blood draw must be signed by an impartial magistrate and must contain the allegations within the four corners of the document.  On many "No Refusal" weekends, either MADD or a victims' rights group will donate the funds to supply a judge and registered nurse in case a citizen accused declines a breath test.  How neutral and impartial is a judge who's being paid by MADD going to be?

As I have said many times before, and will continue to say, the best way to avoid being arrested for driving while intoxicated is NOT to drink and drive.  But, if you do, and if you're falsely accused of DWI, contact my office.

Bad choices

The other day I was down at the Galveston County Courthouse for docket call in one of the misdemeanor courts.  The judge called a name and a young lady answered and then asked "Do I need a lawyer?"

Nothing good comes after that question by a citizen accused of a criminal act.  And, sure enough, after the judge read her her options (talk to the prosecutor, ask for time to hire an attorney or ask for a court-appointed attorney), she chose to talk to the prosecutor.

I could only shake my head.

Personal responsibility in the Bush era

For the last eight years the buzzword from President Bush has been personal responsibility. Prosecutors tell me continually that my client needs to accept responsibility for his actions.

But, when it comes to the executives running the major banks and brokerage houses in this country, personal responsibility means going to Washington with your hand out and asking for the taxpayers' (it's our money, after all) money so they can continue to pay themselves obscene salaries, perks and bonuses. These so-called financial experts gobbled up risky investments without taking the trouble to hedge their bets. The partners and shareholders ate it up. No one stood up and questioned the strategy. And then, when it all came crumbling down, no one wanted to take responsibility for it.

And what do our elected officials do in response? They open up our checkbook, hand it to the bankers who lost the money in the first place and don't ask for any accounting of where the money's going.

It's all part of the privatization of gain and the socialization of loss in our society. The profits from these schemes find their way into fewer and fewer hands while the costs of bailing out the banks is spread among everyone.

There's not enough money to provide health insurance for the nation's uninsured children. There's not enough money to expand social services in our inner cities. There's not enough money to make college affordable for everyone. But there's enough money to hand the banks and brokerages a blank check for $700 billion.

There's no sympathy in the DA's office for the kid who makes a very bad choice. There's no sympathy for a young adult looking at a charge that could make him virtually unemployable. There's no sympathy for a citizen accused with a family facing the prospect of years in prison. There's no sympathy for the ever-growing numbers of young African-Americans and Latinos being institutionalized in our jails and prisons. There's no sympathy for the working poor who can't afford legal representation.

No one on Franklin Street, or in Austin or in Washington wants to accept any responsibility for the situation. But everyone will continue to chant the mantra personal responsibilty as the assault on the working poor and minority citizens continues.

P.S. I'm certain that some of y'all have posted articles dealing with this subject. Feel free to notify me on Twitter, e-mail me or leave a comment with a link and I'll be more than happy to include it.

Celebrating Human Rights Day

On December 10, 2008, a display of documents including the Declaration of Independence, the Constitution and the Bill of Rights were dedicated in the foyer of the Harris County Juvenile Justice Center.

My colleagues Mark Bennett, president of the Harris County Criminal Lawyer's Association (HCCLA); JoAnne Musick, president-elect of HCCLA; and Robb Fickman, former president of HCCLA spoke at the dedication.

Mark, whose comments can be read here, reminded us that there is nothing in any of these documents about docket control or judicial efficiency.  He also pointed out that these documents were concerned with freedom and liberty, not safety and security.

Ms. Musick and Mr. Fickman spearheaded a two-year-long effort to have these documents hung in the courthouse.  What an absurdity it is that we have to fight to put the Declaration of Independence, the Constitution and the Bill of Rights in a courthouse.

I am hardpressed to think of a better way to celebrate Human Rights Day.

Human Rights Day

Today is the 60th anniversary of the signing of the Universal Declaration of Human Rights and is designated Human Rights Day.  I believe, however, that we should declare every day to be Human Rights Day.

Everyday in courtrooms around the world, dedicated members of the criminal defense bar fight to protect our rights.  It doesn't matter if the lawyer is in Europe, Asia, Mexico or Houston; it doesn't matter if you've never committed or been charged with a crime - our rights are on the line everyday.

When an attorney asks that the confession of an alleged murderer be suppressed because of police interrogation tactics, when an attorney seeks to have evidence in a dope case suppressed because of a 4th amendent violation, when an attorney seeks to reduce the bail asked of his client accused of peddling kiddie porn - our rights are being defended.

I'm asked often how I can defend people accused of serious crimes and I answer that I'm not defending a crime, I'm defending the Constitution.

Whether it's the attorney arguing a case before the Supreme Court, the attorney arguing before a state court of appeals, the attorney writing the appellate brief or the attorney who stood up and preserved error at trial, they are fighting for our rights everyday.

Brace yourself for another "No Refusal" weekend

Here's a preview of NHTSA's anti-drunk driving campaign for the holiday season.  I don't have any specific dates for when the enforcement campaign will be put in place in Texas, but rest assured there will be another "No Refusal" weekend over New Year's.

If you are stopped on suspicion of driving while intoxicated on New Year's Eve, you will be asked to submit a breath sample on the state's breath test machine.  Should you refuse, a judge will sign a warrant for a forced blood draw.  While the results of these tests can be challenged on both scientific and legal grounds, the process can be both humiliating and painful.

Warren Diepraam, the head of Harris County's Vehicular Crimes section, described the genesis of the "No Refusal" Weekend in this article published on the Texas District and County Attorney's Association website.

The question is, should you refuse the breath test if asked on a "No Refusal" Weekend?  My colleague Mark Bennett provided this advice and I can't say that I disagree with him.

My advice, as always, is the best way to avoid being arrested for driving while intoxicated is not to drive if you've been drinking.  But, if you are arrested for DWI, contact my office immediately.

Perspective

Lake Raven, Huntsville State Park, December 5, 2008 

Work to live, don't live to work.

Zen and the art of trail running

On Saturday I spent a wonderful day running along 31 miles of trails through Huntsville State Park. The weather was fantastic - sunny skies with temperatures in the 40's. I didn't run my fastest time, but I finished and that's what I had set out to do.

Few things are more relaxing than running through the forest listening to the caws of the ravens, seeing squirrels scurry about and smelling the scent of the piney woods. For a few hours on a late fall day you can lose yourself in the run and push all of the day-to-day stress away.

Trail running is very different than road running. On the trails your world consists of the 5-6 feet in front of you. You have to keep a constant watch for exposed roots, rocks, limbs and gullies. Lose that concentration for just an instant and you can end up eating a mouthful of dirt.

It's much the same in trial work. During trial you have to pay attention to the minutest detail. You have to listen to every question asked by the prosecutor and every answer given by the witness. At the same time you're listening for the narrative, you have to be ready to object at a moment's notice. As on the trails, lose the focus and you could cost your client his liberty.

But, at some point you learn how to focus on the details without losing sight of the bigger picture.

Kissing time

In engineering lingo, KISS means "keep it simple, stupid." It's a mantra that we as criminal defense attorneys need to keep in mind when preparing our cases for trial.

As I was watching a show on Discovery Channel about natural disasters, I saw an interview with an engineer from Iowa State University who had constructed a tornado simulator. The device, which can simulate tornados with winds in excess of 300 mph, only has four components.

A good story only needs a protagonist, an antagonist and an event. Too many characters, too many subplots and too many twists will weigh down a book or a movie - rendering it unreadable or unwatchable. The books and movies we remember are very simple stories.

Jurors don't have enough time or energy to absorb a complex story. They have a host of other things on their minds such as the inconvenience of serving on a jury, a project at work, problems at home, children and the like. Don't be guilty of confusing the jury, let the prosecutor spin a complex yarn and lose the panel.

Don't overthink your case. Boil it down to its essential elements and present it to the jury in a way in which they can follow the story. If you can describe your case within the construct of a story to a stranger, or a person with no knowledge of the case, then you're on the right track.

Doctor who treated Plaxico Burress suspended

Dr. Josyann Abisaab, the doctor who treated Plaxico Burress for his allegedly self-inflicted gunshot wound, failed to report the incident to the police and signed off on documents identifying Mr. Burress by a phony name, has had her privileges at New York-Cornell Hospital suspended.

Dr. Abisaab was summoned in the middle of the night by an as-of-yet unidentified person (who may have been the Giants VP of medical services, Ronnie Barnes.

Dr. Abisaab may face charges for her failure to report the incident.

Oh, what a tangled web we weave...

Protecting their own

Here's a shocker... acting Harris County District Attorney Ken Magidson today announced that his predecessor, Chuck Rosenthal, will not face criminal charges for his use of government property in personal campaigning.

Magidson said that, following an eight-month long investigation by the state Attorney General's Office, he does not believe that Rosenthal committed any criminal acts.  Maybe it's time to criminalize prosecuting while impaired.

HGN and hearsay

The Amarillo Court of Appeals has reversed a DWI conviction because the trial court allowed the prosecutor to introduce a letter from the American Optometric Association regarding the validity and reliability of the horizontal gaze nystagmus test. 

In Wells v. State, No. 07-07-0471-CR (Tex.App.--Amarillo, 2008), the Court held that it was reversible error for the trial court to have allowed the arresting officer to identify the letter and then to allow the prosecutor to read it into evidence.  The Court pointed out that there was nothing in the record to indicate the officer was an optometrist, a member of the AOA or had any knowledge of any test or studies that backed up the AOA's position.

Interestingly enough, the prosecutor introduced the exhibit at the end of the state's case in chief (at the end of the first day of trial) and reintroduced it during closing argument.  Defense counsel (correctly) objected on the grounds that the document was hearsay and that the defendant was being denied his right to confrontation under Crawford.

Now when the prosecutor asks the arresting officer about the so-called validation studies and the supposed accuracy of the NHTSA battery of police coordination exercises, stand up and object with the Wells opinion in your hand.

Dumb and dumber

At the Latin Quarter nightclub in Manhattan, in the early morning hours Saturday, New York Giants wide receiver Plaxico Burress accidentally shot himself in the leg. At least that's what we're supposed to believe.

Mr. Burress had a Florida-issued concealed weapons permit (that expired last May). New York does not recognize any other state's concealed weapons permits.

For some reason Mr. Burress felt he needed to carry a loaded handgun in his waistband when he went out that evening - to a posh Manhattan nightclub. It doesn't take a brain surgeon to realize that alcohol and loaded handguns are a bad idea.

At some point the gun (allegedly) slipped from Mr. Burress' waistband and he claims that when he tried to grab it through his pants the gun fired and the bullet passed through his right leg. Apparently no one heard the gun go off because no one came to his aid.

Mr. Burress' teammate, linebacker Antonio Pierce, decided to take the gun and hide it in New Jersey. Mr. Burress declined an ambulance ride to the hospital and relied, instead, on private transportation.

Ironically enough, Plaxico Burress was not scheduled to play for the Giants this past weekend due to a leg injury.

It will be interesting to find out what really happened that evening. Why was Mr. Burress carrying a loaded handgun to a nightclub? If it was for protection, maybe he should think twice about where he goes or with whom he goes. Why would his teammate take the handgun and hide it? If Mr. Burress was shot accidentally there would no reason to hide the weapon. How did Mr. Burress get the handgun past the metal detector?

Mr. Burress is now facing a weapon possession charge and has turned himself in to police.

The hidden danger of a domestic assault charge

You and your wife go out to a party one night and you both a little bit too much too drink.  On the way home you get into an argument over something petty.  However, by the time you get to the house, it's no longer a petty argument.  Voices raise and tempers flare.  Before you know it, you raise your hand and hit your wife.  She calls the police who come to the house, place you in handcuffs and take you downtown.

You're now charged with domestic assault, a Class A misdemeanor in Texas.  At your first court appearance the prosecutor offers you 12 months of deferred adjudication probation with the promise that the charge will be dismissed upon completion.  Do you take it?

Here's what the prosecutor didn't tell you and what an attorney not schooled in domestic assault cases might now know -- per Section 22.01(f)(1) of the Texas Penal Code, a plea of guilty or no contest to a domestic assault charge, in exchange for a grant of deferred adjudication, still counts as a conviction for enhancement purposes.  Should you be charged with a second domestic assault, you will be looking at a third degree felony.

If you've been charged with domestic assault, ask any prospective attorney what kind of experience they have dealing with domestic assault cases.  The failure to do so could be very costly.

What I'm thankful for

Although I frequently rant about miscarriages of justice and the wrongs I see in our criminal justice system, I am thankful to live in a country in which the rights of criminal defendants are spelled out in our constitution. Our system may not be perfect, but it does allow us the opportunity to effect change through vigorous trial and appellate work.

I am thankful to live in a country where I have the freedom to succeed, or fail, on my own.

I am thankful to live in a country where I have access to forums such as this to disseminate information and opinions.

I am thankful for a system that does allow for second chances.

But mostly I'm thankful for my beautiful wife and daughters whom I get to go home and see every night.

Take a moment or two everyday to be thankful for what you have. Happy Thanksgiving.

Significant decisions by the Courts of Appeal, October 2008

An officer need not observe a suspected intoxicated driver actually drive

In a pair of decisions, the First Court of Appeals in Houston and the Sixth Court of Appeals in Texarkana held that a police officer has reasonable suspicion to detain a driver without having seen that driver exhibit any signs of intoxication based solely on another citizen calling 911 to report an intoxicated driver.

In Villareal v. State, 2008 Tex.App.LEXIS 7230 (Tex.App.--Houston [1st] 2008), the Court held a citizen's tip bearing "sufficient indicia of reliability" is enough for an officer to make a stop according to Terry v. Ohio, 392 US 1 (1968).  In Villareal, Officer Coppedge of the Pasadena Police Department relied upon a call from another driver who reported that Ms. Villareal was drifting and swerving.  The other driver identified himself and Ms. Villareal's car and even informed the police that Ms. Villareal had pulled into a parking lot.  Officer Coppedge detained Ms. Villareal in the parking lot and, based on his observations, placed her under arrest for driving while intoxicated.

In Pospisil v. State, 2008 Tex.App.LEXIS 7564 (Tex.App.--Texarkana, 2008), the Court held that a police officer may rely on information received from another citizen provided that information is can be corroborated by other facts within the officer's knowledge.  The Court further held that a citizen's tip holds greater weight when the reporting citizen description provides a detailed description of the act, is gathered from direct observation and when the citizen puts himself in a position to be held accountable (i.e. provides his name, occupation, address, etc.).  The Court went on further to state that because the citizen was a firefighter that his word was entitled to be trusted. 

Beware the statutory warning

In Bergner v. State, 2008 Tex.App.LEXIS 8268 (Tex.App.--Fort Worth, 2008), the Court held that in order to show that one was coerced into providing a breath specimen, the accused must show that his consent was the result of physical or psychological pressure from the police.  Ms. Bergner was arrested for driving while intoxicated and transported to the station to provide a breath specimen.  After the officer read the statutory warning form (DIC-24), Ms. Bergner decided to blow into the breath test machine.  After the officer left the room, Ms. Bergner used her cell phone to call a friend who advised her not to blow.  When the officer returned, Ms. Bergner asked him what would happen if she refused to blow.  The officer told her she would go to jail.

As a result of her testimony that she consented to the breath test before the officer added the threat of jail for refusing to blow, the Court held that the additional threat of jail was not coercive and upheld the conviction.  (Ms. Bergner blew 0.85 and 0.89.)

Interestingly enough, there was nothing in the Court's opinion regarding possible interference with the intoxilyzer caused by the cell phone and nothing about Ms. Bergner having a cell phone on her person while in custody.

A citizen's refusal to perform field sobriety exercises can be considered a sign of intoxication (So much for the 5th Amendment)

In Sanchez v. State, 2008 Tex.App.LEXIS 7976 (Tex.App.--Houston [14th], 2008), the Court upheld a conviction for driving while intoxicated without any bad driving facts, field sobriety tests or breath test result.  Officer Felton, a five-year veteran, stopped Mr. Sanchez for speeding (22 miles over the speed limit).  After approaching Mr. Sanchez, Officer Felton noticed Mr. Sanchez had an odor of alcohol on his breath and had red, glossy eyes.  Mr. Sanchez also admitted to consuming a couple of beers that evening.  Mr. Sanchez refused to perform any field sobriety tests and also refused to blow into the state's breath test machine or sign the statutory warning form (DIC-24).  The officer testified that he believed Mr. Sanchez had lost the normal use of his mental and physical faculties and was driving in a unsafe manner.  He testified that, in his opinion, Mr. Sanchez was intoxicated.

So, despite the fact that Officer Felton did not observe any of the clues of impaired driving as described in the NHTSA training manual, and despite the fact that Officer Felton did not complete the pre-arrest screening as described in the NHTSA training manual, the Court upheld a conviction based solely upon Officer Felton's opinion that Mr. Sanchez was intoxicated.

No fishing expeditions

Although not a DWI case, Pierce v. State, 2008 Tex.App.LEXIS 6627 (Tex.App.--Dallas, 2008) lays out the proposition that a police officer may not prolong a traffic stop any longer than necessary given the reasonable suspicion for the stop.  Mr. Pierce was stopped by police for speeding.  After speaking with Mr. Pierce and his passenger, Officer Spano became convinced they were carrying contraband.  The officer went back to his patrol car and ran criminal checks on them and then asked Mr. Pierce for permission to search his vehicle.  Upon Mr. Pierce's refusal, Officer Spano called for a canine unit.  A search revealed 38 grams of methamphetamine in the car's console.  Pursuant to a plea agreement, Mr. Pierce appealed his conviction following the trial court's denial of his motion to suppress.

The Dallas Court of Appeals held that Officer Spano did not have reasonable suspicion to believe any crime other than a traffic violation had occurred and that the continued detention was a violation of the Fourth Amendment.

Jumping to conclusions, DWI-style

According to the NHTSA training manual used to teach police officers how to administer and interpret standardized field sobriety tests, the decision to arrest a citizen for driving while intoxicated should be based upon a totality of the circumstances.

The NHTSA manual breaks an encounter into three steps or phases.  Phase I is observing the vehicle in motion.  Officers are to look for traffic code violations, equipment violations or unsafe driving.  If he observes any of these then he has reasonable suspicion to stop the driver and moves to the next phase.

Phase II is the initial observation of the driver.  Officers are taught to rely on their senses to determine if there is probable cause to suspect the driver is intoxicated.  Officers look for signs of intoxication: bloodshot or glassy eyes, fumbling for paperwork and trouble maintaining balance. They use their sense of smell to detect the odor of an alcoholic beverage.  The officer listens for slurred or thick speech, for admissions of alcohol consumption or for drivers who have trouble answering questions.  If the officer detects any of these he moves to the final phase.

Phase III is pre-arrest screening.  In Phase III, the officer administers and interprets a series of field sobriety tests, what I prefer to call police coordination exercises.  The officer may also ask the driver to blow into a portable breath test machine.  

Only after all three phases have been completed has the officer gathered enough evidence to make an arrest decision.

But, as those of us who litigate these matters are well aware, the decision to arrest tends to be made upon the smell of an alcoholic beverage and a driver's admission that he has been drinking. How else to explain an arrest when the driver refuses to perform the coordination exercises -- or when the driver performs well on them?

An effective method of attacking a DWI arrest is to challenge the objectivity of the arresting officer -- in other words, to demonstrate that the arresting officer made up his mind to arrest the driver before he had a chance to observe all available clues and signs.

If you've been charged with driving while intoxicated, contact my office.

 

Improper voir dire

A very special thanks to Galveston County criminal defense attorney Gerald Burks and Houston criminal defense attorney Mark Bennett for their research into the so-called "One Witness Rule."

In every case I've taken to trial I've had to sit and listen to the prosecutor get up and recite the so-called "One Witness Rule" to the panel of prospective jurors.  The prosecutor asks the panel if they would require she bring more than one witness to testify at trial and then she tells the panel that if they believe her one witness, that's all she has to do to carry her burden at trial.

Everytime I sit and hear it I cringe because that is NOT the law.  The so-called "One Witness Rule" is a bastardization of Article 38.07 of the Texas Code of Criminal Procedure that deals with uncorroborated testimony of a victim of sexual abuse. That particular provision deals with the sufficiency of the evidence in a sexual assault case.  There is no mention in the code of any other type of case in which this so-called rule applies.  This is a procedural rule that allows the court to determine whether such uncorroborated testimony is sufficient to uphold a conviction.  Such an inquiry is made by the court, not the jury.

Furthermore, this so-called rule is an attempt by the prosecutor to shift the burden of proof in a criminal trial.  By telling the panelists that they must convict if they believe the word of the state's one witness, the prosecutor misstates her burden of proof.  In a criminal case it's not a question of whether the jury believes one witness or not, it's a question of whether or not the state has met its burden to prove its case beyond a reasonable doubt.  A jury may very well believe the testimony of one witness, but whether that testimony proves beyond a reasonable doubt that the citizen accused did the deed may another story altogether.

Questioning the panel about the state's so-called "One Witness Rule" is improper voir dire and should raise an immediate objection. (Better yet, address it in a motion in limine as well.) Should the court grant any challenge for cause by the state over a panelist's refusal to follow the so-called rule, make an immediate objection.  Should the court overrule the objection, object to the panel as seated.

• Read what Mark Bennett has to say about the so-called "One Witness Rule" in his blog Defending People.
  

The end of a season

While there's plenty in the criminal law atmosphere I could write about today, I'm writing about something that's more important to me.  Tomorrow at noon, my daughter's U6 soccer team plays their final game of the season.  And while I am so happy for the kids and the way they've played this year, I'm also sad.

I'm saddend because I will miss getting together with the kids for an hour every Tuesday working on their soccer and teamwork skills.  I will miss helping my daughter get her shinguards and shoes on every Saturday morning.  I will miss outlining practices and putting together lineups.  I will miss throwing my bag of coaching gear in the truck of my car and heading to the soccer field.  I will miss seeing the kids celebrate after a goal -- and after a game.  I will miss chatting with the parents before and after practices and games.

And then, before I know it, September will arrive and, once again, it will be soccer time!

Presidential pardon pool

Since election night I have joked with more than one colleague about starting up a pool on how many presidential pardons George W. Bush grants between now and January 20, 2009.  Here's a story from the Houston Chronicle that could lead to the first two.  A Willacy County (Texas) grand jury has indicted Vice President Dick Cheney and former Attorney General Alberto Gonzales on state charges related to the alleged abuse of prisoners in the Federal Detention Center in Willacy County.

See these additional accounts:

• Reuters
  
• Huffington Post
  
• Dallas Business Journal
  
• KRGV - Channel 5 (Weslaco, Texas)
  

A further update on the intoxilyzer scandal

I have an 80-something year-old client down in Galveston County who rear-ended another driver in the middle of the day and was arrested for suspicion of DWI.  Due to his age (and condition) he was unable to perform field sobriety tests at the scene.  He did, however, blow into the officer's portable breath test machine - his BAC was .18!

At the station my client blew a .13 into the state's breath test machine.  A breath test machine maintained by none other than Dee Wallace.  As a result of Ms. Wallace's filing false maintenance records on the machines under her control, the Galveston County DA offered to reduce the charge to reckless driving.

This was a result we achieved because we weren't afraid to fight the case.  There are plenty of attorneys out there who would've looked at the facts and advised their client to enter a plea.

I have spoken to a source who taught with Ms. Wallace back in the 1990's and was told that Ms. Wallace bragged ten years ago that she had an easy job with the state and that she never performed actual maintenance on the machines because of the time and expense of driving to each of the police stations.

If you've been charged with driving while intoxicated and provided a breath specimen in Galveston County, contact Houston DWI attorney Paul B. Kennedy to find out if the machine used to test your breath sample was one of the machines maintained by Dee Wallace. 

Update on DPS' call for driver's license checkpoints

On Friday, under pressure from state legislators, the DPS withdrew its request for an Attorney General's opinion on the legality of setting up checkpoints to check for valid driver's licenses, registration and insurance. According to the DPS, the checkpoints were never intended to serve as a check for illegal immigrants.

Here's something to chew on

Had a very interesting lunchtime talk (over barbecue) with fellow Houston criminal defense attorney Mark Bennett and South Carolina defense attorney Bobby G. Frederick about differences in the practice of criminal law here and in South Carolina.

The first difference is there is no attorney-led voir dire in South Carolina.  The judge asks the questions and the attorneys are allowed to submit questions but selection is made largely in the dark due to the lack of information.  Bobby posted this article on his blog about jury selection in South Carolina.

The State of South Carolina has a public defender system the provides counsel for indigent citizens accused of felony offenses.  However, if you've been charged with a misdemeanor offense with a maximum sentence of 30 days or less, you're SOL.  The system is funded by the state and the local chief public defender is selected by vote of the county bar.

Judges in South Carolina are selected by the Legislature after a vetting process.  There is no popular election of state judges.

All in all it was a very fascinating look at how another jurisdiction handles matters.  Thanks for the lunch and thanks for the conversation.

What about aggravated perjury?

According to the Texas Penal Code, a person commits perjury if, with the intent to deceive and with knowledge of the statement's meaning, he makes a false statement under oath.  Perjury is a Class A misdemeanor punishable by up to 6 months in the county jail.

A person commits aggravated perjury, however, if the false statement is made during or in connection with an official proceeding and if the false statement is material.  A statement is material if it "could have affected the course or outcome of the official proceeding." Aggravated perjury is a third degree felony punishable by from 2 - 10 years in the state penitentiary.

Per the Texas Breath Alcohol Testing Regulations, the technical supervisor shall provide "expert testimony...concerning all aspects of breath alcohol testing within an assigned area."

In a DWI trial with a breath test, the technical supervisor must take the stand and testify that the machine was working properly on the day the test in question was given.  The technical supervisor must also testify that the machine was maintained properly. This testimony is required to admit a breath test result.  A technical supervisor must also testify as such during a license suspension hearing, but that testimony may be made by affidavit.

As Dee Wallace's testimony was necessary in order to secure convictions based on breath tests, her testimony at those trials was material.  Therefore, not only did Ms. Wallace tamper with government documents, she committed the offense of aggravated perjury, too.

Ms. Wallace's next court appearance is set for December 10, 2008 in the 182nd Judicial District Court.

DPS calls for driver's license checkpoints

Last month I wrote about the DPS' new policy of not renewing or issuing new Texas drivers' licenses to anyone who can't prove they are in the United States legally.

Now, according to the Houston Chronicle, comes word that the DPS has asked Greg Abbott, the Texas Attorney General, for permission to set up drivers' license checkpoints across the state. According to the request, the checkpoints would be set up to check for valid drivers' licenses, registration and insurance.

State Sen. Leticia Van de Putte of San Antonio and 14 other legislators have sent Mr. Abbott a letter asking him to ignore the DPS' request for a legal opinion.

The last time I checked, being in the United States without permission was a federal issue, not a state issue.  There is no provision in the Texas penal code making it a crime to be in this county illegally.  There is also no need for state or local police agencies to enforce federal law.

The DPS has enough to worry about with rogue technical supervisors faking maintenance records on the intoxilyzers used to carry out the state's breath alcohol testing program without worrying about whether a driver is here legally or not not.

Playing with people's lives

It's bad enough that the misdemeanor courts in Harris County hail citizens before them every two-to-three weeks while their cases are pending -- meaning lost time from work and extra money for baby-sitters and parking; due to last week's election, I had a client who had to appear in felony court three times last week for the privilege of resetting a trial to February (after the new judge takes over).

Jury selection was set, originally, the day before the election.  The prosecutor and I spoke and I was informed that all of Monday's trial cases were being rolled to Wednesday -- but that my client still needed to be present.  So we come back to court the day after the election and one floor in particular had more the mood of a funeral home.  My client and I sit and wait.  No one wants to approach the judge...no one knew what he might do.  After an hour he asks the status and we announce that we're trying to work things out but we didn't think they would.  The judge then said he didn't feel like picking a jury that day and told us to come back the next day.

So we make our third appearance of the week on Thursday and are told that something came up and we weren't going to try the case.  The case was then reset to fall on the new judge's docket.

Now I'm paid to be down at the courthouse and even though it meant I had to bring my boxes and display boards and pay extra for parking, it wasn't that big of a deal -- for me.  But for my client, a budding entrepreneur who runs his own chimney sweep company, it was a hassle.  Three days at the courthouse meant three mornings with no paying clients.  It meant keeping potential witnesses in a position where they could come to the courthouse if needed.  It meant the added anxiety of not knowing if "this was the day."

My client may have been charged with a crime, but he hasn't been convicted and for the courts to treat him otherwise is nothing short of wrong.

What is obstruction of a highway?

Recently my colleague, Robert Guest of the Dallas area, posted an article on his Dallas Criminal Defense Lawyer Blog about the mysterious offense of obstructing a highway (OAH).  I've had my own experience with OAH in Galveston County.

Twice in the past year I have represented a client who was stopped for a traffic violation, allegedly performed poorly on field sobriety tests administered at the scene (but not videotaped) and then proceeded to blow sky-high numbers on the Intoxi-liar.

In both instances my clients were young and had never been in trouble with the law before.  In both instances, the only video available was from the station immediately prior to the breath test --- and in neither video did my clients appear two- or three-times the legal limit.

As I worked up both cases I lobbied with the prosecutor to reduce the charge to a lesser offense -- and in both cases I was told it was impossible with such a high test score.  Both prosecutors changed their minds, however, on the eve of trial and offered a reduction to OAH (in one instance my client benefitted from the breath test scandal and the DA actually dismissed the case).

In both cases my clients were all to happy to accept the offer and avoid the stigma of having a DWI conviction on their records.  The lesson to be learned?  In both cases we were prepared to go to trial and show the disconnect between the breath test and the observed behavior on the video.  And in both cases the prosecutor backed down at the pretrial conference.

If you plead to a DWI charge you are guaranteed a conviction; however, should you prepare your case and test the resolve of the prosecutor, good things can happen.  Never be afraid to utter the words "The Defense is ready."  

If you've been charged with DWI, contact my office for an appointment.  I will fight to clear your name and your reputation.

Your state board of education

The most disturbing aspect of this is not that Cynthia Dunbar believed that Barack Obama was a terrorist and would institute martial law, but that she is an elected member of the State Board of Education. I have no joke or pithy comment...I will let it speak for itself.

The case for specific verdicts in DWI cases

In light of the breath test machine scandal involving disgraced former technical supervisor Dee Wallace, the time has come to request specific verdicts on any per se (breath test result of .08 or higher) DWI case.

The general verdict form asks the jury to decide whether or not the citizen accused is guilty of driving while intoxicated.  Although the DWI statute defines intoxication three ways: loss of normal use of mental faculties, loss of normal use of physical faculties and alcohol concentration of .08 or higher - a citizen may be convicted by a non-unanimous decision.  In simpler terms, the jury does not have to be unanimous as to how the citizen was intoxicated, they only have to be unanimous as to whether the citizen was intoxicated.

And this brings us to our problem.  The Texas DPS announced that all breath tests conducted on the machines under Ms. Wallace's watch are now invalid.  Unfortunately, because Texas does not require a specific verdict on a DWI case, it is impossible to know how many guilty verdicts were rendered on the basis of one of those (now invalid) breath tests.  Now it's up to the Court of Affirms to decide that although the tests were invalid, it amounted to harmless error.

With a specific verdict form, however, we could go back and see on what definition the juries relied upon in reaching their decisions.  A specific verdict form would require a jury to reach a unanimous decision as to the method of intoxication, not just the result. This scandal could provide the fuel to make the change.

If you've been arrested for DWI, contact my office today.

Imperfect information

A couple of weeks ago my colleague, Mark Bennett, posted an article on his blog, Defending People, about David Sklansky's theory of poker.  The theory is, boiled down to its essence, that, in poker, you win anytime you make an opponent play a hand differently than they would have played it if they knew what you were holding.  And, on the other hand, you lose anytime you play a hand differently than you would have played it had you known what your opponent was holding.

This same concept in an economic context is known as the problem of imperfect information.  In a market analysis, information is a commodity and is available for exchange.  However, as the guiding principle of market economics is scarcity, the acquisition of information is subject to competition.  And, as a result of this competition for information, no one has perfect information.

The lack of perfect information is why some investors can "beat" the market while others lose -- if we all had perfect information our return would be the same as that of the market.  The random walk theory holds that our collective imperfect information guides the market and that, in the long run, we are better off spreading our risk across the entire market rather than trying to beat it here and there.

And this brings us back to the courtroom.  None of us has perfect information.  We weren't witnesses to whatever happened.  Police officers have to decide whom to believe when putting together an offense report. Clients lie to the police.  Clients lie to us.  Witnesses don't remember key facts.  Jury selection is limited to 20-30 minutes.  Judges won't allow questionnaires.

And so, in the courtroom, just as at the poker table, you must make decisions based upon what you think the other side is holding based on your reads and the prosecutor's actions.  And, just as in poker, the object is to make correct decisions -- you can't always control the outcome.

More fallout from the intoxilyzer mess

Last Thursday the Galveston County ADA handling my client's DWI case called me and proposed reducing the charge from DWI to obstruction of a highway.  There was no video of my client performing field sobriety tests but there was a .18 breath test.  My client was happy with the offer.

Our case was set for a pretrial conference the following day but my client was unable to appear as she had evacuated from the island prior to Hurricane Ike and had stayed in seven different places in the six weeks that followed.  The case was reset for trial in January with the understanding that we would make arrangements to enter a plea before then.

But then came the startling revelations that Dee Wallace had faked intoxilyzer maintenance records for the machines at eight area police stations for at least the past year.  Due to Ms. Wallace's criminal malfeasance, questions have now arisen on more than 2600 DWI cases.

Once Ms. Wallace was identified publicly as the technical supervisor in question, I placed a call to the Galveston County DA's office.  That call was returned this morning and, after a brief discussion, my client's case was dismissed.

This outcome was achieved because we challenged the state's proof and the reliability of their breath test machine.  It was achieved because we weren't afraid of a .18 breath test score.  It was achieved because we were willing to fight and to do whatever it took to obtain a positive outcome.

If you've been arrested for DWI (particularly in Galveston County), contact my office today.

Update on faked intoxilyzer records

Deetrice (Dee) Henderson Wallace, a contracted technical supervisor for the Texas Department of Public Safety (and the subject of this posting) has been formally charged with tampering with a government record, a state jail felony punishable by 6 to 24 months in state jail as a result of her faking intoxilyzer maintenance records.

Ms. Wallace was arrested on Sunday, October 27 and released upon posting a bond.  She is scheduled to appear in the 182nd Judicial District Court at the Harris County (In)justice Center on Wednesday, October 29, 2008.

Court grants stay of execution in Davis case

On Friday, the 11th U.S. Circuit Court of Appeals granted Troy Anthony Davis a stay of execution and set the stage for another appeal to be filed in a lower federal court. Interestingly enough, former FBI Director, William Sessions blogged that Mr. Davis should receive a new trial based on ineffective assistance of counsel. In his piece, Mr. Sessions lays out a very clear argument that Mr. Davis may not have been the gunman.

Mark Bennett, a criminal defense lawyer in Houston, and author of the blog Defending People issued this challenge to the government:

I look forward to the government’s explanation of why it should be allowed to execute someone who is clearly innocent because his lawyers should have found the evidence of his innocence in the first place.

Mark, I, too, await that answer.