Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

John Tierney’s New York Times opinion column today (available, unfortunately, only to Times-Select subscribers) addresses some of the political problems that the Drug War crusaders have had with libertarian voters and others. 

Basically there’s a fundamental problem with being both anti-Big Government, and supporting our current drug policy. Also, it’s hard to shout “leave it up to local control”, when local support is overwhelmingly in favor of issues like medical marijuana, but Washington pols want to override state laws.

Focusing on marijuana prohibition (“the chief priority of the current drug czar”), Tierney also addresses some of the fear mongering that Drug War supporters continually engage in, by providing us with some basic facts:

When Californians approved one of the first medical marijuana laws, in 1996, drug warriors were so convinced it would lead to a catastrophic spike in illegal use by teenagers that they sponsored a study to document the damage. But there was no catastrophe: after the law, marijuana use by teenagers actually declined in California.

In the decade since, as the Marijuana Policy Project documented in a recent study, popular support for legalized medical marijuana has increased in California and in virtually every other state with a similar law. Last year it was favored by 78 percent of respondents in a Gallup poll.

There’s no need for those of us who are ashamed of, embarrassed by, and angry with our current moronic policy of wasting tax dollars imprisoning marijuana users to remain quiet. We are in the majority. Shout it from the rooftops if you have to: Decriminalize Marijuana!

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The general rule on the admissibility of evidence regarding how a defendant acts after an alleged crime was committed is usually that the prosecutor can introduce testimony that tends to show that the defendants actions prove he knew he was guilty (at least of something). This is labeled, at least by prosecutors, as “consciousness of guilt”.

The theory is that since in most criminal trials the prosecutor has the burden of proving the “mens rea” or intent of the defendant, actions he took to “cover up” his alleged crime are relevant. (I say “most trials”, because the state is not required to prove intent in strict liability offenses.)

The New York Times has an article today about legal arguments in former New Jersey Nets star Jayson Williams retrial on reckless manslaughter in the accidental shooting that happened at his house. He was convicted on four charges relating to tampering with the evidence after the shooting in the first trial and acquitted of aggravated manslaughter, but a mistrial was declared on the reckless manslaughter charge he once again faces.

His lawyers argued that evidence of his actions after the shooting should no longer be presented to the jury in his second trial, because it will be more prejudicial than probative. My prediction is that the evidence will be allowed. From the article:

Justice Barry T. Albin questioned how the actions of Mr. Williams, 38, differed from those of someone accused of manslaughter in the case of a hit-and-run accident or any case in which someone flees. “The prosecution always says he fled because he was guilty,” Justice Albin said. “The defense says he was scared. Why shouldn’t that evidence go to the jury?”

This probably would have been a more difficult legal question for the appeals court, if Williams had been acquitted of these charges in the first trial.

(Hat Tip: How Appealing)

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If someone admits to committing a murder last year, or even 30 years ago, we don’t just get them “treatment”…the government indicts them and tries to imprison them. That makes complete sense, of course, because not only is there no statute of limitations for murder, there’s no excuse for it either. (My hypothetical here assumes murder, not a lesser included like manslaughter, and assumes the absence of self defense, etc.)

I’ve always found it odd then, that we have a dual system of imprisoning some drug users, while seeking treatment for others. Doesn’t the government frequently argue (in court) that the behavior of using the illegal drugs is worth punishing?

Which brings me to today’s quote from the Drug Czar’s blog. It comes from ONDCP’s Deputy Director for Demand Reduction, Dr. Bertha Madras, who was asked:

Why can't drug addicts just go straight to a local treatment center for help?

Dr. Madras: Only a small minority of addicts willingly seek treatment on their own.  The vast majority do not seek treatment because they don't think they have a problem.  They are unaware, in denial or ambivalent about seeking help. 

She’s talking about this in the context of the procedures by which doctors can now bill Medicaid for drug and alcohol screening and intervention, even if that was not why the patient came to see them. But isn’t her statement at least implicitly a rejection of the notion that drug users should be jailed in the first place?

I guess it’s OK to use marijuana, cocaine or what have you, as long as you run into a doctor before you run into a cop…

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Miami criminal defense lawyer Brian Tannebaum writes here that Rush Limbaugh called District Attorney Mike Nifong “a hack” for saying that he had not yet interviewed the complainant in the alleged rape case at Duke University.

I’ll admit to not listening to Limbaugh, so I’m not an expert on his views, but, one has to wonder whether his concern for the criminal defendants in this case springs at least in part from his own recent experience with our criminal justice system.

As you may remember, his defense was predicated on procedural rather than substantive grounds…which is a fancy way of saying he asserted his constitutional rights rather than professed “actual innocence”.

As to the old saw “A conservative is a liberal who has been mugged; a conservative is a liberal who has been indicted”…I think there’s some truth to the notion that people in general don’t care about other people’s constitutional rights not to be searched or indefinitely detained…until the other people turn out to be them. Human nature I suppose.

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Sanjay Gupta writes an article in Time this week entitled “Why I Would Vote No On Pot”. After stating his thesis that marijuana isn’t very good for you, he goes on:

True, there are health benefits for some patients. Several recent studies, including a new one from the Scripps Research Institute, show that THC, the chemical in marijuana responsible for the high, can help slow the progress of Alzheimer's disease. (In fact, it seems to block the formation of disease-causing plaques better than several mainstream drugs.)

Other studies have shown THC to be a very effective antinausea treatment for people--cancer patients undergoing chemotherapy, for example--for whom conventional medications aren't working. And medical cannabis has shown promise relieving pain in patients with multiple sclerosis and reducing intraocular pressure in glaucoma patients.

Wow. That’s actually quite a list of accomplishments from the medical perspective. Alzeheimer’s, cancer, glaucoma and MS patients could benefit from it, but the good doctor still wants to vote “no” because the Colorado and Nevada initiatives “would legalize marijuana irrespective of any medical condition”.

Drug Policy Reformers, please note: we need to always use the word “decriminalize” instead of “legalize” when talking about the subject. Dr. Gupta has caught a classic case of “missing the point”.

Voting “No on Pot”, as Dr. Gupta calls it, means more tax dollars spent incarcerating casual marijuana users. That’s it, end of story. Neither initiative will force Dr. Gupta or anyone else to use marijuana.

And as far as ignoring the reality of imprisoning doctors and their patients for choosing to prescribe and use marijuana for legitimate medical reasons, perhaps Dr. Gupta needs to read this post about the AMA’s position on medical marijuana. Jailing and imprisoning those truly in medical need goes beyond deliberately ignoring what the decriminalization movement is about: it is simply cruel and capricious.  

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Ben Franklin supposedly said that the definition of insanity is doing the same thing over and over and expecting different results.

Read this sad story in the Austin American Statesman and then answer this question: if we pour billions and billions more of our tax dollars into the same policy we have had for thirty years, can we expect any real progress in the next three decades?

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Following up on my last post regarding Steven Erickson’s critique of Drug Courts, let’s look at another part of his paper “The Drug Court Fraud” and his objections:

By their very design, drug courts diminish the zealous advocacy role of defense counsel by encouraging a “treatment team” approach to drug offenders. Thus, rather than defending clients, defense attorneys are supposed to assist the court into coercing defendants into participation and reporting to the “team” whether the client has made progress on their sobriety. Besides the obvious dismissal of the attorney-client privilege, such approaches effectively eliminate the role of defense counsel as traditionally understood for centuries in American jurisprudence.

Wow. I know this is harsh, but I’ve rarely seen such hogwash from a self proclaimed expert.

First, participation in Drug Courts is 100% voluntary. Folks arrested for controlled substance violations are always free to defend themselves in criminal court. That the government threatens addicts with incarceration if they don’t enter treatment might properly be labeled coercive, but then again, that comes from the prosecutor not the defense lawyer.

Second, there is no abrogation of the attorney client privilege that I have ever seen involved in Drug Court programs. My experience is limited to the Travis County SHORT program, but I’d like to know exactly what Erickson thinks he is talking about here.

While there’s no Doctor-Patient privilege in criminal cases in Texas, the rule reads (in part):

RULE 509. PHYSICIAN-PATIENT PRIVILEGE

(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

Anything my client says in Drug Court regarding prior drug use is specifically made inadmissible by statute under Texas law, and I’d bet there is a similar rule in most other states. Public policy demands that users be allowed to seek treatment, without worrying that what they say will be used against them. Perhaps Erickson is unaware of this rule, despite the J.D. after his name.

Finally, yes, my role as counselor-at-law sometimes becomes just counselor when I am helping those accused of possessing various illegal substances. But I can assure you, almost all of my Austin clients are thrilled to know that there is at least the potential there to keep them out of felony court all together. After all, we can always do it the old fashioned way: go fight the case in district court.

(Also read Kim Hunt's post at Corrections Sentencing for more analysis of Erickson's paper.)

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Crime and Consequences has a guest post written by Steven K. Erickson entitled “The Drug Court Fraud”. Erickson correctly criticizes the methodology used to boost statistics about the efficacy of drug courts. Some of the valid points he makes in his paper are that studies often leave out the initial drop out rate when publishing success statistics, that entry into drug courts is non-random, and that short follow up periods leave us without vitally important long term efficacy rates for these programs.

As I said, these are all valid points, when we are talking about whether or not there is a scientifically proven cause and effect between drug courts and long term sobriety.  But Erickson continues:

Completion rates for many drug court studies range form 25 to 66 percent. Thus, up to 2/3 of the initial participants do not complete treatment. If this is success, I’d hate to see what failure is.

We already know what failure is, Dr. Erickson. It’s currently our only alternative to drug courts in most places: long term expensive incarceration of addicts.

So while you make admittedly valid criticisms of methodology, don’t forget that most of modern medicine is based on epidemiological studies, which as a whole suffer from many of the same flaws. Epidemiology never proves causation. And yet, in some cases it is the only available method of study.

And even if drug courts only keep 10% of controlled substance offenders out of our prison system, they are a massive success. At 33% we ought to be dancing in the streets. You don’t have to read too many stories about Drug Court successes to know they are well worth it.

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For those charged in Austin with a Felony level offense possession of a controlled substance, there is often the opportunity to stay out of district court, and to have the case dismissed, if you qualify for and complete the Travis County Drug Diversion / S.H.O.R.T. program. (S.H.O.R.T. stands for System of Healthy Options for Release and Transition.)

For those seeking to learn about this program, let me tell you this: the SHORT program is no cakewalk. I often tell prospective clients that the one year they will spend completing the SHORT program is much tougher than one year of felony probation. Of course, the catch is this:

(1) you don’t get just one year of probation for a felony offense in Texas, because the minimum is two years, and many folks get somewhere between five and ten years of probation for felony drug offenses. And…

(2) probation stays on your record. If it’s deferred probation, you may be eligible for a motion for non-disclosure, but never an expunction. If you successfully complete SHORT, you can apply for an expunction, which completely wipes the arrest off of your record.

So while it may be true that SHORT is more difficult to complete than even a probation; but it’s still well worth it. When I hear clients tell me that some lawyer told them not to bother with the program, I always think that lawyer is trying to get himself a client, rather than help the person the best way they know how.

The Admission criteria for SHORT are listed here.

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I was not alone in commenting on the recent New York Times story about expunctions. Here are some other posts about the same article from around the legal blogosphere.

Michael Pinard’s post focuses primarily on housing and employment problems arising from an unexpunged criminal record.

Brooks Holland remembers former private clients who were haunted by cases they thought had been sealed.

Daniel Solove proposes a solution: require a private company to promise to correct records, as a condition of granting access to them. (Note: I think the problem here is that the records are public to begin with; and these companies are broadcasting true information, that is, So-and-So got arrested on Such-and-Such a date for This-Offense. The defense against slander is the truth.)

Tim Armstrong argues that Web 2.0 makes information less transitory and ephemeral than ever before, and therefore this is the logical result. (I agree.)

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While checking my referrer stats, I noticed someone find my blog by Googling “copy of police report Austin Texas”. This site pops up as one of the top responses to that search, probably due to my recent post about the criminal discovery process, both generally and here in Travis County. But the first site Google returns is the Austin Police Department’s FAQ page which purports to answer the question…

4. How do I purchase a police report?
For information about purchasing a copy of a police or accident report, contact that Austin Police Department Report Sales office at 974-5212. Reports can be purchased at either Police Headquarters in downtown Austin located at 715 E. 8th St; reports are available Monday through Friday between 7a.m. and 6 p.m. or you may purchase them from the North Substation locate at 12425 Lamplight Village Drive, reports are available Monday through Friday between 8 a. m. and 5 p. m.

Wait a minute, didn’t I just blog about the difficulties defense lawyers have in getting prosecutors in some counties to even allow them to read the police report, never mind getting a copy of them?

Well, here’s the answer, if you think there’s a conflict between APD’s FAQ page, and how things really work. Sure, they will take your money and hand over to you what they tell you is the police report, but it’s not…

It’s usually a two page document filled with information you already know or don’t care about, like the date of the arrest, the charges filed, the officer’s name, whether bias or family violence was involved, etc. etc.  Then there’s the section that gives detailed information about the defendant’s name, date of birth, driver’s license number, etc. etc.

But what about substance, the officer’s observations, any statements made? Well, I’m going to quote you exactly from one that I just took a look at:

On 8-25-06 at 0142 AM an arrest for DWI was made.

That’s it. It’s not a police report; it’s something called and actually titled a “press release”. You already know who you are, and what you were arrested for. Don’t waste your money giving it to A.P.D. for a so called copy of the police report.  Yes, there is such a thing as an offense report, which details all the officer's observations and conclusions, but it's not for sale.

I've had plenty of clients come into my office a few days after their arrest and announce to me that they already have the police report.  It always pains me to have to tell them that they have just wasted their time and money.

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A few days after I posted a comparison between the sentences for Enron’s Jeffrey Skilling and Leandro Andrade(sentenced to fifty years for petty theft with a prior), the New York Time uses Andrade as a comparison point as well.

The Times, however, was comparing the Supreme Court’s seeming eagerness to apply the Due Process clause to limit punitive damages in civil cases for corporations to its unwillingness to use the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Andrade case often makes a good comparison point, because it is such a stark and obvious example of our system of overpunishment, which is then mostly applied to the poor.  An award of $79.5 million against Phillip Morris is being heard by the Supremes next week.  From the Times:

The Eighth Amendment expressly bars “cruel and unusual punishments,” which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their “due process” rights, a far greater textual stretch.

 

On the issue of what is “excessive” punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for “extraordinarily reprehensive” and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.

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Doug Berman justifiably criticizes a Seventh Circuit opinion today that classified “failing to report to a county jail” as a “crime of violence” for Federal Sentencing Guidelines purposes. It  makes the difference for this particular defendant of being subjected to the mandatory 15 year minimum sentence under the armed career criminal statute.

I have discussed before here and here the Kafkaesque reality that, in the federal system, prior state offenses like evasive driving can qualify as violent crimes to trigger severe sentence enhancements. Today's new Kafka chapter in this criminal history story comes from the Seventh Circuit: a split panel decided in US v. Golden, No. 06-1362 (7th Cir. Oct. 25, 2006) (available here), that a defendant's prior "failure to report to county jail in violation of the Wisconsin Criminal Code" qualifies as a "violent felony" to trigger a mandatory minimum sentence of 15 years' imprisonment under the armed criminal career statute, 18 U.S.C. § 924(e).

Well, what does the statute itself say? 18 U.S.C. § 924(e)(2)(B) defines a “violent felony” as one that:

(1)   has an element the use, attempted use, or threatened use of physical force against the person of another, or

(2)   is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

So how does this court come to the determination that failing to report to a county jail constitutes a “violent felony” for guideline purposes? It quotes from U.S. v. Franklin, 302 F.3d 722 at 733, “the benchmark should be the possibility of violent confrontation, not whether one can postulate (a) nonconfrontational hypothetical scenario”.

The decision spells out that since recapture of the defendant may involve the use of force or danger that this qualifies as a crime of violence. I side with the dissenter who pointed out that a probation violation that led to a warrant, and therefore the possibility of a violent confrontation, could qualify under this analysis as well. Do we really need to go so far as to punish people for what they might have done but didn’t? (There was never any evidence in the case that the defendant’s recapture involved any violence at all.)

Unfortunately, the time for this lament has probably long since passed, but I believe that proper statutory construction demands that the courts take into account the other four types of crimes listed, in determining whether a state offense is a violent felony. After all, how similar is “failure to report to jail” to burglary or arson or extortion or crimes involving explosives?

Interpreting statutes should also require looking at legislative intent. Any evidence that Congress believed this law would lead to this absurd result?

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When someone gets arrested in Austin, Texas and comes to see me for help with their case, one of the things they are usually surprised to find out about the system is the length of time it takes to get a copy of the police report – several months for a misdemeanor, sometimes never on a felony.

That’s right: I said sometimes never on a felony – at least until after a witness has testified during trial, and has used the report to refresh his memory.

We are actually fortunate in Travis County that the prosecutors, at least on misdemeanors, are so generous with sharing “their police report” with the defense lawyers. The law in Texas does not require that they do so.

Yesterday’s ACLU press release brought this topic to mind (Secret Evidence Allowed in Criminal Courts Unfair). They have brought suit in Ohio to change the criminal discovery process in that state:

“Allowing prosecution and defense equal access to all evidence creates a level playing field in courts,” said ACLU of Ohio Legal Director Jeffrey Gamso.  “Under the current system, prosecutors have a huge advantage over the defense because they can investigate and prepare evidence that the other side may not know about until it is presented at trial. The Constitution guarantees that every person is entitled to a fair trial, but such rules greatly decrease the ability for a person accused of a crime to mount a defense.”

Obviously, at least from the major media outlet perspective, this becomes most important in cases of actual innocence, because those who are wrongly convicted receive (perhaps justifiably) the most press. 

Yet there is another more practical reason (besides fairness) why Texas and other states should be required by statute to share their entire file with defense attorneys: not doing so wastes time and money. From the same ACLU release:

Evidence shows that if the accused know all of the evidence against them, they are more likely to resolve the matter without a trial saving jurors, judges, court appointed counsel and prosecutors’ time and money.

This should be a no brainer. There is no good reason to deny the defense full access to all of the prosecutor’s information.  It should never be an issue of whether or not the defendant is guilty.

Travis County does a good job overall with this, especially when compared to other Texas counties, but the local rule on open discovery needs to be extended to even the most serious felonies here, as well as apply to “minor” felonies and all misdemeanors.

If the defense lawyer is allowed to copy the entire police report in a first time misdemeanor marijuana case, does it make sense to hide the ball when it comes to murder?

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Jack Love at New Mexico Law and Society questions the recruiting requirements for Police in his neck of the woods. Apparently Albuquerque is experiencing a severe shortage of police officers at the moment.

First, the idea of paramilitary police should be examined. Some police ought to be paramilitary, just like there should be some other specialty teams. Mental health, SWAT, close-encounter rough and ready teams, of one or more, should be available. But the tedious, boring, hard and dangerous work of patrolling and answering calls may be handled by officers without special qualifications, and without special physical attributes.

He goes on to argue that not all p[olice recruits need to fit the SWAT profile.  I agree in part, but would go further. Yes, the need will always exist for specialized units with young, physically fit officers on the ready to handle dangerous situations.

But, unfortunately, it’s our so called War on Drugs that has caused the recent explosion of paramilitary style raids, and fueled the need for paramilitary police units and tactics. It’s just one more example of how our senseless drug policy in this country is draining resources from where they are truly needed.

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The Austin American Statesman ran an article today called “Unlicensed Drivers Clog System”. The short version of it is this: in 2003, the Texas Legislature needed to pull an accounting trick out of their hat, so that they could comply with the Texas Constitution’s balanced budget requirement. (See 2003 Budget Statement by Texas Comptroller.)

One of the ways they came up with a balanced budget was to impose future surcharges for DWI, No Insurance, and other offenses, and then project out how much revenue they would receive to cover their expenditures. Like most “blood from a turnip” schemes, they conveniently overestimated the financial returns they would receive (and they called it a “surcharge”, because who wants to vote for a “tax”?) The truth is that most folks that drive without insurance, do so because of poor financial health to start off with; adding extra financial burdens to their becoming street legal just increases your uninsured motorist coverage.

Unfortunately, the “pay us even more money, or we’ll suspend your license” law didn’t have the intended effect. It doesn’t raise that much money for the State of Texas (except in the case of those Austinites who can afford the $3000 to $6000 surcharge following a DWI conviction), but it does cause more folks to be driving around town with a suspended license.

Then throw into the mix this basic fact of life: people who are driving around with expired insurance often haven’t updated their address with Texas DPS in years. Then, when DPS mails them a letter about the suspension to the address on their license, they don’t receive it.

What happens next? A bunch of folks end up arrested and facing charges of DWLS, when they have a defense: they didn’t have actual notice that their licenses were suspended.

Now it may be true that some of these defendant’s haven’t behaved 100% responsibly, and need to be “encouraged” to become street legal, and to update their addresses with the DPS. But forcing them to pay even more money before they are allowed a valid license… that’s just counterproductive.

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The recent series of posts over at Grits for Breakfast regarding phone sytems in jails started with a nod to NPR’s recent segment called “Inmates Smuggle In Cell Phones with Ease”.

In the comment section to that post, readers referred to a Brazoria County case where a Texas inmate was given a forty year stacked sentence for unauthorized possession of a cell phone in a correctional facility.

Since I am a Texas criminal defense lawyer, and therefore familiar with our system of over punishment for minor offenses, I assumed the story was, unfortunately, not just apocryphal. One quick google search later, I find the story archived in Brazoria County’s “The Facts”. Here are quotes from the prosecutor responsible for the case, and one of the prison officials involved:

While the offense might seem minor on the surface, authorities said the phone can present a grave danger in a prison.

“You can coordinate crime from the inside out,” Brazoria County District Attorney Jeri Yenne said. “It is a significant safety issue. You can actually engineer murder from the inside and say you were (in prison).”

Darrington authorities have seized about 75 cellular phones in the last year, Warden Arthur Velasquez said.

It could lead to murder? Well, how about this: $30,000 per year to incarcerate times 40 years times 75 inmates is $90,000,000.00. Yes, that’s right, ninety million dollars. And that’s just for one of Texas’ many prison facilities.

I imagine the truth is that this particular inmate probably got on someone’s bad side to actually be prosecuted for this; I’m sure it’s not actually a regularly prosecuted offense. Still, is this what we really want our tax dollars going towards?

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Since at first blush, it may sound odd for a criminal defense lawyer to seemingly defend the admittedly high sentence given to Jeffrey Skilling, let me make this clear from the outset: I’m talking about putting this punishment in perspective with others routinely given out to “blue collar defendants”.

Remember the 60 Minutes story on Leandro Andrade, who stole $153.54 worth of videotapes from Kmart? The Supreme Court upheld his two consecutive 25 to life sentences in Lockyer vs. Andrade.

True, in part the Supreme Court concluded this did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment because of Andrade’s prior criminal history.

But, if you find Skilling’s punishment obscenely disproportionate to the crime, ask yourself this: If we were able to combine Andrade’s lifetime of thefts, including the ones he probably never was arrested for, would the aggregate value of the victim’s losses even come close to the financial disaster that Skilling’s crimes caused?

Skilling’s convictions for fraud, conspiracy and insider trading are all, at their core, basically theft offenses. One huge theft offense, that it took several years to commit. With thousands upon thousands of victims.

Let’s focus on more appropriate(i.e. lower) punishments for repeat but small time theft offenders, before we shed any more tears for Jeffrey Skilling.

(I'm looking forward to the legal blogosphere's reaction...alos, I'll probably have more to say on the actual subject in the next few days.)

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Fellow local Austin blogger Scott Henson asks “What’s wrong with giving prisoners phone service?” Here’s one of several salient points he makes in favor of allowing or increasing inmates’ access to the outside world:

(M)aintaining family ties is critically important to preventing recidivism and facilitating prisoner re-entry after their sentence is complete. Preventing contact with families punishes children in particular (half of men and two thirds of women in TX prisons have minor children on the outside)

He follows up with a post about jail profiteering on collect calls from inmates. (Most folks don’t realize how much local jails make off of these calls, but you tell me, isn’t seven times the going rate “gouging”?). In it, he raises a serious Sixth Amendment right to counsel question:

Is county profiteering off jail calls to attorneys effectively reducing inmates' access to attorneys and inhibiting their right to counsel? Wouldn't such policies provide an institutionalized economic incentive for attorneys to minimize client communications?

I dare say he’s right, but unfortunately, it probably falls into the “there’s not much a lawyer can do about it” category. Trust me, no Texas Appeals court will ever reverse a conviction based on it. Perhaps a class action lawsuit on behalf of those families being bilked would be the right tack. But, bearing in mind that I don’t practice civil law, I doubt they would have the equivalent of standing to assert their incarcerated family member’s criminal procedure rights.

As to the situation here in Austin, I’m happy to say there’s been recent good news on this front. The Austin Criminal Defense Lawyer’s Association has recently come to an agreement with the Sheriff’s Office that the Travis County Jail will provide free calls from the Del Valle Correctional Facility to all local attorneys representing inmates. Now we just need to address those outrageously expensive collect calls home…

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…and if they do, will a judge toss out any evidence they obtain as a result? The short answer is: police in almost all circumstances are allowed to say whatever they want to get you to incriminate yourself. A short example follows:

When Al Pacino, the low level mobster, introduces Johnny Depp, the undercover police agent, to the other Mafiosos in Donnie Brasco, Depp’s character is justifiably met with some initial skepticism.  Is an undercover police agent in this situation duty bound to reveal his real identity in this situation, if he is asked, “Are you a cop?” Imagine the consequences.

Common sense tells us the answer is no. The undercover agent doesn’t have to choose death simply to maintain the constitutionality of the investigation. (And the U.S. Supreme Court came to the same conclusion in Hoffa v. United States. Yes, the Jimmy Hoffa.)

Even before that decision, police ruses were commonplace, and they have become even more so in today’s drug war environment.

In the recently decided Krause v Kentucky, however, the state’s Supreme Court decided that a trooper went too far over the line in obtaining a drug suspect’s consent to search his home. The police in this case woke the defendant up at 4 o’clock in the morning to tell him that his roommate had been accused of rape that very night. They needed to search the house to verify whether the accuser’s description of the apartment matched the scene of the alleged crime.

In fact, there had been no rape, not even an allegation, nor an accuser. It had all been a lie, intended to cause the known innocent person to allow police entry, where they could then search for drugs. Cocaine was eventually found “in plain view”.

The Court decided to reverse the conviction (affirmed by a lower court) because Schneckloth v. Bustamonte requires consent to search not to be coerced. Even that part of the Schneckloth decision has been watered down over the years, but the Court found that upholding the search would discourage future citizen cooperation in real cases.

Since the state decision was decided, at least in part, on federal Fourth Amendment grounds and federal caselaw, the State of Kentucky may appeal this all the way to the U.S. Supreme Court. Part of me wants to know what the result would be, and the other part fears further erosions of our constitutional rights. As far as the drug war goes, is there no end in sight to the ridiculous police state we are becoming?  Don’t forget, this ludicrous set of facts led to a conviction which was initially affirmed.

(Hat Tip to the Fourth Amendment blog for initially posting about this case; also, please read that blog for useful tips on navigating the confusing Kentucky Supreme Court’s webpage, if you want to read the decision.)

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Mason Tvert, campaign director for Safer Alternative For Enjoyable Recreation (SAFER), lists several reasons to support drug policy reform in this editorial in the Rocky Mountain News:

Alcohol is deadly; marijuana is not. According to the U.S. Centers for Disease Control and Prevention, approximately 20,000 Americans die every year as the direct result of alcohol consumption. The number for marijuana is zero. In addition, alcohol overdose deaths are not just possible, but an all-too-frequent occurrence…

Iowa Guy weighs in with a similar theme (also in relation to Colorado’s Amendment 44):

Studies have repeatedly shown that marijuana is less harmful than alcohol. Thousands of people every year are killed, directly or indirectly, by alcohol abuse. Alcohol overdose kills hundreds. Spousal abuse is almost always linked to alcohol. Drunken driving is a huge problem.

On the other hand, there has never been a single death from marijuana overdose. Users do not become violent. Marijuana is not addictive.

Juliet Samuel writes a thoughtful op-ed in the Harvard Crimson on the inequities that come from punishing marijuana use by University students depending on the current political climate. Her piece prompts a letter to the editor by Robert Sharpe:

Unlike alcohol, marijuana has never been shown to have caused an overdose death, nor does it share the addictive properties of tobacco. The short-term health effects of marijuana are inconsequential compared to the long-term effects of criminal records.

It’s just as true in Austin (where the University of Texas got its number one party school ranking by coming in first for hard liquor use and third for beer consumption) as it is everywhere else: much more trouble is caused by the use of alcohol than the use of marijuana. The trouble that marijuana “causes” in Travis County is entirely due to its criminalization, rather than to its actual consumption.

Update: Marijuana vs. Alcohol Deaths

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John Kelso’s humor column about why the Travis County Jail won’t adopt Mason County’s “pink jumpsuits for inmates policy” provides me with a viable Austin segue for the recent criminal law blogosphere’s discussion about shaming punishments.

Doug Berman is in favor of them, at least when the only alternative seems to be meeting out unreasonably long sentences.

Corrections Sentencing points out the two motivations behind shaming: teaching the offender to contemplate his place in the community vs. vindictive self righteousness. I agree that it’s a fine line.

Poverty Lawyer questions the fairness of publishing photos (pretrial, mind you) of johns caught in prostitution stings.

Dan Markel argues in The Economist that shaming punishments undermine human dignity, and follows up with a seven part series about them.

The comments section alone of Orin Kerr’s contribution to the discussion at Volokh would make for a good day’s worth of reading.

My take on it? Let’s read a quote from the Houston Chronicle’s story on the pink jumpsuit controversy:

Three county inmates in the jail here lay on their bunks, not saying much.  They wore pink jumpsuits and pink slippers, and one was wrapped in pink sheets.  They were surrounded by pink bars and pink walls.  They were not comfortable.

Despite the cramped condition of the tiny jail, the inmates said sitting there was better than working outside, where they might be seen by people they know.  Using pink uniforms in a pink jail is a small step to deter inmates from ever wanting to spend more time in the Mason County Jail, which might be getting too old to operate, said Sheriff Clint Low.

"The county would have more inmate labor without them," said one inmate, who did not want to be identified. "I'm not going outside in these things. It's a good deterrent because I don't want to wear them anymore."

This is a complex issue, and this quote provides us with reasons pro and con, and in just a few short sentences.  The inmates express their intent to never return to jail, but to the extent that they refuse to participate in a work program that would get them released earlier.  How bad could sitting in that pink jail be, if it's better than being supervised outdoors picking up trash in return for days, weeks or even months off their sentence?

I’m not sure the value lost in trustee labor (to both the community and the defendant) is worth the future deterrent effect these inmates are predicting.  All inmates I've ever met have expressed their intentions to never return.  

But, if we're talking about alternatives to unreasonably long prison sentences for non violent offenders, I’m open to almost any other option available…

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Public Defender Stuff (the news service for the Public Defender Investigator Network) updates their Guide to Every PD Blog, which now includes over 30 links. Looks like it’s time for me to go back and update my blogroll, and add some sites to my reader…

Here's my prediction: if the new IE really causes a boom in lawyer blogging, it won't be too long before we'll have over 30 PD blogs for every state in the union...

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Sumpter & Gonzalez is an Austin criminal defense firm with four attorneys: David Gonzalez, Corinne Sumpter-Gonzalez, Kristin Etter and Dal Ruggles.  A quote from their main website:

Sumpter & González, LLP takes a holistic approach to the practice of law. We believe that there are many situations and conflicts that end up in the legal system because of the breakdown of other systems or of relationships; therefore, we make it our job to look for creative solutions to clients’ problems, even where those solutions lie outside of the courtroom. Inside the courtroom, we are tireless advocates and litigators, dedicated to obtaining the best results for our clients.

On a personal note, I can say this about them: those aren't just empty words.  The team is well known around the Travis County Courthouse for fighting hard on behalf of their clients, and getting good results.

(Hat Tip: Joel Skotak, the web designer for their firm who I ran across commenting on my blog.)

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It seems like a silly question, with an obvious answer, but let me start at the beginning…

There has been a great deal of fuss in the blogosphere and the media about Ken Lay’s convictions being overturned because he died while his appeal was pending. (Read the judge’s decision here.) Some applaud because they believe the original verdict was incorrect.

But both sides miss the greater point here. I hope everyone would agree that the government can’t actually put you on trial after you are deceased, and make (perhaps?) your family go to court to defend you.

Well, if we believe in the appeals process being a part of our judicial system, why should it be any different if you haven’t had a chance to appeal your (potentially) wrongful conviction?

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I’m always wary about commenting on other people’s personal tragedies, but the confused logic of a recent editorial in the Denver Post cries out for critical thought.  Jim Spencer (no relation) talks of his brother’s untimely demise at the hands of alcoholism and heroin use, and starts his piece with this quote: 

We buried my brother earlier this year on his 56th birthday, roughly 41 years after I watched him take his first drink.  I don't recall seeing my brother smoke pot on his way to chronic alcoholism, heroin addiction and a compulsion for painkillers that once led him to steal a prescription pad from our family doctor.  Though he probably smoked some dope, addiction helped kill my brother, not any single kind of drug.  

The Op-Ed piece goes on to outline the writer’s opposition to Colorado’s Amendment 44, which would decriminalize small amounts of marijuana possession for adults 21 and over.

But, let’s take a closer look at that initial statement of facts.  Doesn’t it argue against the “gateway theory” that we hear espoused (on our dime) by the Drug Czar every day?

Addiction comes in many forms, and is often either physically or psychologically lethal.  But the real question is this: should we solve that problem by incarcerating the addict?  That's what our current drug policy mandates.

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Paul Armentano, senior policy advisor for NORML, writes an article in The Examiner about the recent Department of Justice Report “Drug Use and Dependence, State and Federal Prisoners, 2004”.

The new report is noteworthy because it undermines the common claim from law enforcement officers and bureaucrats, specifically White House drug czar John Walters, that few, if any, Americans are incarcerated for marijuana-related offenses. In reality, nearly 1 out of 8 U.S. drug prisoners are locked up for pot.

Of course, several hundred thousand more Americans are arrested each year for violating marijuana laws, costing taxpayers another $8 billion dollars annually in criminal justice costs.

He goes on to comment that this figure does not include county jail inmates.  Since probably most marijuana related incarceration is of the misdemeanor variety, I'm sure this actually seriously mis-underestimates the cost to us as taxpayers.  In Austin, most marijuana offenders sentenced to incarceration (i.e. not probation) will spend all of that time in the Travis County Jail.  I don't have the statistics, but I'm sure it's the same in most or all Texas counties.

I’ve long been a believer that educating folks about the financial costs of the drug war may be what ends up convincing politicians to eventually reform our drug policy. Thankfully, here in Austin, first time misdemeanor marijuana offenders are eligible for Pre-Trial Diversion.  This program leads to a dismissal with counseling and community service.  Also, it results in a savings to the community, as well as just being the right thing to do with a first time marijuana offense.

Noting the large percentage of Americans who self-report marijuana use at some point, I have to agree with Armentano’s conclusion as well: “It makes no sense to continue to treat nearly half of all Americans as criminals”.

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Within today’s New York Times most emailed articles is this gem: Expunged Criminal Records Live to Tell Tales. It chronicles the difficulties folks have when facing an employer armed with a criminal background check when they have a minor offense on their record, and even when they were granted an expunction.

(R)eal expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector.

Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Just google “criminal background check”, and you’ll find hundreds of private companies willing to sell someone’s criminal history (for a fee, of course).

In Texas, the right to an expunction only accrues to someone who is acquitted, or whose case was dismissed. Sometimes my clients in Austin find themselves arrested for a “minor offense”, where the real punishment potentially comes not from what the judge will give them if they are convicted, but from the lifetime of explaining that DWI, Assault, Theft or Marijuana arrest on their record.

Unfortunately, the Texas Expunction statute only applies to governmental agencies, and does not reach the private companies that gathered the data between arrest and dismissal. I’ll have more soon on expunctions, and what can be done to “erase your criminal history”.

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The Las Vegas Review-Journal editorializes on the impropriety of the Drug Czar’s use of taxpayer money to campaign against Nevada’s upcoming marijuana decriminalization initiative.

The hypocrisy of politicians who claim to be against big government and federal intervention on matters of local interest often arises when they support the so called War on Drugs. The Dallas Morning News reprints Ryan Sager’s column which mentions the locally popular medical marijuana movement as an example of this.

Lianne Hart of the Los Angeles Times writes an article about a small Arkansas town’s efforts to decriminalize marijuana.

Kanrei blogs about the Canadian military stumbling upon ten foot marijuana plants in Afghanistan.

And finally, while I suppose I wouldn’t mind being known as Austin’s “Marijuana Lawyer”, this news item prompts me to say I can only take payment in the form of cash, check or credit card.

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In United States v. Hernandez-Rodriguez, decided October 9, 2006, the fifth circuit addressed whether a prior conviction under Texas state law for Deadly Conduct justified a 16 level crime-of-violence increase under Federal Sentencing Guidelines.

After pleading guilty to Illegal Reentry, the defendant’s base offense level of eight was tripled by the crime-of-violence adjustment. Since Deadly Conduct was not one of the enumerated offenses, the increase could only be justified if one of its elements was “the use, attempted use, or threatened use of  physical force against the person of another”.

Since the defendant had pled to § 22.05 (b)(1), which covers discharge of a firearm at individuals, rather than (b)(2), which covers discharge of a firearm at a habitation, building or vehicle, the court concluded that it met the requirements for a crime of violence.

This case illustrates the need for lawyers to be creative when seeking plea bargains.  It's too late to turn back the clock, but perhaps the defense lawyer in the first case could have sought a plea agreement to (b)(2) instead of (b)(1).  That might have saved this future defendant many years off his next prison sentence.

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The short answer is “no”.

Prostitution stings (aka john stings) involve female officers dressing up as call girls/hookers, hanging out in high crime areas, and approaching men (usually in cars), and asking them if they “want a date”. The conversations proceed from there, often with the undercover officer being the first one to actually raise the prospect of exchanging sex for money (which is the legal definition of prostitution in Texas).

Austin Police Department runs these sorts of sting operations several times a year. Well, if you’re arrested in this sort of operation, can your lawyer successfully argue entrapment?

Probably not. Through caselaw, the definition of entrapment in Texas includes not only inducement or persuasion by the officer to commit the crime. It also must be of such a nature that the ordinary law abiding citizen would have been induced or persuaded to commit it.

Thus, at jury trial, if the defense were even successful in having an entrapment charge submitted to the jury, the prosecutor can simply argue this: “Find this defendant not guilty, if you too, the jury members would have agreed to have sex with this undercover officer for money.” That’s a pretty high standard to get a juror to agree with (at least back in the jury room with the other members).

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§ 8.06. ENTRAPMENT. 

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.  Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b)  In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

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Also known as “Your Tax Dollars at Work”, Austin, Texas’ own KEYE news reports on the latest and greatest of Sting Operations out of Dallas:

Since January, arrests in sting operations featuring female officers posing as prostitutes are up 300 percent citywide. In the first nine months of 2005, there were about 141 arrests from sting operations; in the same period this year, there were 565.

I don’t practice criminal defense in Dallas, but I’ve seen the bill to the public for Austin prostitution sting operations (e.g., here, and here for some APD news releases), and let me tell you: they get expensive.  I’m a believer that the State has a legitimate interest in regulating and perhaps decreasing prostitution.

But perhaps it’s one of those things like our so called War on Drugs: regulation would probably work better than criminalization.

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…at least, they shouldn’t be.

I’m always amused when I see the back and forth on “Law & Order” between the prosecutors and the defense attorneys. It mostly consists of the types of interactions that give lawyers a bad name: threats, insults, and general nastiness are (in TV Land) the norm.

In reality, or at least in Austin, Texas, prosecutors and defense lawyers generally get along with each other. And I can assure the reader that you don’t want to hire a defense lawyer who is known for behaving the way they do on TV. If the prosecutor thinks your lawyer is a jerk, how well do you think negotiations will go? (And, yes, fewer than 5% of cases end up having to go to full blown jury trial.)

But yesterday, Appellate Law & Practice posted an interesting anecdote involving a real life example where a prosecutor had written a “fictional” account of an ongoing case. Quoting from the appellate decision removing her from the case:

On the other hand, she characterizes the defendant in the novel as "despicable," "felony ugly," a "pig," a "heartless bastard," and a "dirt bag." Defense counsel is portrayed as "disingenuous and manipulative" and as deserving to have his "ass" kicked. These stereotypical generalizations have no place in a current public prosecutor's thinking processes even if they are uttered in a fictional account.

I don’t even know what to say about that… do you think maybe she got her law degree from NBC?

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Grant Griffiths’ post about pending legislation upping the Driver’s License Suspensions in Kansas for DUI got me thinking:

Under the proposal, a first-time DUI offender would receive twice the standard license suspension if his BAC was .16 or greater. Three offenses at the higher level would result in permanent revocation of driving privileges.

Here in the capital of Austin, Texas (where we call it DWI), the legislature meets every two years, and this subject come up every session. Increasing the DL suspensions for DWI convictions is a popular political maneuver, for legislators that want to be known as “tough on crime”.

Unfortunately, it’s one of those things that probably increases rather than decreases “crime”. Driving has become a necessary part of life these days. And most of my DWI clients are, by far, first time offenders. Considering all the counseling, fines and community service a first time DWI offender receives, why subject them to arrest for Driving While License Suspended?

Grant also mentions that these license suspensions apply in Kansas, even if the defendant is never convicted of the offense. The same is true in Texas.

License revocations should be limited to repeat DWI offenders.  And “DWI offender” should mean those actually convicted of the offense.

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In its never-ending disinformation campaign, the DEA has set up a website called StumbleWeed, a fake magazine to “teach” children the “truth” about marijuana. In the section titled Rx Pot: Prescription for Disaster, they claim to cut through the hype about medical marijuana, and get to the facts:

Even though some groups have endorsed smoking marijuana for medical use, major medical organizations do not agree. This is what they say…The American Medical Association rejected marijuana as medicine.

Apparently, even though they provide the hyperlink to the AMA’s position on medical marijuana, the DEA believes folks won’t read or understand it. Let’s take a look at the first and last sentences from the link itself:

The AMA calls for further adequate and well-controlled studies of marijuana and related cannabinoids in patients who have serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease…The AMA believes that effective patient care requires the free and unfettered exchange of information on treatment alternatives and that discussion of these alternatives between physicians and patients should not subject either party to criminal sanctions.

Not exactly undecipherable medical mumbo jumbo.   Just the AMA directly calling for more studies on the medical uses of marijuana, and absolutely stating opposition to its criminalization.

According to the DEA, however, the AMA “rejected marijuana as medicine”. Here’s a free tip for the DEA: disinformation campaigns work better, when you don’t provide direct access to the truth.

(Hat Tip: Drug WarRant)

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News8 Austin had a recent segment on how the increasing number of DWI arrests in Austin has caused the current County Court judges to ask for another court:

Each month Travis County court-at-law judges handle thousands of criminal cases. Judges say their average monthly caseload has increased 60 percent since 2002… Each county court currently has an average of 3,200 cases pending… In the last decade, the number of DWI cases has risen 135 percent.

DWI cases can backlog a system faster than any other type of misdemeanor, precisely because of the way we (as a society) handle them. Austin Police Department has, for all intents and purposes, moved towards an “arrest anyone with the odor of an alcoholic beverage on their breath” standard. The more questionable DWI arrests that are made, the more the innocent civilian decides he wants to take a case to trial – which causes the backlog.

The criminal justice system depends on plea bargaining most cases, or it will grind to a standstill. Practicing in these courts everyday, I can vouch for the need of at least one new court.

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§ 481.121. OFFENSE: POSSESSION OF MARIHUANA. (MARIJUANA)

(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.

(b) An offense under Subsection (a) is:                                      

            (1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;

            (2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;

            (3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;

            (4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;

            (5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds; and

            (6) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000 pounds.

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Austin Police Department's DWI Enforcement Unit (Task Force) was created in 1998.  Since then, DWI arrests in Austin, Texas have more than doubled.

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A Lawrence Taylor post on how body temperature can distort Intoxilyzer results.

DUI Rob reminds us that Radio Frequency Interference can effect the Intoxilyzer 5000.

George Creal posts an article from the Arizona Daily Star on “inconsistent” police testimony in DWI cases.

St. Louis DWI Lawyer writes about some of the factors NHTSA trains officers to look for in a DWI.

And Tiffany Sanders reminds us DWI arrests sometimes happen, even if you’re not on a street or highway.

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I enjoyed Cliff Hutchison’s post at the ScienceEvidence Blog (cleverly titled Don’t Bogart That Expert) about the qualifications of a marijuana defendant’s expert witness. 

The case discussed involved a former criminal defense lawyer who was an opponent of the drug war, who had been qualified in 100 marijuana cases to testify as an expert witness, always for the defense. The court eventually ruled that the defense had not properly established his qualifications as an expert in the field.

However, they rejected the Government’s theory that his testimony was more prejudicial than probative, simply on the basis of his bias against our current system of prohibition and incarceration.  Cliff questioned that part of the finding:

Query, though, if the government wasn’t correct in arguing that an advocate witness has no business offering Rule 702 testimony? Logan claimed to have testified in over one hundred marijuana cases, and if his testimony was consistently an argument favoring marijuana defendants, how can it be considered reliable? The testimony becomes simply bolstering, in the guise of expert opinion, hence not helpful to the fact finder.

I have to jump in and disagree here. Let me make my point by using some obvious and common examples from the prosecution. Would this mean that the Austin Police Department’s DWI Task Force officers, who are qualified as experts in the standard field sobriety tests based on their NHTSA training, would be disallowed if it turned out they always testified for the prosecution? (I assume it’s self evident that they do.)  If I could just get them disqualified, I'd probably win every case...

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I expect there will be some buzz about Scalia’s comment in oral argument today that:

"No one thinks your client is abstaining from tequila for fear of being deported," he said. Supervision "is impossible once he leaves the country," he added. "This is an ingenious exercise of the conceivable." (See page 16, line 15 of the transcript, here)

My first prediction is that the blogosphere will discuss (and, of course, take different positions on whether) that is some form of prejudice shown by Scalia.

More interesting, perhaps, is the case itself, where the question presented is: Has the Fifth Circuit erred in holding - in opposition to the Second, Third, Sixth, and Ninth Circuits - that a state felony conviction for simple possession of a controlled substance is a "drug trafficking crime" under 18 U.S.C. § 924(c) (2) and hence an "aggravated felony," under 8 U.S.C. § 1101(a) (43) (B), even though the same crime is a misdemeanor under federal law?

My second prediction is that the Tequila remark will get more coverage than the substance of the case.  We'll see...

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The Supreme Court refused to hear eight different criminal procedure cases today, leaving us with only two for this term. The cases shot down covered topics (among others) from funding indigent defense expert witnesses, invoking your right to counsel, actual innocence exceptions to procedural requirements, Brady v. Maryland issues and one I was really looking forward to: Acosta v. Texas which asked the court to decide whether Texas Penal Code Section 34.23 (c) (1) was unconstitutional, in that it prohibited the use of dildo devices. 

Acosta’s attorneys presented great arguments as to why their Cert petition should have been granted, but to no avail. As readers of this blog no doubt already know, I am concerned here as usual about the standards used in deciding the constitutionality of these laws, rather than the effects themselves.

Like my commitment to blogging about useless drug prohibition laws, this statute fits into a similar category. Here’s a law that perhaps the majority of the public thinks is silly (in fact, it is a felony offense in Texas). Yet, it’s too much of a political hot potato for the Texas Legislature to ever address it. So, it remains on the books.

There were so many interesting Lawrence v. Texas issues, as well as general ninth amendment issues that the court should have granted cert here. Oh well, it may be a slow term for criminal decisions after all.

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Article 42.12. Section 20. Reduction or Termination of Community Supervision

(a) At any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge. Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that:

     (1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and

     (2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying, or revoking a license under that chapter.

(b) This section does not apply to a defendant convicted of an offense under Sections 49.04-49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, or a defendant convicted of an offense punishable as a state jail felony.

[See also Applying for Early Release in Texas]

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The first Monday in October brings us a Linda Greenhouse piece in the New York Times today predicting that the cases the United States Supreme Court chose to decide this term will tell us more about the composition and beliefs of the new court more than last year’s decisions did:

During the first term under the leadership of Chief Justice John G. Roberts Jr., the justices were able to find common ground with some regularity by agreeing not to decide much…Chances are high that the new term, which begins on Monday, will be different.

She doesn’t give any specific examples about the criminal procedure issues in front of the court, but I anticipate some interesting developments in the criminal law area too. I look forward to joining the blogosphere’s discussions on those cases. More to come later…

(Hat Tip: The Legal Reader)

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I knew the blogosphere would react to the Christian Science Monitor’s series of articles on the drug war in Columbia, even as I posted my own criticisms of the piece. Why is it that folks fail to see the obvious economic implications that our current drug policy mandates? Drugs don’t cause the violence (or fund the criminals), it’s the criminalization itself.

Well, the blogs are indeed rumbling, and Pat Rogers has an excellent rebuttal to the entire series from the CSM here, and he follows up with a post today that drives home the point: FBI still not connecting the dots.

New York University Professor Barnett Rubin, who appeared before the United States senate Foreign Relations Committee recently: "If it were not illegal, it would be worth hardly anything. It's only its illegality that makes it so valuable."

So valuable – and therefore so profitable. Simple economics. End of story. How long until we wake up and acknowledge this?

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Carolyn Elefant predicts that the Government will give up prosecuting John Gotti, Jr.

Sarena Strauss posts about one of the problems with Sex Offender Registration laws.

Jonathan Stein on the advantages of getting to know opposing counsel.

Injustice Anywhere blogs about, well, successfully fighting an injustice.

And Long Island Criminal Trial Lawyer announces his new monthly newsletter.

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§ 12.35. STATE JAIL FELONY PUNISHMENT. 

(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.

(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:

            (1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

            (2) the individual has previously been finally convicted of any felony:               

                        (A) listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or

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§ 12.34. THIRD DEGREE FELONY PUNISHMENT. 

(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

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§ 12.32. FIRST DEGREE FELONY PUNISHMENT. 

(a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

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§ 12.21. CLASS A MISDEMEANOR. 

An individual adjudged guilty of a Class A misdemeanor shall be punished by:

            (1) a fine not to exceed $4,000;

            (2) confinement in jail for a term not to exceed one year; or

            (3) both such fine and confinement.

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§ 1.07. DEFINITIONS.

(a) In this code:

                        (39) "Possession" means actual care, custody, control, or management.

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§ 1.07. DEFINITIONS.

(a) In this code:

                        (8) "Bodily injury" means physical pain, illness, or any impairment of physical condition.

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