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

Keith Lauerman announced the launch of his new blog titled “Criminal Defense in Travis & Williamson County, Texas: Reality 101” where he will discuss “perspectives, insights, and ideas of resolving criminal accusations against the citizens of Travis and Williamson Counties”.

He starts things off with a bang, a lenfthy substantive post about punishment, sentencing guidelines for murder, and what qualities in both the defendant and decedent make for shorter or longer punishments in murder trials.

Should the status of the victim make a difference? Should the gender of the convicted impact the punishment? Is class and race a factor to be considered? Should it matter whether the deceased was a good person or a bastard?

Consider this scenario: Should an honor student who beats a homeless person to death any less culpable than the homeless person who beats an honor student to death? Often the homeless person would receive a stiffer sentence based on extensive testimony on behalf of the more affluent victim.

But, is the act of the beating and the intent involved any different between the perpetrators? Obviously not, but does it make sense that one should receive more time than the other with all other factors being equal except for their position in life?

All good questions, and ones criminal defense practitioners face frequently, in a variety of contexts. That’s why Keith tells us he’ll be posting about “the wisdom of a trial and the pros and cons of risking it all”.

Add him to your RSS reader. Also, if there are other criminal defense bloggers out there I haven't run across yet, please let me know. I’d love to review your site and post a link to it from here.

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Propaganda: information that is spread for the purpose of promoting some cause.

Propaganda: false or partly false information used by a government or political party intended to sway the opinions of the population.

Ryan Grim at Politico reports that the National Institute on Drug Abuse was caught vandalizing its own Wikipedia entry. And, of course, we the taxpayers are paying them to do it.

Pete Guither follows up at Drug WarRant with an excellent set of links detailing the original entry, and the Government’s changes to it. NIDA’s first attempt to makeover its Wikipedia entry reads like something written by an amateur PR firm:

NIDA is not only seizing upon unprecedented opportunities and technologies to further the understanding of how drugs of abuse affect the brain and behavior, but also working to ensure the rapid and effective transfer of scientific data to policy makers, drug abuse practitioners, other health care practitioners, and the general public.

The NIDA web site is an important part of this effort.

This truly laughable attempt to recreate its entry was soon caught both by Wikipedia’s bots, and by the human editors. Apparently, the vandals at NIDA didn’t know that all entries are saved on Wikipedia, from minor changes to complete wipeouts.

That didn’t stop them from making slower but still blatant attempts to add their propaganda to the entry over the coming months. They have since admitted that they did it, and the current entry on Wikipedia contains a new section about how the government agency tried to remake its image on the site. Serves them right – and unlike their “modifications”, at least that section is 100% true.

Other bloggers reporting on and picking up this story include Steve, John Daly, Wonkette (who calls it the “War on Wikipedia”), Scott Morgan, Jacob Sullum, LeisureGuy, Magellan, Carrie Cann, Mia Culpa, and several others. 

This is an important story…other folks need to pick this up and run with it as well. The “War on Drugs” is indeed the “War on Truth”.

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British pharmaceutical company GW announced it planned to start human trials on a fat-fighting marijuana drug today. From the CNN article “Drugmaker to test fat-fighting marijuana drug”:

"The cannabis plant has 70 different cannabinoids in it, and each has a different affect on the body," GW Managing Director Justin Gover told Reuters.

"Some can stimulate your appetite, and some in the same plant can suppress your appetite. It is amazing both scientifically and commercially," he said in a telephone interview.

Unfortunately, the United States government, of course, refuses to see any medical potential in marijuana whatsoever. Meanwhile, Americans keep getting fatter and fatter…

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There’s been quite a stir in the blogosphere over the Supreme Court decision in Cunningham v. California. Much of it has lamented the fact that the convicted defendant’s sentence was lowered as a result of the decision, without much thought about the principles involved.

Actually, it’s quite simple really. The Supreme Court invalidated that part of California’s sentencing that allowed a judge to impose a higher sentence than the jury verdict authorized.

Let’s take a look at it from the perspective of the laws in Texas on Assault. The three main categories of assault in Texas are: Class C Assault – offensive touch, Class A Assault –bodily injury, and Aggravated Assault – serious bodily injury or deadly weapon.

These three range from a traffic ticket level offense, punished by no jail but up to $500, to a second degree felony, punished by up to 20 years in prison. Obviously, that makes quite a difference.

Let’s say you were charged with assault, because someone filed a complaint against you for pinching them, and they found that offensive. That’s a Class C.

You want to dispute the charges, and you go to jury trial and lose – the jury finds you guilty, of Class C offensive touch. Now, while that’s bad enough, here’s what California’s scheme effectively did before it was struck down.

It allowed the judge then to make a finding that there was either serious bodily injury involved, or that you used or displayed a deadly weapon, even though neither of these issues was submitted to the jury. The judge, after making the finding, elevates your offense to a second degree felony and sentences you to the 20 year maximum for that charge. 

Or 5 years. Or anything within the 2-20 year and up to $10,000 range. (This isn’t the case in Texas – I’m just using this as an example.)

California v. Cunningham simply said that if there were facts to be decided that increased a defendant’s punishment (other than prior convictions), that those facts had to be admitted by the defendant, or submitted to a jury and proven by the prosecution beyond a reasonable doubt.

When you take a look at it from the proper perspective, it makes perfect sense. After all, isn’t that what trial by jury is supposed to mean in the first place?

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Ray Suarez started his questioning of Marcia Coyle about yesterday’s Supreme Court Cunningham decision with the following:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges the discretion to increase prison time for convicted criminals based on factors not considered by a jury during trial.

As a fan of the NewsHour, I’ll give credit where it’s due: this summation actually does a better job of legitimately stating the issues involved in the case than most major media outlet were able to accomplish. Yet it’s a heck of a loaded beginning for this story.

First we hear the phrase about allowing judges discretion to “increase prison time for convicted criminals”. That sure sounds like a good thing doesn’t it, why would the Supreme Court disallow that? But what’s the alternative? Increasing prison time for acquitted defendants? (We are pretty close to that already.)

And the phrase “based on factors not considered by a jury during trial” is pretty watered down. Yet this is exactly what was at issue in the case. The intro would be better phrased:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges to increase prison time above the maximum allowable punishment for some crimes, despite a jury not convicting the defendant of the aggravating factors.

I wrote that in a hurry, and perhaps it could use some copywriting help, but it properly focuses the listener on the real issue involved in the case. 

The right to a jury trial means, essentially, the jury must convict you beyond a reasonable doubt, and no judge may increase your punishment based on “factors not considered by a jury during trial”.  Thank goodness six justices of the Supreme Court are starting to enforce that right.

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Initially optimistic about an opinion piece in the Eureka Times-Standard that started:

The war on drugs is a failure, and it is a scourge on our society.

“It” is a scourge on our society… where the word “it” modifies “war on drugs”. Well that’s certainly true. Few things have caused our society more economic and moral harm than the War on Drugs.

The writer then turns to great world leaders, to see how they handled the problem:

In 1949, when Mao Zedong took over control of Red China, he was faced with a huge problem, for a significant portion of the population was addicted to opium and this was destroying the country from within. Mao ordered that all opium dens be closed and anyone using opium be put to death.

Four years and 44 million people later, Mao didn't have an opium problem in his country or any other drug-related problem in his country. Today, China still doesn't have significant drug problem, for those who are caught with drugs are put to death immediately.

Let’s see, what’s our point here? “Chairman Mao wasn’t all bad; at least he put drug users to death”? 

I can’t help wondering though… might there be more reasonable solutions to our prison overcrowding problem?

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Sarena Straus writes about the dangers of jurors judging the demeanor of a witness and deducing truthfulness:

As a prosecutor I learned that there is no pattern to how people grieve or react to trauma. In fact, the bulk of my voir dire often focused on whether the jury would hold it against the victim if they did not cry. In my experience, most rape victims did not cry on the stand and often they had a very flat affect while testifying.

She also points out that this applies to those who are accused of crime as well:

The other thing I learned is that people do hold it against victims and defendants when they behave in a way that the juror thinks they themselves would not behave. They think, “If I was raped, I would cry,” or “If my husband died, I would not have a party.” The truth is that you never know how you will behave when you have been traumatized or you are grieving.

Good points. And defense lawyers need to be especially aware of covering this sort of “evidence” in jury selection, as Sarena points out.

If you remember the Darlie Routier case, several jurors said the strongest evidence was the videotape of the family having a birthday party and using silly string four days after the murders. They just knew they wouldn’t have done that, so they convicted her…

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Tom McKenna writes that when it comes to court appointed compensation for lawyers, the proof is in the pudding. Attorneys wouldn’t do it if they weren’t making a profit, right?

For every under-compensated case there might be ten that are adequately or even over-compensated. That is, since the vast majority of criminal cases are uncontested and only involve plea negotiations, they can be handled relatively quickly.

In many cases, an attorney can meet his client, talk to the prosecutor right before court, and negotiate a plea and/or a sentence, and spend only an hour or so of his or her time.

Well, Tom’s a prosecutor, so maybe he thinks it’s to his advantage when an attorney only talks to the client for 15 minutes, and has no time to investigate potential innocence claims, or research various legal issues that might be favorable for the defense.

But sometimes one hour is not enough time to “adequately” defend your client… court appointed attorneys should definitely be paid more.

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Too often the phrase “splitting the baby” is equated with justice. And sometimes the arbiters of justice in our modern world (judges) believe that giving something to both parties involved in a dispute is the wise and fair thing to do, after all, that’s the Wisdom of Solomon, isn’t it? Well, let’s see…

Two women having recently given birth came to King Solomon to settle an important dispute. One of the mothers had accidentally smothered her infant while sleeping, and silently replaced her dead child with the other. The mother of the living baby awoke, and realized the dead child was not hers.

They stood before the King, and argued a fairly typical “he said/she said” type situation that we see in courts today all the time. King Solomon asked for a sword, so he could cut the baby in half, and give part of the baby to each.

The real mother cried out not to cut the child in half, but to give it to the other woman. Solomon gave the baby to her, because he knew that would be the real mother’s reaction.

OK. So why is this used as an example of Solomon’s wisdom? Because he was really going to split the baby? Of course not.

The Wisdom of Solomon was in devising a plan that would reveal the truth.

Now, I’m not suggesting that judges in our modern world have the capacity to always reach the correct decision –or to use such strong arm tactics. What I’m asking of them, however, is that they make the best decision they can, with the facts and the applicable law, and stick to it.

Very often in the criminal law context, when a case is “he said/she said”, the law requires that a judge acquit a defendant because the State’s case has not been proven beyond a reasonable doubt. (It’s certainly not convicting the defendant, but “only” giving him probation, not jail – which I think some judges believe is splitting the baby.)

Giving something to both sides is not justice, nor is it following the Wisdom of Solomon.

[Post inspired by Dallas Sidebar’s use of Raphael’s famous painting which hangs in the Vatican. Good blog, and I recommend adding him to your RSS reader.]

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The recent release of IE7 and the upcoming release of Windows Vista are predicted to bring an explosion of blogging in 2007 and beyond, by exposing more folks to RSS, and I welcome it. Good blogs can provide the public with the information they need to make well informed decisions about any number of problems and issues that life throws at us, and lawyer blogs are the rule here not the exception.

With that in mind, here are examples of two other Austin attorneys who blog on criminal defense issues. (By way of complete disclosure, I should probably mention that they are also both friends of mine.)

Bill Mange comments on the New York Times piece reprinted in the Statesman about a senior pentagon official  criticizing lawyers who dare represent Guantanamo detainees. The government official intimates that CEOs should shun using law firms who choose to expend time and effort on these pro-bono cases.

Bill then makes an excellent comparison of these modern day strong arm tactics to McCarthy era blacklisting , and uses the example of Austinite John Henry Faulk’s successful libel case as a backdrop.

Bill quotes from The Jury Returns, written by Faulk’s lawyer Louis Nizer:

They pulverized him out of the entertainment industry and left him unemployed and unemployable for 6 ½ years.  They ruined his reputation and left him and his family in a state of starvation.  They made a ghastly lesson of him, so that all others who dared to challenge them in the future would be terrorized by his example.

But they had chosen the wrong man to humiliate and destroy.  In the great American tradition, which even they should have admired, Faulk rejected the role of a defeated martyr, refused to acknowledge his comatose enfeeblement, and actually attacked his tormentors.  He demanded their condemnation.  Scorning compromise, he insisted on complete judicial vindication.

Those interested in Faulk’s story should also reference Fear on Trial, either the book written by him, or the movie based on it starring George C Scott as the plaintiff’s lawyer.

Ken Gibson posts commentary on the University of Texas Police Department’s recent predilection for making more and more DWI arrests, and all over Travis County at that, rather than staying at “home” on campus and protecting the students. As he points out, they have the authority to do it:

Most folks don’t realize that UT police have jurisdiction to make arrests in any county that the University owns property. What that means is that a UT police officer basically has statewide jurisdiction.

However, Ken questions the wisdom of their new gung-ho attitude:

For every arrest, an officer will be gone from their job at the University for a minimum 8 hours and could be days, if the case goes to trial. This is time that they will be gone from their original job, protecting UT property and students. There are so many agencies that are available to make DWI arrests, and as an alumnus of UT, I find it a huge waste of University resources for these officers to make traffic stops off of campus.

I concur - and recommend adding Bill and Ken’s blogs to your RSS readers.

And to any other local Austin lawyer bloggers (criminal defense or otherwise) out there that I haven’t run across… please email me, and I’ll add your feed to mine and probably plug you on my blog.

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I have recently started a separate blog for DWI issues and questions which can now be found over at the Austin DWI Lawyer Blog.

Topics covered: Texas DWI laws, traffic stops, field sobriety tests, license suspensions and ALR hearings, occupational driver’s licenses, pretrial motions and trial issues.

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Texas prosecutors are bound by both the Federal and State Constitutions in prosecuting defendants, and sometimes the Texas Constitution provides more protections for those accused than at the Federal level.

In 1982, the U.S. Supreme Court decided Oregon v. Kennedy, which addressed what sort of prosecutorial misconduct during trial would bar the state from reprosecuting the defendant. Written by the notoriously pro-prosecution Chief Justice Rehnquist, the case laid out the federal standard: it’s not enough for the defendant to show that there was prosecutorial misconduct which made mistrial a necessity. The defendant had to show that it was the prosecutor’s intention to cause a mistrial.

Mind you, the purpose of the Double Jeopardy clause is to protect the citizen from repeated prosecutions for the same offense, and in this case, we are talking about mistrials which were caused by the prosecutor.

In 1996, in Bauder v State, the Texas Court of Criminal Appeals adopted a slightly fairer interpretation of Texas’ Double Jeopardy clause, insisting that retrial be barred where “the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial”.

“Require a mistrial” – that’s fairly egregious misconduct by the prosecutor we’re talking about – not just any old “objection sustained”. The types of things that require mistrial in Texas are pretty few and far between – for example, a prosecutor asking a witness about a prior arrest of the defendant where he had been acquitted, something that’s clearly not admissible.

Unfortunately, the Texas Court of Criminal Appeals decided to abandon the principle of stare decisis, and overruled the Bauder decision this week in a decision called Ex Parte Lewis. Basically they said it was too difficult to determine when the prosecutor had recklessly caused a mistrial, and they adopted the Oregon v. Kennedy standard instead.

Let me ask you this: if it was difficult to determine whether the prosecutor was reckless in the introduction of clearly inadmissible, unfairly prejudicial evidence against a defendant, won’t it logically now be impossible for a defendant to prove what the exact intentions of the prosecutor were who does the same thing?

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So the United States Senate, shamed by the Duke Cunningham case, voted to deny pensions for former congressman and senators convicted of:

- Bribery of public officials and witnesses (Section 201 of Title 18);
- Conspiracy to commit offense or to defraud the United States (Section 371 of Title 18);
- Perjury committed under the statues of the United States or the District of Columbia in falsely denying the commission of bribery or conspiracy; and
- Subordination of perjury committed in connection with the false denial or false testimony of another individual.

Of course, if a senator is convicted of cocaine possession, he still gets his retirement.

How does that comport with our felon disenfranchisement laws? (See Spencer Overton or Renee Crawford for more on that subject.)

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“Should I be a prosecutor or a defense attorney?”, someone googled, and for whatever unknown reason, this site popped up.

Well, I don’t know the motivation for the question, so I suppose it’s difficult to answer, but I’ll say this: there are a lot of practicing criminal defense lawyers who started by prosecuting at the county attorney or district attorney’s office, who eventually turned to criminal defense. And there are several reasons for this.

I’m being facetious by titling this “sleeping with the enemy”, because although I started out as a defense lawyer immediately after law school, I have no problem in theory or in practice with folks who want to prosecute. The job needs to be done, and someone’s got to do it. 

Personally, I knew it wasn’t for me. I went to law school in the first place to be a defense lawyer. Never wanted to do anything else. And I have too many philosophical objections to the prosecution of, say, drug offenders, and would be forced to seek county jail time or prison time for those with prior records. I wouldn’t have made a good prosecutor.

But for many, it’s a way to get experience in the courtroom almost right away – after you attend baby prosecutor school that is. Many who wish to practice criminal defense also believe that you learn a lot about how the “other side” works by being a prosecutor first.

Also, it’s frankly difficult to set up shop as a defense lawyer right after the bar results come out. Nobody knows your name, why would they hire you if you don’t have experience, and besides, there a lot of expenses to hanging out your shingle. (I was lucky – I was offered a job by a local Austin defense lawyer who had taught me at UT’s criminal defense clinic, so I didn’t face those initial business set up hurdles.)

After you’ve prosecuted for a while, when you leave the DA and start a criminal defense practice, you’ll actually receive a good deal of support from the local defense bar (if it’s anything like Austin’s). More experienced lawyers will refer you cases – yes, probably the lower paying ones, but it’s a start. And you’ll have the trial experience necessary to qualify to take court appointed clients as well.

I doubt there’s better than a 50% chance this answers the question the person googling the phrase was actually looking for, but I thought I’d give it a shot.

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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.

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The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

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From a comment left on the post of the Texas Possession of Marijuana statute: “What about HB 254, which amended this statute?”

House Bill 254 from the 79^th legislative session, originally introduced by Harold Dutton, would have reclassified possession of up to one ounce of marijuana as a Class C misdemeanor. Currently, any usable amount up to two ounces is a Class B, and HB 254 would have left possession of one to two ounces at that level (same level as first time DWI). This would have allowed police officers to confiscate the marijuana, and write someone a ticket for it, rather than arresting them and further clogging the jails.

Unfortunately, despite sailing through the Texas House Criminal Jurisprudence committee unanimously, it was never scheduled for a floor vote, and thus died almost unnoticed.

Back to the question asked, actually the answer is that the Texas marijuana statute was not amended, and therefore, remains in its current form. But I will be happy to amend the statute in the blog, as soon as the Texas legislature does…

(See Grits for Breakfast’s usual outstanding coverage on this topic here)

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Please clarify this statement: "...a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance." 

What procedure is utilized to confirm that the noise level exceeded 85, specifically as it relates to a vehicle's radio? Is this presumption made pre or post rendering of a citation? 

[Great question left by a commenter to the post on 42.01 Disorderly Conduct…Let me take a stab at answering it with a post of its own.]

From a practical standpoint, i.e., what really happens when a police officer decides to cite, or even arrest someone for a DOC Unreasonable Noise violation, I think the answer is a familiar one: often times, it is left up to the officer to decide whether or not the person is in violation of the statute.

I’m sure there are times when officers have actually measured the noise from a party, for example, using one device or another. In those cases, if the case went to trial, the prosecutor would certainly have better evidence to argue that they had proven their case beyond a reasonable doubt.

Most of the time, however, it’s probably just the officer’s testimony about his “training and experience” that would bolster the state’s case at trial.

This is a good example of the difference needed for a police officer to cite or arrest someone for an offense, and for the prosecutor to convict that person at trial. As a practical matter, most DOC tickets in Austin can probably be disposed of by way of deferred disposition, and eventual dismissal, rather than full-blown jury trial.

As far as the “prior notice from a magistrate or peace officer” part of it, this does not mean that you always get a second chance before receiving a ticket for DOC - Unreasonable Noise. The presumption simply makes it easier, again at the trial level, for the state to prove the defendant was guilty. Again, in Austin, when it comes to loud parties, it has been my experience that the police will usually issue a warning first, and then come back and check on the noise level from the party later.

As far as car radio noise levels are concerned, my guess is that since an officer knows he’s unlikely to see the person in the car again anytime soon, and certainly won’t have a fixed address to come back and check on the radio, that probably increases the chances that he will issue the citation, even though there has been no prior notice. Of course, they always have discretion to “just issue a warning”.

On that note, let me end this discussion for now with a quote from my letter to the UT Daily Texan Firing Line a few months ago on a similar subject:

Police have great discretion as to what to charge someone with, and even whether to charge them with anything at all. Very often the difference between being issued a minor Class C Noise Ordinance violation, instead of being arrested for a Class A Misdemeanor or even a felony, is your attitude when you talk to and interact with the police.

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Jordan Smith lists his Top Ten 2006 Reefer Madness stories in this week’s Austin Chronicle in Top Ten Joints.

Alex Coolman lists his ideas on winnable issues for drug policy reform in 2007. (“thehim” adds his commentary, and more ideas in his Drug War Roundup post.)

Grits for Breakfast writes a retrospective on the Top Ten Texas Criminal Justice Stories of 2006.

Evan Schaeffer recaps 2006 in a four part highlights series at Legal Underground.

Robert Ambrogi scours the web for Worst of 2006 lists: including Christopher Taylor’s Legal Outrage.

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From the Statesman’s online Blotter, DPS Reminder: Update Your Driver’s License Address:

The DPS wants to remind you to make one more New Year’s resolution - update the address on your driver license. Keeping a current address on your license provides DPS with the ability to communicate important information to you regarding your driver license. Plus, updating your driver license address is important because it’s the law.

That’s true; it’s actually a Class C misdemeanor in Texas to drive longer than 30 days without updating your address with DPS. But the article goes on to explain a better reason, perhaps, as well:

Another reason it is important for you to keep your address current is so that DPS can notify you if your license is suspended or revoked. If your address is not current, you may not receive this notification. If you are stopped for any reason and found to be driving on a suspended license, you can be arrested.

Licenses are often suspended or revoked for driving with no insurance, driving while intoxicated, for failing to appear in court for a citation or for failure to comply with the requirements of the Driver Responsibility Program.

The Department of Public Safety sends folks a notice of cancellation and/or suspension to the address they currently have on file – after all, where else could they send it? But very often these notices aren’t received because the person never updated their address with DPS.

I’ve never done a scientific study of the problem, nor have I kept an Excel spreadsheet of all my Austin DWLS clients, and the various reasons they were suspended. But my guess is that at least half of my clients who come to see me for a driving while license suspended arrest didn’t know that their license was suspended.

Of course, that usually means I have a pretty good defense to put forward on behalf of my client, but wouldn’t you rather not be arrested in the first place?

[Update: here's a printable change of address form to mail in to DPS, and here's the place to change your address online.]

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