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

From an article in Science Daily detailing a University of Virginia study published in Psychonomic Bulletin and Review titled “I misremember it well: Why older adults are unreliable eyewitnesses”:

Dodson and U.Va. graduate student Lacy Krueger studied “suggestibility errors,” instances where people come to believe that a particular event occurred, when in fact, the event was merely suggested to them and did not actually occur.

They found through a series of experiments that when younger and older adults were matched on their overall memory for experienced events, both groups showed comparable rates of suggestibility errors in which they claimed to have seen events in a video that had been suggested in a subsequent questionnaire.

Both groups were also asked to rate how certain they were about their memories. From the abstract of the article itself:

However, older adults were—alarmingly—most likely to commit suggestibility errors when they were most confident about the correctness of their response.

By contrast, their younger, accuracy-matched counterparts were most likely to commit these errors when they were uncertain about the accuracy of their response.

This study is, therefore, perhaps less instructive about the comparable reliability of older vs. younger adults when it comes to eyewitness testimony. When the researchers compared between age groups but within the same overall accuracy range, they found that older witnesses were more certain of their wrong memories than their younger counterparts.

It’s the witness’ conclusion about how certain they were that is most disturbing here. In older adults, certainty and accuracy were inversely correlated.

From a criminal defense lawyer’s perspective there’s nothing more difficult to deal with, than a witness who is sincerely, but wrongfully accusing someone.

[Source for post: Idealawg]

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I am pleased to announce that I have been selected to host Blawg Review on July 16^th, a short 20 weeks from now.

Blawg Review is hosted by a different law blogger every week, and is a roundup of some of the best lawyer blog posts on the internet from the previous week. You can find out how to submit your posts for consideration to the next host of Blawg Review here. I would encourage lawyers who are new (or not) to the “legal blogosphere” to participate.

The point of “law blogging”, from my perspective at least, is to share potentially valuable information with those seeking legal help online. Lawyers who blog regularly provide exactly that service, and Blawg Review acts as a conduit for that information.

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The Adventures of Steanso brought my attention to a bill filed by Representative Jerry Madden of Plano that would inject a modicum of reason into our current controlled substance probation laws. 

The biggest obvious change would be to shorten the maximum length of probation for 3rd degree felony drug offenses from ten years to five. [See also Scott Henson’s continuing and excellent coverage on the subject of why shortening probation terms in Texas would be a good thing: start here and here.]

But there are other important changes tucked in there too, that need to be implemented. For example, it would require Texas judges to give credit to revoked probationers for the time they spent successfully completing SAFPF (the underlined portions are the proposed changes; they have not taken effect):

SECTION 1.  Section 2(a), Article 42.03, Code of Criminal Procedure, is amended to read as follows:

(a)  In all criminal cases the judge of the court in which the defendant is [was] convicted shall give the defendant credit on the defendant's [his] sentence for the time that the defendant has spent…

(2) in a substance abuse treatment facility operated by the Texas Department of Criminal Justice under Section 493.009, Government Code, as a condition of deferred adjudication community supervision granted in the case if the defendant successfully completes the treatment program at that facility.

Government Code 493.009 refers to SAFPF (pronounced by judges, prosecutors, defense lawyers and defendants alike as “SAFE-P”), which is a six to nine month therapeutic community program served in TDCJ (prison) followed by three months at a residential facility, and more outpatient treatment after that. 

Basically, it can mean being locked up for a year.

Now here’s where it gets interesting. Defendants in Texas who are offered probation on a 3rd degree Possession of Controlled Substance charge might now be offered up to 10 years of probation with SAFPF as a condition of probation. Or they might get an alternate recommendation of 3 or 4 years in prison, if they chose to turn down probation.  Anywhere between 2 to 10 "to do"(as we say).

Since under current Texas law, the defendant will not get credit for the year he spent completing the SAFPF program, if he is later revoked on probation, he may decide “just to take the prison time” instead. For someone who was offered the minimum of two years TDC, factoring in the possibility of parole, it might actually mean the defendant spends less time locked up by turning down probation.

That’s right: there are currently many scenarios where defendants turn down probation if SAFPF is a condition, because they calculate that they may parole more quickly if they take a “low” prison sentence instead.

I’m sure most practicing criminal defense attorneys in Austin have had these discussions with their clients.

From a public policy standpoint, it’s idiotic. We ought to be encouraging drug offenders to seek treatment; not giving them common sense reasons why they ought to use tax payer money to be incarcerated.  And not crediting them with the time they've done towards potential future revocations is both unfair to them, and overly burdensome on the taxpayer.

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The Federal Sentencing Guidelines themselves – and how they can and should be interpreted and applied – are up for debate in the U.S. Supreme Court tomorrow morning, in two cases: Rita v. United States and Claiborne v. United States.

I’ll be posting more on this after oral argument, but here are some reasons for hope among those who believe that ridiculously long penitentiary sentences for drug offenses (inter alia) are morally, fiscally and constitutionally wrong:

(1) After deciding Booker, the Supreme Court has focused more on the first part of its opinion than the second. 

Translation? The first part of Booker declared the portion of the guidelines that forced judges to increase mandatory minimum sentences based on facts not found by a jury (or admitted by the defendant) to be unconstitutional.

However, the second part of the opinion attempted to save the Guidelines from the dustbin of unconstitutionality by declaring them “advisory”, not mandatory.

The problem has been two fold: (a) no one knows what this really means and (b) as a practical matter, defendants have not gotten any benefit of the doubt. If the judge wants to go above the guidelines, appellate courts have mostly been affirming. However, below guidelines sentences have almost uniformly been reversed. That’s a step in the wrong direction.

If the questions and answers focus more on the unconstitutionality of the Guidelines, rather than on how to remedy them, we may be in for a treat.

(2) Chief Justice Roberts came down on the right side of Cunningham v. California; his predecessor Rehnquist surely would not have.  That lets us know that Roberts believes in the “right to a jury trial” part of the whole Apprendi/Blakely/Booker line of cases.

We’ll know more after oral argument. Stay tuned…

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There’s an interesting conversation going on over at Sarena Straus’ Prosecutor Post-Script where in a series of posts and comments the author and readers discuss various issues in prosecutorial ethics.

In “Who decides when to prosecute?” she discusses the considerations involved when a prosecutor “overrules” the wishes of a complainant in an assault case. Sarena points out this comes in two forms: victims unhappy with a plea agreement that is too lenient, and ones that don’t want to prosecute the case at all.

The first post sparks a question from a reader: “"It's interesting to see the thought process behind when to prosecute. What sort of plea deal would you make with someone who was unlikely to be convicted at trial?” Sarena answers the question in part by posing a “typical hypothetical offered by DA's offices when interviewing prospective ADAs”:

Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant's guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case.

The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty.

Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

Since I never interviewed with a County or District Attorney’s Office, hypotheticals like that take me back to my law school days…let me give it a shot.

There’s really two separate questions being asked here (which is what makes it interesting): (1) As a prosecutor, are you required by Brady v. Maryland to disclose the unavailability of witnesses to the defense attorney?  (2) If not, should you anyway?

My off the cuff guess (read: I didn’t bother to research it this morning while writing this post) is that the caselaw interpreting Brady doesn’t require the prosecutor to disclose that information. If anyone out there knows of caselaw to the contrary, please contact me, because it would somewhat put the issue to rest.

(I’d also like to think that the best defense lawyers out there do thorough investigations, including, of course, interviewing all witnesses…but it sounds like the witness just died, so I can see the attorney not knowing.)

The second question therefore becomes “Under what circumstances should you disclose this information?” In a lengthy comment WindyPundit suggests:

There's a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.

True, but not all prosecutors are concerned about their reputations in the criminal defense bar. My experience tells me that the defense lawyer needs to worry about his own reputation for truthfulness and honesty, more than a prosecutor need worry about his.

Sarena promises to give her own answer soon, but states that she thinks most comments so far are coming from the defense perspective, and would like other prosecutors to weigh in first…(that means you too Steanso)

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District 49 (which includes parts of Austin, Texas) State Representative Elliot Naishtat filed a bill yesterday “relating to the use of medical marijuana”. The bill would add an affirmative defense to possession of marijuana charges: proof of a licensed doctor’s prescription:

SECTION 1.  Section 481.121, Health and Safety Code, is amended by adding Subsections (c) and (d) to read as follows:

(c)  It is an affirmative defense to prosecution under Subsection (a) for the possession of marihuana that the person possessed the marihuana as a patient of a physician licensed to practice medicine in this state pursuant to the recommendation of that physician for the amelioration of the symptoms or effects of a bona fide medical condition.

Further, it gives civil and criminal protections to doctors who discuss the potential benefits of marijuana with patients:

(d) An agency, including a law enforcement agency, of this state or a political subdivision of this state may not initiate an administrative, civil, or criminal investigation into a physician licensed to practice medicine in this state on the ground that the physician discussed marihuana as a treatment option with a patient of the physician or made a written or oral statement that, in the physician's opinion, the potential benefits of marihuana would likely outweigh the health risks for a particular patient.

Finally it adds similar protections for medical doctors in the Occupations Code.

It will be interesting to see how far along this bill gets…

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Barry Green, a Wise County criminal defense lawyer recently left a comment on my recent post about deferred prosecution:

Isn't "deferred prosecution" the same thing as "pretrial diversion" or, technically, a "pretrial intervention program" under Article 102.012 of the Code of Criminal Procedure? I was just curious since you said it "was not available by statute."

He asks a good question, and I could have been more precise. Actually, in Travis County, we have a PreTrial Diversion program as well as the occasional opportunity for dismissal by way of deferred prosecution. So in Austin, they are two different things.

PreTrial Diversion programs are indeed authorized and covered by statutes, including among others CCP Article 102.012 and Government Code Section 76.011. And limits on administrative fees for these programs are covered by Government Code 76.015.

The basic difference between the two (at least, in Travis County) is that one of them – PreTrial Diversion – is run by the Probation Department. It is not, however, a reporting probation – just a program run by the department.

Deferred Prosecution is similar, in that it is an agreement between the defendant and prosecutor to dismiss the case if certain conditions are met, but it has nothing to do with the Probation or Community Supervision Department.

I think most Texas Counties probably don’t have both options. Some probably have neither.

Another distinction between the two, albeit a non-legal one, is the reasons for which they are potentially granted in negotiations. In Austin, entry into the PreTrial Diversion program is sometimes granted for first time offenses, most often Theft, Possession of Marijuana and several other misdemeanor charges. Assault, whether Family Violence or not, and DWI are not even considered for PreTrial Diversion.

The reason it is given occasionally is for equitable reasons(i.e. the conviction itself is overly punitive), not substantive ones(i.e., my client didn’t do it, or the State may have difficulty proving my client guilty). For example, denial of guilt in a

Deferred Prosecutions are sometimes offered for equitable reasons, but in my experience in Austin, it’s more often for substantive problems with the State’s case. These are, perhaps, even less formal agreements, at least in the sense that the Probation Department has nothing to do with them. And they are completely non-statutory.

For some more interesting legal reading on the subject of PreTrial Diversion programs, also see Attorney General Greg Abbott’s response to Guadalupe County Auditor Kristen Klein’s inquiry about assessing fees for these programs. 

One last note: similar to my comments about some Municipal Court prosecutors referring to deferred disposition as “deferred adjudication”, the semantic distinctions above hold true in Austin and Travis County, but not necessarily in other jurisdictions. The law, of course, is the same, but my point is that different prosecuting/criminal defense cultures refer to similar programs with different terms, and different programs with similar terms.

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From Scientific American today we learn of a study published in the journal Neurology that marijuana helped HIV patients reduce chronic foot pain.

A quick aside here, before commenting on the Drug Czar’s knee-jerk uninformed reaction to this…

HIV-Associated sensory neuropathy is a serious condition affecting almost one third of HIV/AIDS patients. According to Medscape Today, it is characterized by complaints of bizarre burning feelings, lancinating pains, and an increased perception of pain including “pain from stimuli which are not normally painful or noxious”.

I’m neither a doctor nor an HIV or AIDS patient, and frankly I had to look up the meaning of “lancinating”, but I think we can all agree it sounds terrible. This is real suffering, and thank goodness there are scientists pouring their efforts into helping those afflicted.

Now the scientific method demands that to properly study a particular drug’s effect on something, you must take a random sample of people, include a placebo, and measure to see whether there is a statistically significant difference between the drug and the placebo. If there is, you know you’re on to something.

Much of modern medicine is actually based on epidemiology,which studies patterns in populations of people after the fact, and tries to derive causes based on the patients’ histories. That’s all very well, and many times it’s the only available method for studying disease, but in the end, it doesn’t prove causation. It only gives us some good starting points for guesses.

The medical doctors and researchers in the study, however, randomly assigned half of the group to smoke cannabis (at 3.5% THC Content), and half to smoke the same cigarettes with the THC content extracted. Just over half of the cannabis group reported significant pain reduction, as opposed to less than a quarter of the placebo group.

So, can we get the office of the Drug Czar to weigh in on this for us?

David Murray, the White House Office of National Drug Control Policy's chief scientist, said, "Unfortunately, this particular study is not terribly convincing," citing what he saw as methodological problems.

"Unfortunately, it will lead many people into a false hope that street marijuana is somehow going to be the thing I can use that will make me feel better and won't jeopardize my health. Now that is a fraud and a dangerous one," he told Reuters.

So a randomized placebo-controlled experiment is flawed…says the folks who are still trying to sell you on the logical fallacy known as the “Gateway Theory”.

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According to the Jacksonville Daily News, North Carolina State Rep. Tim Moore has filed a piece of proposed legislation making it a felony to have any compartment, space or box in a vehicle for the purpose of hiding illegal contraband.

The need for this new tool in the War on Drug Users isn’t immediately apparent, until you consider this:

Moore says he filed the bill at the request of the Cleveland County Sheriff's Office, whose officers lament that sometimes they pull over vehicles after drugs have been delivered. That is, the secret compartment is empty.

Folks… people with secret empty drug compartments have been getting away with this for years. 

If an officer pulls you over, searches your glove box, and knows that you had used it for storing drugs…should you get some sort of a free pass just because you sneakily emptied it out before he had the opportunity to rifle through your belongings?

Were you even aware that drug users caught without any contraband are routinely set free? Even when the police know what they are really up to?

Predictably, the usual suspects are up in arms about this. It’s mostly the typical mumbo jumbo about “How would the police know if there weren’t any evidence” and “Gee – I have a glove box in my car…Couldn’t this sort of thing apply to me, even if I actually weren’t a drug user/dealer?”

But I’d like to ask those opposed one simple question: If we can’t trust police officers to use a little discretion, and only arrest and punish the right folks, what would that say about our system of justice?

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Deferred Prosecution Agreements are different than both deferred adjudications, and deferred dispositions. The latter two are covered by statute. Deferred Prosecution, however, is not.

Deferred Prosecutions are basically informal agreements between the defense lawyer, the defendant, and the prosecutor to dismiss a case up front, that is, in advance of the accused agreeing to some concessions. I call it “informal”, not to minimize the seriousness of the agreement, but to point out that it’s not statutory, and the paperwork is not filed with the Clerk.

Because it is not available by statute, not all County prosecutors even enter into them. Fortunately, those accused of Class A and Class B misdemeanor crimes in Austin are potentially eligible, because the Travis County County Attorney’s Office will consider them in some cases.

In many ways, Deferred Prosecutions on Class A and B misdemeanors are similar to deferred dispositions on Class C misdemeanors. There is no formal probation where the defendant reports monthly – instead, he is simply on “his own probation”. The terms negotiated in these cases are usually stiffer than those on a Class C traffic ticket level offense.

Successfully completed Deferred Prosecutions are eligible for complete expunctions, unlike their cousins Deferred Adjudication. This is because the element of formal reporting probation in Deferred Adjudication makes expunction not possible. Best case there is for a Motion for Non Disclosure. (I know, it gets confusing, doesn’t it?)

The flip side of Deferred Prosecution agreements however, is that if the defendant does not do what he is supposed to (could be community service, a class, or simply staying out of trouble), the County Attorney’s Office will refile the initial charges.

As for felonies, the Travis County District Attorney’s Office only considers these agreements in the rarest of cases.

[See also, the difference between deferred disposition and deferred adjudication in Texas.]

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There’s a lot of confusion about the terms “deferred disposition” and “deferred adjudication” in Texas.

Deferred adjudication is a type of actual probation, for a Class B misdemeanor or higher charge, where the judge says (in legalese), “Based on your plea of No Contest or Guilty, I could find you guilty, but I’m not going to. I’m going to place you on probation, and if you jump through the hoops of probation, at the end of the case you will never be found guilty of the charge.”

To defer – to put off, or postpone. To adjudicate – in the criminal context it means to find you guilty. So when the judge places a defendant on deferred adjudication, he is postponing finding the person guilty, and will never find them guilty, if they successfully complete the terms of probation.

In Texas, that means a real, formal probation with a monthly visit to a probation officer, minimum community service hours, urinalysis for drugs and alcohol, fines, court costs and $62 per month probation fees.

Again, the major distinction here is that this is only for Class B and Class A misdemeanors, and felony charges in Texas. It’s not for Class C, that is, traffic ticket level offenses.

Deferred adjudications are not expungeable, but most are eligible for Motions of Non-Disclosure.

Deferred disposition is only for Class C charges, and is not a formal reporting probation. The theory is the same – that is, if you pay a (smaller) fine, usually take a class, and stay out of trouble, at the end of the deferral period you are not convicted of the offense. 

There is no probation officer, or monthly meeting. I suppose you could say that you are on your own probation, but that’s it. Some clerk will pull your file at the end of the term, check to see that monies are paid, certificates for classes are turned in, and run a criminal background check to see that you did indeed stay out of trouble. Then the case is dismissed.

For Class C Assaults, Theft, Public Intoxication, Minor in Possession and similar non-traffic offenses, this is the same as agreeing to take defensive driving, pay a small fine, and not pick up any more traffic tickets to get a speeding ticket dismissed.

In a successfully completed deferred disposition, you are specifically by statute entitled to seek an expunction, not just the less complete sealing of records.

Part of this confusion is perpetuated by Class C prosecutors, and even some Municipal Court judges, who continually refer to this process as “deferred adjudication”. In fact, the two are very different.

[See also, Deferred Prosecution Agreements.]

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As a lawyer, one of the advantages to having a blog is that I can more effectively communicate my thoughts and ideas about criminal defense, and how I go about it on a daily basis to potential clients, than by just having a “static” website.

This is primarily because everything written on this blog is written by me – or, if I’m commenting on someone else’s ideas, they are, of course, properly attributed, with a backlink to the original writer’s post.

Most static websites for criminal defense lawyers are templates that various web site companies sell, where most, if not everything, is prewritten for the attorney, except for biographical information, such as schooling, years in practice, and geographic location.

One of the main buzzwords you see on even the best criminal defense lawyer websites is the phrase “aggressive defense”. I guess this either sounds good, or more likely, whoever wrote the website for the lawyer thinks it sounds good. Either way, I don’t call myself an aggressive lawyer.

On the contrary, I go to great lengths to be courteous and well mannered. In the initial negotiations stage of a case, the prosecutor has a great deal of leeway to potentially offer a better than average deal (which is what all of my clients are seeking). Why would they bend a little if the lawyer in a particular case was acting aggressively?

Prosecutors actually have the upper hand in most cases. Sometimes it feels like an uphill battle when the State has both the facts and the law on their side. But a good defense lawyer will calmly and politely explain the equitable facts that benefit his client. Maybe he’s never been arrested before, or the usual range of punishment will put him out of a job.

Or maybe it’s a borderline case. Take a first offense DWI arrest with no breath test, where the defendant admits to drinking alcohol, and does fairly well, but not perfectly on the standardized field sobriety tests. “Aggressively” coming in and “demanding” a dismissal on the first meeting with the prosecutor is probably going to produce the opposite of the intended result. It may in fact make the State dig their heels in, and refuse to ever negotiate the case reasonably.

Going to trial in the above example would, of course, still be an option, but many clients prefer a guaranteed and negotiated reduction of charges instead of a jury.

On the other hand, I am a very competitive person, and want the best outcome for my client. Not only is that my job description – to get the possible deal available, and otherwise take the case to trial – but it’s my personality. I enjoy games, and game theory, and believe me, I hate to lose.

Perhaps that’s what criminal defense attorneys really mean when they call themselves “aggressive”. Unfortunately, the ones that truly are aggressive are the ones that give lawyering a bad name. And, having seen some of them attempt negotiations, I can tell you this: their clients don’t often benefit from it either.

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Texas probationers are sometimes told by the lawyer representing them on an original charge, “Don’t worry about how long this probation is, you can apply for early release”. (I know this, because I’ve heard it from so many folks, it’s apparently a common thing some lawyers tell their clients.)

Now, it’s true that you can apply for early release as soon as one third of your probation period is up. The statute covering early discharge itself (Article 42.12 Section 20 Code of Criminal Procedure, “Reduction or Termination of Community Supervision”) is contained within the lengthy probation statute.

The question most probationers want to know, however, is “Will the judge in my case let me off early, and if so, when?”, or “What do I need to do to actually be discharged from probation?”

Despite some potentially confusing language in the statute, let’s start with this: early release from probation is entirely discretionary, not mandatory. There’s no way to force the judge to grant an early discharge.  Even if you have completed all the terms, if the judge doesn't want to let you out of the probation term, you'll have to finish it.

Second, while the law allows for petitioning the court for release 1/3^rd of the way through, most judges won’t grant a discharge that early. In Travis County, I’d ballpark the necessary length at somewhere between half and two thirds of the original probation term imposed before most judges will seriously consider letting you off early. Many times you hear a judge ask “You signed up for this long of a probation when you plead guilty. Why should I let you off without you completing your end of the bargain?”

Third, all conditions of probation (other than the length) must have been met: community service hours completed, classes finished, AA’s attended, monies paid, etc. As far as fees, fines, restitution and court costs goes, the only possible exception to that is some judges don’t require you to pay out the $62/month probation fees into the future. Then again, some do.

Finally, convictions for DWI, Sex Offenses, and State Jail Felonies are not eligible for early release.

No one should make a decision to accept a plea bargain in a case, on the basis of believing that they can automatically be granted an early release at some future time during the probationary period. Of course, it may be that X years of probation is truly the best deal that they can get, given the facts and circumstances of their case.

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There is only one “official” definition of intoxication for Texas Public Intoxication charges: A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Although the statute is listed in the DWI chapter of the Penal Code, neither of the definitions of intoxication for DWI apply in Public Intoxication or PI charges.

But the definition is fairly vague, isn’t it? I’m not saying there aren’t folks who are so smashed on 6^th Street here in Austin that fit that definition. There probably are.

However, most folks arrested for PI probably fit what I call the alternate, non-legislated, non-statutory definition: frankly, they pissed off the cop.

Some officers would probably admit that they know a Public intoxication charge won’t stick in the long run, or that the defendant can fairly easily sign up for a deferred disposition, take an alcohol class, stay out of trouble for 6 months and get it dismissed.

Classic case of “You can beat the rap, but you can’t beat the ride”. My two cents worth? Even though you’re not actually a danger to yourself or others, if you’ve been drinking, especially in Downtown Austin, and a police officer comes up and starts asking you questions, be very polite.

You might eventually beat that public intoxication arrest, but wouldn’t you rather have taken a cab home than spend the night in the Travis County Jail?

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Hines Ranc & Holub is a criminal defense law firm here in Travis County. I’ve known these guys for many years, and am pleased to be moving into their building at 1307 Nueces, Austin, Texas 78701. 

What’s the advantage of having three board certified attorneys who are all former prosecutors?  It’s the advantage of experience.  With Hines, Ranc and Holub you’re defended not by a single lawyer, but by an entire team of criminal defense specialists who can work together to develop a winning strategy for your case.

Their practice areas include the defense of DWI, drug crimes, assault family violence, white collar crimes, sex crimes, theft crimes and violent crimes in both State and Federal court. Bill Hines also teaches Trial Advocacy at the University of Texas Law School.

One of the main reasons I decided to office in the same building with them is because I respect them as lawyers, and look forward to being able to bounce ideas off of them.

For more information, check out their website.

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