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 Bob Herbert’s New York Times Op-Ed piece today “Arrested While Grieving”:

No one is paying much attention, but parts of New York City are like a police state for young men, women and children who happen to be black or Hispanic. They are routinely stopped, searched, harassed, intimidated, humiliated and, in many cases, arrested for no good reason…

Herbert, whose excellent and persistent coverage of the Tulia cases uncovered that scandal, goes on to report about black teenagers, excused from school to attend the wake of a murdered friend, who were suddenly arrested for no reason. Or, wait, I guess there was a reason…

Many of the kids were wearing white T-shirts with a picture of the dead teenager and the letters “R.I.P.” on them. The cops cited the T-shirts as evidence of gang membership.

No need to comment further really. You either get it, or you don't.  If it weren’t so outrageous, the whole thing would be laughable.

Same Topic, Other Bloggers: Donkey O.D., PREA Prez, Simple Justice.

[No link to the Op-Ed given here, because, unfortunately, the NYT makes this a pay option only.]

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Coming in the mail from Amazon is my new copy of “Lies, Damned Lies and Drug War Statistics,” the book by Matthew Robinson and Renee Scherlen. I’ve actually meant to order it for awhile now, but just remembered to do it when I saw this about a book forum luncheon at the Cato Institute:

Each year the Office of National Drug Control Policy publishes a report called The National Drug Control Strategy. Those reports are supposed to provide information about trends in drug use and assess federal programs that are aimed at reducing the supply of and demand for illegal drugs. Policymakers rely on that information in making budget decisions and holding executive branch agencies accountable.

Matthew B. Robinson and Renee G. Scherlen conducted an independent review of those reports, and their research found numerous instances in which information was distorted to justify continuing the war on drugs. Join us for a discussion of the use and abuse of statistics and of policy recommendations for changing the federal approach to problems associated with drug use.

The Cato Institute program will feature the authors, as well as comments by Dr. David Murray, Senior Policy Analyst, Office of National Drug Control Policy.  I'll admit I'm extra curious as to what his reactions will be.

Most of us (who can’t make it to Washington) can watch the event live in RealVideo next Thursday, May 31, at Noon Eastern. Mark your calendars, and click here for the RealVideo link.

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A few kind folks have linked to my little Criminal Law Blog survey in the past few days, and I’m still getting some answers dribbling in. I’m going to cut it off sometime Friday night, do the calculations and post results over the weekend.

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Four Austin Police officers in the news recently for improper use of Department computers received their punishment last Friday, ranging from 5 to 45 days leave without pay and in some cases a demotion.

The allegations involved looking at porn or “other inappropriate material” on the internet or through email, and that frankly sounds like something that should be punished, and harshly at that. But let’s delve a little further and take a look at the cases individually.

According to the Austin American Statesman article:

In the most serious case, Detective Troy Brown was suspended for 45 days and demoted to the rank of officer for accessing prohibited, sexually explicit Web sites and e-mail accounts with his city computer... Brown accessed the sites between November and March…

Sgt. Troy Officer received a 30-day suspension for viewing pornographic Web sites around Christmas, when Stribling said "nothing was going on at the office, he had a lot of downtime, and he ended up doing something wrong." Officer agreed to remove his name from a list of candidates to be promoted to lieutenant.

Assuming that the newspaper reports of the offenses were at least somewhat accurate, the punishment probably seems to fit the crime. But how about the other two officers?

According to Jordan Smith’s column in this week’s Austin Chronicle “Porn Punishment at APD”:

Slater… was demoted and given time off for spending nine seconds looking at a personal ad on Craigslist. Whether the ad was racy or sexually explicit is in dispute, since it’s no longer posted and the city was unable to come up with it…

The case against Hawkins is even more questionable. According to the disciplinary memo…Hawkins received a “sexually explicit email” with “pornographic images” that were sent to his work email, which Hawkins then forwarded to his personal, home email… he never looked at it at work. 

Rather, he opened it, realized what it was and immediately closed the email, sent it to his home email, and replied to the sender, saying that no emails like that should ever be sent to a city computer…The email in question did not contain anything illegal.

Slater was suspended without pay for 45 days… for 9 seconds worth of looking at an ad on Craigslist? And we don’t even know what kind of ad?

As for the last officer, I know I’ve clicked on emails and been surprised to find out what the content is. 

Yes, I use spam filtering, and yes, most of the time I can tell when an email is some form of spam, whether it’s porn, selling Viagra, hyping some bogus stock, or a letter from a former Nigerian prince who desperately needs my help to deposit $3.5 million in my bank account.

But, even spam filters and avoiding emails based on the subject line doesn’t make me immune to getting tricked. Part of the problem is that I have at times accidentally not opened legitimate emails, because my ‘personal’ spam filter overlooked it.

The overly harsh punishments meted out to the second two officers were most likely affected by the misdeeds of the first two. From a PR standpoint, APD didn’t want to look like it was allowing its employees to surf the internet for inappropriate or sexual content. So it punishes anyone and everyone who might have done ‘something wrong,’ to avoid looking like it coddles the serious offenders.

Unfortunately, this is also how our current criminal justice system works as well (this case not being criminal, of course). Legislators envision the worst possible scenario that any particular offense or crime could be, and then make that the minimum punishment…just to be sure.

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The statute of limitations does not preclude the State from prosecuting an individual just because “X number of years” has passed since the date of the alleged offense. I start with that, because as a practicing criminal defense attorney, I find that people think that’s what it means.

The statute of limitations merely requires the State to file a formal charging instrument against the defendant within a certain time period. In Texas, the statute is 2 years for all misdemeanors, at least 3 years for felonies and sometimes more. (also see: more info about specific time periods for the Texas statute of limitations.)

Let’s use an assault arrest in Austin, Texas as an example.

If it’s a misdemeanor assault, the statute of limitations is 2 years. The Travis County County Attorney’s Office prosecutes misdemeanors, so they have two years to file a complaint and information at the Travis County Clerk’s office charging you with misdemeanor assault.

A complaint is a sworn document in which someone states under oath that they have “good reason to believe” that you committed the offense of misdemeanor assault. The information is the formal charging instrument, and for all intents and purposes is usually an almost verbatim copy of the complaint.

Once these documents are filed, the statute of limitations is “tolled”; that is, it stops running.

So, hypothetically speaking, if the prosecutor files the complaint and information in the 23^rd month after the assault is alleged to haave happened, they are not required to take your case to trial in the next month. (If only it were so, because that would almost always be a practical impossibility for them.)

The case would then run its normal course, with all the resets and continuances for discovery that happen in any criminal case.

If it’s a felony assault, the statute of limitations is 3 years. The Travis County District Attorney’s Office handles felonies, so they have 3 years to take your case to a Grand Jury for indictment. Again, if you were indicted in the 35^th month, the statute stops running, and the case could drag on well past 3 years after the date of offense.

Now, as a practical matter, this doesn’t happen very often. But, again, as long as the state filed the charging instrument, either an ‘information’ for a misdemeanor, or got a Grand Jury to return an indictment, the statute of limitations no longer applies.

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For a jury to convict a defendant of possession of marijuana or any controlled substance, the State must prove more than the defendant’s mere presence near the contraband.

As a criminal defense attorney, however, you can’t just take this concept for granted. After all, he wouldn’t be your client in the first place, if he hadn’t been…

• driving the car where the marijuana was found
• in the house where the cocaine was found
• carrying the computer with the porn files…(for example)
• etc., etc.

What this cries out for, is a good common sense example that every venire member can understand immediately. And here’s one I learned a long time ago (I don’t remember from whom, or I’d give them credit).

Pick a potential juror and tell him a story. Start with the example of someone who is guilty. Then tweak the facts until you come up with a not guilty.

Attorney: Mr. Juror, let’s say that your neighbor decides to take some marijuana over to a friend’s house. He puts a baggie of marijuana on the passenger seat of the car, and drives to his friend’s house. On the way, he gets stopped for a traffic violation, and admits to the officer that the marijuana is his.

Now, even though he was never seen in physical possession of the marijuana, you would agree that if the State proved everything I just said to you, that would probably end up with a guilty verdict?

Juror: Yes, I suppose so.

Attorney: OK, good, we agree. Now let’s say his friend lives in another State, and he decides to mail him the marijuana. Same facts, but this time he places the marijuana in a plain unmarked package, and takes it to FedEx to mail it. He gets caught before he gets there, and once again the State brings you good solid evidence of everything I just told you. Still guilty, right?

Juror: Yes, still guilty.

Attorney: OK. Let’s say this time he actually mails the marijuana. The FedEx employee takes the box from the delivery van to the front door of his friend. The police swarm in (for whatever reason) and stop the FedEx carrier before he can get to the door. The FedEx driver was actually in physical possession of the dope. Why is he not guilty?

Juror: Well, he didn’t have any way of knowing what was in the box…

Obviously, I can’t predict the actual answers here, and if the guy you picked out doesn’t come up with it, move down the row until someone does (they always do).

Then reinforce that answer by saying, “Not only did he not have any way of knowing, but the State didn’t bring any evidence to show that he knew what was in the package”.

Won’t necessarily do you much good when your client has it on his person, but can be great material to get potential jurors talking when your client was arrested in a vehicle, or even in his own home.

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When a defense lawyer tries a criminal possession case, the jury must be asked about the “intentional and knowing” element of a possession charge during voir dire.

The reason? Unknowingly possessing contraband is not criminal.

Dan Browning of the Minneapolis Star-Tribune wrote an article today about the acquittal of a computer consultant on possession of child pornography charges in Federal Court. (Hat Tip: CyberCrime)

There was never a dispute about whether the defendant possessed the computer, nor whether images of child pornography were found on the computer. The defense, however, hammered on the government’s inability to prove that the defendant knew that the images were on the computer, or intended them to be there:

Sarah Snider, the forewoman of the jury… said jurors examined the computer logs and discovered that Furukawa had downloaded thousands of files. The child porn files were "few and far between," she said. "It's our belief he wasn't looking for it."

DeAnn Roy, another juror, said no one disputed that the images were illegal child porn. "We just didn't see proof that he knew, or that he willingly had that on his computer."

Good job done here by the defense lawyer Daniel Gerdts in properly focusing the jury on holding the government to its burden. Too often jurors believe that simply possessing something is a crime, without forcing the State to prove that the defendant knew he was in possession of something illegal.

[Also see my thoughts on Jury Selection and the Unwitting Possession Defense.]

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My wife is a fan of what I call “Forensic Files, etc.” – meaning all of those true crime TV shows that have popped up over the last 5 to 10 years or so. (Despite being a criminal defense lawyer, I can barely stand to watch those shows myself.)

I walked by the living room as she was watching the end of last night’s Dateline NBC “Scenes from a Murder” episode about an ultimately still unsolved investigation of a young woman’s death.

I’ll quote the part that caught my ear later in the post, but for starters, here’s my wife’s recap of the events.

Young woman found dead. Years of investigation with multiple investigators lead to suspects including: the fraternity boyfriend, the neighbor (eventually incarcerated for a different violent crime), and even the brother, father and mother are accused of complicity at one point, albeit by a disgruntled out of town police officer who became upset when he was no longer being considered for an acting/directing role in a possible movie.

Bottom line: unsolved violent crime. Unlikely to ever be solved.

Now here’s what caught my attention. As Keith Morrison, the narrator, is wrapping up, he says:

As for [the Sheriff], he says he’s determined still that someone will be charged with the murder of Jennifer Morgan.

That someone be charged. Not that the killer is finally found. That “someone be charged”.

And now to innocents in prison.

The feeling that someone must pay, especially for gruesome and violent crimes, is so strong, that it often leads police, D.A.’s, and juries to feel compelled to “solve” a murder with a ‘Guilty’ verdict.

After all, we know someone did it, right? If no one is convicted, justice has not been served.

How many murder investigations have actually lead to indictments by prosecutors of “the only person we know who to charge”? Or indictments of “the spouse because they are the best suspect”?

Follow that up with a trial where the jury is given no other option as to who will ever go to prison for this crime…and you end up with defendants convicted on extremely shaky evidence.

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It’s probably just a typo, but when I check stats, I see a lot of searches for “statue of limitations”.

Click here for information on the “Statute of Limitations”.

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This is a survey post. I’m asking my readers to email me (jamie@austindefense.com) and let me know which blogs they subscribe to that are criminal defense related.

These can be:

• Criminal Defense Lawyer Blogs
• Prosecutor Blogs
• Law School Professor Blogs
• Law Student Blogs
• Appellate Court Blogs
• Legislative Update Blogs
• Niche Blogs on a Particular Subject of Interest
• Any Other Blog You Think Is Relevant

It’s not necessary that the primary or only focus be criminal justice/criminal defense. I’m looking for new blogs to add to my (and your) readers with this survey.

I will post an update with links to every blog sent to me - including, of course, your own, as well as a list of which blogs are most read by my readers. (I say “My readers” because I recently passed the 30,000 unique visitor mark in 6 months of blogging, and currently my Feedburner Stats show me at an average of 76 Circulation over the last 30 days.)

If anyone uses FeedDemon as their newsreader, I’d really appreciate an export of your feeds. This can be done by clicking File/Export Feeds/All Folders/OK, then save to desktop and forward the OPML file that is created as an attachment. I’m sure there’s a way to export all feeds in other readers, but I can’t give you such a blow by blow description.

If I get a decent amount of responses to this post, perhaps I can try this every 3 to 6 months or so, and criminal defense/prosecutor bloggers will have a good source for new criminal law blogs.

Don't forget: all repsonders will get (at least) one backward link to their own blog, or static webpage.  Thanks in advance.

[Update: Hat Tip to Anne Reed for being the 'first responder'.  Keep 'em coming folks.]

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Question (from an email): Can a person be charged with theft (class b misdemeanor) if merchandise was not found on a person? Or is this considered attempted theft? If so what is the difference and maximum punishment for each?

Reply: Can you give me more details?  (What happened exactly?)

Maybe I can give you a better answer that way...

More Details: (A theft from a place of employment.) actual merchandise was not found on this person, merchandise was found in trash in the back of store and person was going out the front door when this person was arrested and charged with theft. Would this be theft or attempted theft?

So could this person be tried for theft or would the charge have to be reduced to attempted theft?

Answer: Like most interesting questions this one has several layers to it.

First and I don't mean to be hyper-technical, but then again I am a lawyer...

Can they charge the person with theft?  Well, not to split hairs, but 'they,' meaning the state, can charge someone with just about anything.  The next 2 questions then deal with (a) what can they prove, and (b) is the evidence legally/factually sufficient?

What can the State prove based on these facts?

The definition of theft is, essentially, unlawfully appropriating property without the owner’s consent. Is taking merchandise off a shelf and sticking it in the trash proof of “intent to permanently deprive the owner of the property”?

Off the top of my head, I’m going to say that this would be very difficult for the State to prove at trial beyond a reasonable doubt.

As for attempted theft? I think they would have to show that the defendant intended to come back at a later time, or had some accomplice lined up in the wings to take it out of the trash and actually leave the premises with it.

Finally, as to legal sufficiency of the evidence… I would have no problem getting up and arguing to a judge for a directed verdict of not guilty on these facts. Whether it would be granted, or whether an appellate court would overturn a potential guilty verdict on appeal, would have to be determined on a case by case, very fact specific, testimony dependent analysis.

But, generally speaking, shoplifting is going to be very hard to prove and/or factually insufficient if the person doesn’t leave the store, or pass the point of sale without paying.

All in all, given your hypothetical, I think it’s a pretty weak case for the State.  (And if this is not really a hypothetical, tell ‘the person’ to get a lawyer ASAP. Case could even be a negotiated dismissal without the need for a jury trial.)

I’ll get to the penalty range differences in a future post.  The short answer is that an attempted Class B offense is a Class C (traffic ticket level) offense.

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