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

Question (from an email): I have a situation that I need your help with if you don't mind.

Here it is: I have three public intoxication charges in the past nine years. Got my first one at 21 and my last one at 29. I am 30 now.

The first one was in 1998, was arrested and put on deferred adjudication. Second one was in 2002, was arrested and put on deferred adjudication. Third one was November 2006, pretty recent. Was not arrested but put on deferred adjudication.

Of course I had fines to pay and my first one I had to attend AA meeting. I fulfilled all requirements without incident for all three. First on was in Austin, Texas....second in McKinney, Texas...third in Lake Dallas, Texas. I believe they are all class B misdemeanors correct?

I heard that when you get three then it changes to class A, is that so?

Anyway....In the last five years I have attended school and became a firefighter / Paramedic and am trying to get hired on to a Fire Department. Well, I was an idiot and got a freakin P.I. in November of 2006 and decided to stop drinking all together because it's no good and I am ruining my chances of getting hired on anywhere.

The Fire Department is pretty strict about criminal history, even with misdemeanors and time is the only thing on my side to get hired on. Well, since I not only have three PI charges racked up but one being too recent I can't get hired right now and it's hurting me.

I heard of something called motion of disclosure...will this help me and is this what I need to sort of fix the problem. 

The least I could do is the most recent one…if not all of them…or even the last two. I don't know.

What would you suggest be the best choice? I don't lie on applications and I really don't want to wait longer for time to pass separating me from the last charge. How much would it cost to do this? Please help me. Thanks.

Answer: One quick note, before I give a more substantive answer…

While I definitely don’t think that getting one Public Intoxication arrest makes someone an alcoholic (after all, it’s often more about your attitude than how much you’ve had to drink), I’m glad to hear that after 3 arrests and 1 ticket for PI, you’ve decided to stop drinking. 

Sounds like you either have incredibly bad luck, or quite possibly there’s an alcohol problem that needs addressing.

OK. So for the good news…Public Intoxication in Texas is a Class C misdemeanor, not a Class B, which makes quite a difference.

So, it’s ‘only’ the equivalent of a traffic ticket level offense, but, as you have found out, it can affect your employment possibilities…especially if you have a ‘history’ of PI arrests.

More good news? What you (and probably the Municipal Court prosecutors you dealt with) call ‘deferred adjudication’ for a Class C PI charge, was actually deferred disposition. That means the ‘probation’ you were on was non-reporting, the same way that you don’t check in monthly with a probation officer when you agree to take defensive driving to get your traffic ticket dismissed.

More good news? In Texas, a successfully completed deferred disposition entitles you to an expunction. Expunctions completely erase a record, whereas the Motion for Non-Disclosure that you talked about ‘mostly’ clears your record. So an expunction is better.

A quick digression based on your email before I get to the ‘bad news’…

A Public Intoxication arrest (or ticket) can be enhanced from a Class C, to a Class B misdemeanor, when you have 2 prior convictions. Again, if you successfully completed the deferred disposition, you have no prior convictions, so you aren’t in that category. But that’s what you ‘heard’ about enhancements for Texas Public Intoxication charges, and that part is true.

OK. You knew it was coming. The bad news…for you, anyway… (isn’t the cost of hiring the lawyer always the bad news?)

You can only expunge multiple arrests in Texas in one proceeding if they all happened in the same county. The petition to expunge must be filed in the county that you were arrested. 

Frankly, the majority of the costs involved in any expungement proceeding is preparing the paperwork. Personally, when I apply to erase my client’s criminal history in Austin, I charge an additional fraction of the initial cost to add multiple arrests to the petition. In other words, it doesn’t cost much more to expunge 2 arrests if they happen in the same county.

You were arrested in at least 3 different counties, so you will probably need to hire lawyers in all 3 jurisdictions to get the expunctions. Even if you hired the same lawyer for all three, it’s not just a matter of adding another few paragraphs to the expunction form to include the other cause numbers, etc. There will be separate filing fees for each County Clerk, and separate appearances for the attorney, etc.

I’ve got to end with some good news though. Sounds like your life is taking a turn in the right direction, and while it will cost some money to clear up your criminal history, you are eligible to do so, and in the long run…trust me, that’s what counts.

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Via Jeff Beckham, the Austin American-Statesman has a feature where subscribers can search property crimes in any area of Austin, by zip code, or even by street. (It’s free, but yes, you may have to ‘sign up’ to use the link.)

The map was created to support reporter Tony Plohetski’s story on property crimes, which looked at more than 40,000 police reports and showed that “property crimes are rarely solved, and the success of solving a case largely depends on where the crime is reported.”

This is a great addition to the Statesman.com site and exactly the type of feature that local newspapers should employ. The only drawback is that these are 2006 numbers, and thus about eight months old.

I think there are potentially other drawbacks, besides the age of the data. In fact, while I can’t prove it, I doubt there are statistically significant differences between actual current and year old data.

Other drawbacks? Well, according to the ‘APD disclaimer’ on the site:

• Due to methodological differences in data collection, different data sources may produce different statistics.
• Our data is continuously being updated. The data provided represents a particular point in time and does not take into account the dynamic nature of our databases.
• The data here may not reflect official Texas DPS, FBI, UCR or NIBRS numbers.
• The Austin Police Department can not assume any liability for any decision made or action taken or not taken by the recipient in reliance upon any information or data provided.

OK. Sounds like a standard “written by a civil lawyer” disclaimer.

But they could have just replaced it with the most famous quote from Mark Twain’s “Chapters from My Autobiography”:

Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: 'There are three kinds of lies: lies, damned lies, and statistics.'

On a criminal defense practice note, I wonder whether the numbers in this database might be crunched to possibly contest a police officer’s contention that one of the reasons he stopped the defendant was “because he was in a high crime area”. It’s almost a joke among defense lawyers that some cops are willing to testify that any area of Austin is “high crime”. Next time I see that in a police report justifying reasonable suspicion to detain, I think I’ll use APD’s own stats to see whether or not it’s true…

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The LAPD has recently started a blog. Makes me wonder when or whether Austin Police Department, or perhaps some other Texas city police department will…

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No one in their right mind, I would argue. From CNN:

The deputy found a small amount of marijuana and prescription pills -- including Adderall, Vicodin, Xanax and Valium -- all without a prescription. 

Gore is charged with two felony counts of possession of a controlled substance, two misdemeanor counts of possessing a controlled substance without a prescription, one misdemeanor count of possession of marijuana and a traffic infraction.

If convicted on all charges, he faces a maximum sentence of three years and eight months in prison, but he could be eligible for a drug diversion program, the District Attorney's Office said.

The kicker here is that of course Gore won’t go to prison. But plenty of people in his situation do. Especially if, as in his case, they have prior drug and alcohol related arrests and police contacts.

Drug War crusaders love to insist that it’s only drug dealers that face serious prison time. Oh really? Al Gore III’s ‘small amount of marijuana and prescription pills” makes him a drug dealer? Or perhaps, a hardened criminal?

The point is that this shouldn’t even be punishable by almost 4 years in prison in the first place.

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There’s been nationwide coverage of the judge who granted probation to a sex offender “because he was too short” to go to prison. Or, at least, that’s how it was covered in the media. Some of the reports about the recent appeal affirming the sentence, like this one by the AP’s Josh Funk, have come closer to hitting the mark:

A judge had valid reasons for sentencing a 5-foot-1 sex offender to probation, even though she cited the offender's height as part of her rationale, the Nebraska Court of Appeals ruled Tuesday.

One important distinction between Funk’s first sentence, and what I remember about the initial coverage, is the addition of the information that the defendant’s height was only part of the judge’s rationale. Other factors?

An examination by a clinical psychologist and the results of a test used to determine the risk that Richard W. Thompson would reoffend both indicated that Thompson, 52, is neither a pedophile nor a sexual predator, the (appellate) court said.

OK. So now we know there’s more to the story.

But wait a minute…it’s still somewhat outrageous, isn’t it? Why would the judge take height into consideration at all? And exactly how did the judge take height into consideration?

"So I'm sitting here thinking this guy has earned his way to prison, but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don't think you'll do well in prison," [the judge] said in court, according to a court transcript of the hearing.

1) I understand why this was reported the way it was based on the judge’s words, and 2) I’ll admit I’m speculating here, but that’s the reason for the title of this post: Reporters on the crime beat need to be able to talk to local lawyers, especially in cases like this where it seems like there’s something really out of the ordinary, and even nonsensical going on.

I think (but admit I can’t prove) that this is the missing key to the story:

Judges like to lecture Defendants before putting them on probation.

That’s it. Explains everything really. I don’t know anything about Nebraska’s sentencing procedures, but let’s assume, based on the PSI (pre-sentence investigation) that this defendant qualified for and was very likely to receive probation. I think it’s a reasonable assumption that the judge was trying to scare the defendant, and probably says something similar about the perils and dangers of prison to everyone.

Any good criminal defense lawyer in Austin would be able to tell you that District Court judges in Travis County frequently lecture felony defendants who are going on probation about (a) walking the line (b) staying out of trouble (c) I’ve got you under my thumb…basically just saying “you better behave now”. And I’m sure that is probably true everywhere.

In fact, it’s a good thing. No, not all of my clients need to be ‘scared straight’. But some of the probably do. Probation is not a slap on the wrist. And if the defendant violates the terms of his felony probation, he is looking at the possibility of prison time. Even for so called ‘minor violations’. A reminder from the judge probably doesn’t hurt.

From Doug Berman’s entry over a year ago when the case was first reported, here’s some more of that judge’s lecture:

"I want control of you until I know you have integrated change into your life," the judge told Thompson. "I truly hope that my bet on you being OK out in society is not misplaced."

That confirms my suspicions about the “controversy”. It fits right into the ‘scared straight’ theory.

As for crime reporters? Well, for those who didn’t want to focus solely on the sensational and almost silly aspects of the story, I believe a call to a defense lawyer who practiced in front of that judge may have elicited a fuller picture of what was going on. And while a defense attorney might not want to be quoted, perhaps a line could have been inserted to the effect of:

“According to some defense attorneys, the judge may simply have been trying to not-so-gently remind the defendant that he would be closely monitored, and that he would regret being sent to prison if he violated his probation.”

After all, while “Judge Loses Her Mind” is a great headline, isn’t the point of journalism to give a complete and accurate picture of the story to the readers?

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This will come as no big surprise to criminal defense attorneys, but the so called ‘Duke Effect’ is over.

Want proof?

Type the phrase “Michael Vick should be suspended” into Google Blog Search, and right now you’ll get 533 results. Mind you, this is about 24 hours after indictment… depending on how long after that you click the link, it could easily be more.

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Welcome to Blawg Review Number 117: the Bill of Rights/Criminal Law Edition.

Approximately 5% of previous Blawg Review hosts have blogs related to criminal law, and not all of them practice and/or blog exclusively about criminal defense: Appellate Law & Practice, Crime and Federalism, JAG Central, Blonde Justice, Concurring Opinions, and Public Defender Stuff.

This week, I will supplement the usual suspects’ contributions (i.e. posts from Civil Lawyers) with a healthy dose from around the bourgeoning criminal law blogosphere. I hope that criminal defense attorneys will consider hosting Blawg Review in future editions. At the very least, criminal law bloggers should consider submitting their best posts on a weekly basis.

Last week’s host, Corporate Law UK, wrote the Review in iambic pentameter (and possibly inspired Nate Oman’s entry this week about the demise of wigs in the British legal profession). Alas, poetry is well beyond my talents, so we shall have to settle on a different theme.

I decided to use the six amendments from the Bill of Rights that most apply to criminal defense, highlight a historic Supreme Court criminal case, and use the text of the Amendment itself as the springboard for this week’s featured posts. [Civil lawyers need not worry… I found ways to work your submissions in.]

Here goes…

THE FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Texas v. Johnson, 491 U.S. 397 (1989) The Supreme Court affirms that flag burning is protected speech under the 1^st Amendment. Many forget that this is indeed an important criminal case. This wasn’t a case of prior restraint…. Johnson had originally been sentenced to one year in jail for the overtly political statement consisting of burning the flag outside the 1984 Republican National Convention in Dallas, Texas. Justice Brennan authored the 5-4 decision.

Freedom of Speech

The patients' bill of rights is a fluid concept, from state to state, and hospital to hospital, but it usually includes the right to clear communication about his or her treatment options, free from governmental interference. David Harlow discusses amendments to the Stark self referral rules, dealing with how clear communication about recommended procedures could be clouded by a physician's financial interest in the referral. [Off topic note: please consider sponsoring David as he bicycles 200 miles in 2 days this summer to raise money for cancer research and treatment.]

Free speech is great, of course, but would it matter if no one were listening? Dave Hoffman starts a flurry with his post entitled “The Flat Legal Blogosphere, and What to Do About It”. Eric Turkewitz was listening, as evidenced by his post “Is the Blawgosphere Stagnating?” PrawfsBlawg talks about the future of legal blogging. Next Simple Justice responds, and then Mark Bennett. Hoffman writes more on the topic, and asks us to consider “Why do Lawyers Blog?” I’d argue that this blogversation itself provides proof of a vibrant legal blogging community. Indeed, people are listening.

THE FOURTH AMENDMENT

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.

Wong Sun v. United States, 371 U.S. 471 (1963)  The Supreme Court declares that narcotics seized from an illegal search were the “fruit of the poisonous tree” because none of it would have “come to light but for the illegal actions of the police”.

Unreasonable Search and Seizure

Kansas Defenders reports on an appellate decision that found a pat-down search unreasonable.

Defending folks charged with possession of marijuana, and other controlled substances requires a thorough knowledge of Search and Seizure law, and the ability to successfully argue Motions to Suppress the Evidence. But for now, a short detour into the world of bloggers who would like to see the ‘War on Drugs’ ended in the first place.

Pete Guither writes a letter to the DEA protesting the threatened asset forfeiture against the building owners where medical marijuana dispensaries are housed in Los Angeles.

Blame the Drug War wonders whether her anti-Drug War activism does any good.

Blog Reload brings us his Marijuana News Roundup.

Radley Balko focuses on the over-criminalization of pain medication in his House Crime Subcommittee post.

And for those who think being anti-Drug War is solely a cover for prejudice against the police be sure to subscribe to the Law Enforcement Against Prohibition blog.

THE FIFTH AMENDMENT

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Miranda v. Arizona, 384 U.S. 436 (1966) To insure protection of the right not to incriminate oneself, the Supremes proscribe the prophylactic remedy now known as the Miranda warnings, or, said in plain English…the police must advise someone in custody of their rights before questioning them. Little known fact? Miranda was retried without the illegally obtained evidence, and reconvicted.

Indictment by Grand Jury

The accuser has supposedly repressed the memory of the unprovable crime for 32 years, but reported it to the police recently. Three days before the State dismissed the case, Simple Justice blasts the District Attorney’s Office for indicting a man when they knew they didn’t have enough evidence to convict. Despite the dismissal of charges, Scott’s original point remains true: the damage to reputation is unfortunately permanent.

Double Jeopardy

Penny Umstattd-Cope reviews an interesting Double Jeopardy decision from Missouri State Court. The defendant was retried after a successful appeal, and argued that his second jury should have been instructed to limit their punishment range based on the first (reversed) case. The Appellate Court disagreed.

Compelled to be a Witness against Himself

Rob Leonard notes that 30 hours of police interrogation can easily produce false confessions – in this case, one that lead to wrongful imprisonment for 22 years.

The opposite of “not being compelled to be a witness against yourself” is often “interrogation” or “torture,” and Marty Lederman collects a compendium of Op-Ed pieces on those subjects written by Jack Balkin.

Shawn Matlock points out that since we have a 5^th Amendment, you ought to use it.

Miranda Rights

Randy England answers the question all criminal defense lawyers hear: “The police didn’t read me my rights. Will they drop the charge?”

Appellate Law & Practice applauds the California First for affirming the suppression of un-Mirandized statements, and resisting the urge to find some sort of “the Defendant is a bad guy” exception.

THE SIXTH AMENDMENT

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Gideon v. Wainwright, 372 U.S. 335 (1963) Denied access to a lawyer, forced to defend himself and sentenced to five years in prison, Clarence Gideon appealed his case all the way to the Supreme Court. Reversing several previous decisions, the Court finally allowed that “assistance of counsel” was necessary, even for non-capital cases. Little known fact? Future Supreme Court Justice Abe Fortas was eventually assigned to help argue for Gideon at the Supreme Court.

Jury Trial

Jon Katz writes on the all too common phenomenon of jurors caving into pressure from fellow jurors, especially in serious felony criminal trials.

Mark Bennett describes the five basic defenses to possession charges that should be considered at trial. Of course, when actually in jury trial, don’t forget Mark’s corollary to Occam’s Razor… “Bennett’s Chainsaw” or why the second simplest explanation of the Government’s evidence is usually the best.

You can’t very well have the right to a jury trial, without imposing some sort of compulsory jury duty requirement on others. Kevin Underhill and Seth Freilich reported the case of a fellow who tried just a bit too hard and too obviously to get out of jury duty during voir dire and found himself jailed for his troubles.

Anne Reed examines the effect of having lawyers in your jury pool or on your panel.

Frolics and Detours’ latest post illustrates the emotional toll a criminal trial can take on the defense attorney.

And, just because you have the right to a jury trial in a criminal case, doesn’t mean you can’t waive it. Robert Guest reports on a successful DWI bench trial. Windy Pundit had less success in his trial by judge. A Public Defender writes that Windy’s experience with testilying is all too common.

The Confrontation Clause

Electric Lawyer writes about a really bad decision from the Second District of California allowing hearsay evidence without allowing the defendant to confront his accuser.

Prosecutor Joel Jacobsen posts about two Federal Courts coming to different conclusions about the same legal question; namely, the testimonial nature of challenged hearsay under the Confrontation Clause.

The Presumption of Innocence

In Coffin v. U.S., 156 U.S. 432 (1895), the Supreme Court affirmed that the presumption of innocence in federal cases flowed from the guarantees of the 5^th and 6^th Amendments in the Bill of Rights (later applied to the States through the 14^th Amendment). 

In that vein, Albany Lawyer Warren Redlich responds to a prosecutor who accused him of thinking everyone was innocent. (I didn’t find any ‘this week’ posts about the 5^th amendment’s due process guarantee, but feel free to access Redlich’s older article “A Substantive Due Process Challenge to the War on Drugs”.)

Assistance of Counsel

The right to effective assistance of counsel requires a healthy dose of client involvement. Stephen Gustitis offers suggestions to criminal defense lawyers on how best to gather the facts from your client. And speaking of building a defense, Philadelphia Criminal Defense Lawyer Mark Jakubik continues a recent discussion on having clients take polygraphs.

Jeralyn Merritt at TalkLeft comments on a new study by a Harvard economist that Federal Public Defenders get better results than appointed but privately hired counsel. The study certainly stirred up the criminal blogosphere… same subject, more views on it from: Empirical Legal Studies, Public Defender Dude, Rumpole, Osler’s Razor, Singing Loudly, Doug Berman, and HackLawyer. Access the study itself here: An Analysis of the Performance of Federal Indigent Defense Counsel.

Brett Trout asks “Are You Getting the Most Out of Your Lawyer?”

THE EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Robinson v. California, 370 U.S. 660 (1962) The trial judge instructed the jury to convict Robinson if they found that he was addicted to the use of narcotics and defined ‘addicted to the use of narcotics’ as ‘based upon a condition or status’. The State of California argued that ‘a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there’. The Supreme Court ruled that criminalizing addiction (as opposed to use of narcotics) was cruel and unusual.

Cruel and Unusual Punishment

Eugene Volokh finds it unusual that there used to be the statutory possibility of no punishment for men who killed their wives’ lovers in The Unwritten Law, Written.

Speaking of punishment, Leon Gettler speculates on what kind of sentence Conrad Black will receive now that he has been convicted on 4 counts of fraud and obstruction of justice. White Collar Crime Prof Blog also looks ahead to Lord Black’s sentence. Doug Berman points out that Black will be subject to enhanced penalties based on his nine not guilty verdicts. And for complete coverage of the entire trial from the beginning, visit The Conrad Black Trial: Comeuppance or Vindication blog, written by Daniel Ryan.

Louis Lechter writes about some of the collateral consequences and potential civil punishments the Texas Board of Nursing Examiners contemplates when a nurse is arrested for and/or convicted of DWI.

Scott Henson provides an example of excessive punishment due to Texas’ penchant for classifying everyday juvenile behavior as a felony: in this case, a sixth grader wrote “I love Alex” with a baby blue Sharpie on the school gym wall. On a semi-related note, Gopher Lawyer spends the day interviewing clients in the Juvenile Detention Center. Blawgraphy weighs in as well.

Seeking Justice notes that some people who voice general disapproval of the ultimate punishment, the death penalty for murder convictions, actually support it in certain individual cases. Opinio Juris points out that other countries have the death penalty for non-violent crimes. And for those defending against capital murder charges, you might use a little Clarence Darrow inspiration for closing argument.

THE NINTH AMENDMENT

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Griswold v. Connecticut, 381 U.S. 479 (1965) Being convicted of giving ‘information, instruction, and medical advice to married persons as to the means of preventing conception’…sounds a whole lot like convicting licensed physicians for advising married people that the best way to not have more children is to use a condom. Justice William O. Douglas’ opinion found the law invalid based on the constitutional “Right to Privacy”. While not specifically mentioned in the Constitution, Douglas reasoned it still existed because the specific guarantees of the Bill of Rights have penumbras “formed by emanations from those guarantees that help give them life and substance”.

Along those lines, let me restate the 9^th Amendment for purposes of this edition of Blawg Review: My announced intention of focusing on criminal law blogs, shall not be construed to deny or disparage posts written about other legal concepts. Hence, the last subsection entitled…

This Week’s Penumbra Posts

Carolyn Elefant tells us the story of the spam filter that caused a lawyer to miss an important email from a Federal District Court. Jim Calloway weighs in with practical solutions on how to avoid the same fate. 

What About Clients asks whether a lawyer needs to like their client to do a good job for them.

Grant Griffiths is looking to update his blogroll with other home-office and/or solo lawyer blogs.

California Debt Blog warns debtors that they need to demand three things from creditors: verification, verification, verification.

Niki Black is asking other bloggers to weigh in on the best statistics software or widget they use to count visitors. (Also check out her newly launched Legal Humor blog: Legal Antics.)

Speaking of legal humor…everyone enjoys a classic lawyer joke, but do we have too many lawyers or too few? Overlawyered sees an opportunity to cut down on lawsuits, after Above the Law comments on closing down a law school. Meanwhile, May It Please the Court tells us we are actually running out of lawyers. Who knew?

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

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Thanks to Steans for reminding me of the anniversary.

When I came back from the memorial service last year, for some reason, I set the card that was passed out at the ceremony on the shelf next to my computer. It’s still there. I read it every once in while.

It’s from Blogo-de-Wilson, and I think it might have been his best post ever. On learning of Billy Preston’s death, Jeff wrote (in part):

59 is young, folks. You only get one shot at this life. Don't waste it. It could be gone any day. Travel. Blow some money. Go see some music. Make some music. Kiss someone on the mouth (preferably someone who won't sue you).

Read a book. Write a book. Whatever. Just don't take it for granted. No one lies on their death bed wishing they had spent more time at the office.

Grab Let It Be (preferably on vinyl) tonight, and sit back and enjoy yourself.

Humor. Joie-de-vivre. Totally Jeff.

The twins turn one tomorrow. When it comes time for me to have the father-son(s) talk about Carpe Diem/Seize the Day/Make the Most Out of Life… I’ll tell them about Jeff. Hopefully, I’ll still have the card to show them too.

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Received this email, and permission to publish it from polygraph examiner John Swartz:

Jamie, I enjoyed reading your publication about "Should the Accused Take a Polygraph Examination?"

I was a Federal examiner for over 20 years, both with DEA and the Central Intelligence Agency. I have much to tell you.

In 1995, I moved back to the United States after many years in South America. I began testing sex offenders on probation in Houston and the many successes we had with that category of offender led me to give a training session to the Harris County District Court Judges in 1999.

Our felony court judges are totally on board.

They now order it for everything, including Felony DWI's to make sure they're not drinking and driving, etc. as well as pedophiles to make sure they have no new child victims. If they fail and admit to new violations, a MAG is filed.

It is simply a matter of training the decision makers. Train the judges and the probation supervisors and everyone and everything else falls into place.

It works to the benefit of the defense bar because those lawyers can successfully argue, "If the state can use it, so can I". And they prevail every time. We've won hundreds of times in front of the Grand Juries as well on everything from murder to shoplifting. If you want attorney references, I'll give you dozens and dozens.

Incidentally, most academic studies on polygraph accuracy on specific issue criminal polygraph exams average 98-99% since 1980.

If you need more info on polys, call me any time at 713 460-3000 or hit the website at www.polygraphusa.com so we can discuss.

I test statewide and am in Austin, San Marcos and San Antonio every month.

John Swartz

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Question: My daughter was in a car that was pulled over and one of the passengers had been drinking.  When the car was pulled over, it was searched and there were several unopened beers present. 

My daughter was being driven to a restaurant from school and did not know alcohol was present in the vehicle when she entered.  All of the passengers were charged with MIP.  3 of them have already pleaded guilty.

Is she automatically guilty of MIP if she is in proximity of alcohol?

Answer: Absolutely Not. And I don’t just mean that in the ‘gut instinct’ criminal defense lawyer ‘no-one-is-automatically-guilty’ of anything way. There’s more to it than that.

To prove any charge involving possession, whether it’s for a minor and alcohol, or an adult and marijuana, cocaine, etc., the State needs to prove that the defendant knowingly or intentionally possessed the contraband.

If a jury, or a judge in a bench trial, believes that the accused did not knowing possess the substance they are charged with possessing, they will be duty bound to acquit.

On a charge that is ‘only a Class C misdemeanor,’ it is sometimes easier, and undoubtedly less expensive, to sign up for a deferred disposition, than it is to hire a lawyer to go to trial.

But on cases like Class B misdemeanor Possession of Marijuana (or higher felony possession charges), where you need a defense lawyer, unknowing possession is always a valid defense.

See also:  Jury Selection and the Unwitting Possession Defense and Definition of Possession in the Texas Penal Code

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As previously announced, I will be hosting next week’s edition of Blawg Review.

For those of you unfamiliar with it:

Blawg Review is the blog carnival for everyone interested in law. A blog carnival is a traveling post about a topic or theme… Blawg Review has topics discussed by lawyers, law students and law professors.

Each weekly issue of Blawg Review is made up of article submissions selected from the best recent law blog posts. The blogger that puts together the Blawg Review carnival each week is called the "host".

That’s right. Blogging lawyers of all sorts should check out the submission guidelines, and send me their best legal post of this week. Entries are due by Saturday night. It’s the best practice to send me suggestions through the Blawg Review site itself, rather than to my business or personal email.

Next week’s theme will be criminal defense, and more specifically, the amendments in the Bill of Rights that most effect criminal defendants. But you civil lawyer Blawg Review regulars, don’t despair. Trust me, I’ll work you in too.

I hope to receive submissions from criminal defense attorneys, because we as a group have been severely under represented in previous Blawg Reviews.

Also, by the end of the week (before next week’s edition) I should be able to finish up my prior commitment to list all bloggers nominated and participating in the Criminal Law Blog poll from a few months ago.

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Criminal defense lawyers represent innocent clients, at least some of the time. I’m not talking about “Not Guilty” clients, or “You can’t prove my client did it” clients, or “Probably guilty, but he deserves a break because ________” clients… I’m talking about actually factually 100% innocent clients. They did not do it – period – end of sentence clients.

Well, why not take a polygraph? That should be the end of it, no? The innocent accused passes, the result is provided to the prosecutor, the charges are dropped.

Not necessarily. First, polygraph results are inadmissible, as they should be. [Public reminder to myself to write a post someday soon about the problems with polygraph results.]

Second, there’s the problem of which polygrapher the State believes. They very often trust their own polygrapher, but not always one that doesn’t get a government paycheck. (Let’s ignore for now that the ‘science’ of polygraphy can lead to two different – opposite – results. As I said, I’ll talk about the problems later.)

Mark Bennett and Stephen Gustitis have weighed in recently on this issue. From Mark:

Any accused who is going to take a polygraph exam should, if only for that reason, first take one from an independent examiner. The exam costs (in Houston) less than $1,000. If the accused fails, the result never goes any farther than the lawyer, who knows that (for whatever reason) the client can't pass a polygraph exam and shouldn't waste his time taking the government's exam.

If the accused passes, however, he may have a result that the prosecutor will accept. If the prosecutor still insists on a police examiner performing the examination, the client knows going in what to expect and knows that he can pass a polygraph examination. He will not be susceptible to the police polygrapher's interrogation tactics.

Absolutely correct. The defense lawyer needs to know beforehand whether his client will pass. An innocent client can fail, and there’s no need to get the Prosecutor to dig their heels in even more.

From Stephen:

Never, never, never take a polygraph examination without first consulting with a highly qualified criminal defense lawyer. If the lawyer suggests you take a polygraph administered by the police, fire that lawyer and hire another. The only polygraph you should take is one given by an expert hired by your lawyer, which protects the results under the attorney/client work product privilege…

I've had many unfortunate people contact me on the phone and explain they had submitted to a police polygraph and failed. My next question is always: "What did you tell them after that?" Rarely is the answer a good one for the accused.

I think the defense attorney needs to know the local culture regarding polygraph results. In some jurisdictions, no polygraph will ever convince a prosecutor to dismiss. Sounds like in Houston, some prosecutors will accept non governmental polygraphs, without requiring a follow up with the State’s ‘expert’.

In Austin, it’s usually going to be a two part process. The defense, as both Mark and Stephen suggest, needs to get their own polygrapher first. Then, after the defendant has been through it once, passed, he is prepped to take one from the State.

Let me add one final thought about ‘prepping’: the defense lawyer needs to warn his client that some State polygraphers, after administering a test where the defendant passed (i.e., answered the questions in a way that shows that he is not guilty), will tell the defendant that he failed.

Yes, the State’s polygrapher outright lies to the defendant, in an effort to convince him that all hope is lost, and that things will be easier now if he just goes ahead and confesses. What’s worse is this: if the guy admits anything, his polygraph result will still be inadmissible at trial…but his confession won’t be.

Bottom line? Innocent people who are even potentially being investigated for criminal activity need to consult lawyers before subjecting themselves to any government interrogation, police, polygrapher, or any other kind. (OK, OK… guilty folks should think twice too.)

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The Criminal Defense Blog sponsored by “Total Criminal Defense” took what I considered to be an unusual position in its post Thursday, “Genarlow Wilson Case Not Just About 17 Year Old Having Consensual Sex With 15 Year Old”. Noting that Wilson received a ten year prison sentence for consensual sex with someone just two years younger than him, the “Guest Attorney” who wrote the post called it a “seeming miscarriage of justice”.

But wait, Mr. Anonymous “Guest Attorney” wants us to know that Wilson’s sentence is indeed justified because:

According to the Journal Constitution, a video tape from the party shows Genarlow having sex with a 17-year-old “listless” girl who later said it was against her will. Wilson’s jury decided the girl had consented…

Whether the 17-year-old consented, or not, Genarlow took advantage of a drunk girl. Rape is generally defined as having intercourse without consent.

When a girl is too drunk to say “no,” intercourse with her is rape. At the very least, there was a drug and alcohol induced, videotaped orgy amongst minors. It is the videotape and the prosecutor’s belief Genarlow raped the girl that keep him in jail for the time being.

I can’t tell if the writer realizes that when he says the “jury decided the girl had consented,” that he is talking about the fact that Wilson was acquitted of that charge. Found Not Guilty.

But the newspaper report and the “prosecutor’s belief” are enough to outweigh the acquittal. Those two things justify the excessive sentence in the consensual sex conviction.

I expect that type of reaction from the public, but you’d think a defense attorney would know better.

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Now that the Supreme Court has ruled that "Bong Hits 4 Jesus" is improper student speech.  Via Students for Sensible Drug Policy, try your hand at guessing which of these statements you can and can't say now...

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Despite all we’ve heard lately about ‘perjury traps,’ there is no such thing.

From “The Lying Game,” Michael Kinsley’s guest column in the New York Times comparing the ‘perjury trap’ of Bill Clinton to the one supposedly set for Scooter Libby:

Mr. Clinton… should not have lied. But he lied in answer to questions he should not have been asked. He should not have been put in a position where he had to choose: he could lie under oath, and be impeached or worse, or he could tell the truth, and embarrass himself and his family, and probably still be impeached or worse…

Mr. Libby… should not have had to face a perjury trap: the choice between prison for lying, or prison for his role in a set of transactions that the press regards as not merely O.K. but sacrosanct.

While their situations were fairly dissimilar, neither Clinton nor Libby faced any ‘trap’ at all.

First Clinton. Yes, he was being forced to testify about things that he did not want to be made public. But that happens all the time. His happened to be in a civil case, so he didn’t have any Fifth Amendment privileges, but it still wasn’t a trap.

He wasn’t forced to lie. He could have refused the deposition, which would have caused him significant political problems, and possibly doomed his defense, but it was an option. (I don’t practice civil law; if memory serves, I think the other side may be entitled to ‘adverse factual findings’ against the person who doesn’t participate in a court ordered deposition.) But the fact that ‘he shouldn’t have been asked the question’ does not logically mean he was required to lie. And of course, there was always the ‘non trap’ option called ‘telling the truth’.

Libby’s situation was even less complex. He had the option of taking the Fifth Amendment, and refusing to testify. Yes, that would have caused significant political embarrassment for his bosses, but that was his choice to make.

Once he decided to testify, how was he trapped? According to Kinsley, he’s trapped because he has to lie, or has to admit possible criminal involvement.

Newsflash: That’s why we have the Fifth Amendment. That’s not a trap…it’s a choice. Make it, and live with it. My advice? Don’t testify unless you can be absolutely truthful.

Listen, no one ever wants to participate in the criminal justice system. No one wants to be investigated for a crime. The reluctance of innocent witnesses to participate in the investigatory process is well known as well.

No one wants to come to court to testify. Citizens groan when the receive jury summons in the mail. It’s not always the most pleasant process around.

But let’s not confuse a person’s desire to [keep their political career afloat… hide secrets from their family… avoid embarrassment… follow orders from above] with being forced to lie.

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The Eyewitness ID Reform Blog reports on a Federal Court’s ‘misunderstanding’ of Eyewitness identification ‘science’ in the denial of an expert witness’ opinion. Citing the decision:

Officer Catterton served as a military police officer for the United States Army for six years. He has been trained to be constantly observant of his surroundings, especially the people he encounters on the job.

He has been specifically trained to observe and remember the faces he comes across so that they may be later identified.

Criminal defense attorneys hear this garbage all the time. Basically, it’s a way of saying ‘this police officer is better than everyone else at (fill in the blank) because we sent him to a class about it.”

Well, it worked for Columbo didn’t it? Wasn’t he able to immediately and accurately attach himself to the murderer within 30 seconds of arriving on scene? Must have been his special ‘police training’.

Unfortunately for the innocent defendant, it turns out that real life doesn’t work exactly like it does on TV. As Eyewitness ID Reform points out:

In fact, the specific question of cops vs. college students as eyewitnesses has been studied, and all the evidence shows that trained police are no better at remembering perpetrator identities than random college students. See, for example, a 1998 study by Christianson & Karlsson: Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students).

And yet judges continue to rely on this false notion in rendering critical decisions, and in turn juries end up relying on the same false notion in their deliberations, because actual experts are prohibited from testifying to the actual scientific findings that clearly clash with the widely held common sense view.

Mind you, this comes up in the context of a Federal Judge denying a defendant the opportunity to put on his witness to explain to the jury that mistakes happen. All the time in this context.

That’s right. You are on trial for your life and liberty, facing prison time, and you want to be able to explain the real science of mistaken identification to the jury…but the judge won’t let you…because, after all, the witness against you is a cop. And they are special.

Sure, scientific studies have documented that they aren’t any better able to identify folks than anyone else. But the prosecutor will be allowed to argue that they are. And you are denied the opportunity to present the scientific truth.

Eventually, Wikipedia is going to have an entry about Eyewitness Identification.

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President Bush has commuted Scooter Libby’s prison term, saying:

I have concluded that the prison sentence given to Mr. Libby is excessive.

Based on that reasoning, here are some suggestions for the President regarding future pardons and commutations.

Felony Drug Offenders: It is a myth that defendants do not serve prison time for simple possession of controlled substances. For example, in Texas, 1 gram of cocaine (the equivalent of a sweet and low packet) carries a maximum penalty of ten years in prison. Any amount of prison for possession of small amounts of cocaine or heroin is excessive; therefore, pardons for all are in order.

Crack vs. Powder Cocaine Offenders in the Federal System: the Federal Sentencing Guidelines mandate a five year minimum prison sentence for 5 grams of crack; the same minimum doesn’t kick in until 100 times that amount for powder cocaine. Arbitrary? Yes. Capricious? Yes. Excessive? Of course…many more pardons coming.

Three Strikes and You’re Out for Petty Offenses: The most famous case is Leandro Andrade’s. His case went all the way to the United States Supreme Court, who upheld his 25 years to Life sentence for theft of $150 worth of videotapes. Unfortunately, the public seems to believe that 3 strikes laws apply only to the worst of the worst: murderers, rapists, etc. Too often they are applied in fact to petty criminals. It’s the definition of excessive.

‘Statutory Rape’ Laws: Speaking of real rape, reminds me to mention something that shouldn’t be called rape in the first place: consensual sex. Usually between teenagers, who, had one of them been born a few weeks or months earlier, would not have been criminal. In Texas, we don’t call it ‘Rape’; it’s called sexual assault and that does a great disservice to the public. Genarlow Wilson’s ten year minimum sentence for consensual sex must surely be considered excessive, if Mr. Libby’s two and half year term for intentionally lying and perjury is. Wilson’s case is famous, but tens of thousands of others are imprisoned with no fanfare.

More from the President’s press release:

…the punishment does not fit the crime: Mr. Libby was a first-time offender… and was handed a harsh sentence based in part on allegations never presented to the jury.

Imprisonment is inappropriate for first time non-violent offenders… and lengthening sentences for ‘relevant conduct’ based on hearsay and guesswork in PreSentence Investigation(PSI) reports is ridiculous…? 

Fine by me. Let’s apply this reasoning to everyone though, shall we?

I’m hoping to hear from other criminal defense attorneys in the blogosphere. Post about your suggestions based on the unreasonable pubishments in your jurisdiction, and let me know about it.

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