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

With the passing of William F Buckley, let us remember this stalwart of conservatism’s (eventual) position on the War on Drugs. From the July 1, 1996 cover story of National Review:

WE ARE speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen -- yet a plague for which no cure is at hand, nor in prospect…

How many users of illegal drugs in fact die from the use of them? The answer is complicated in part because marijuana finds itself lumped together with cocaine and heroin, and nobody has ever been found dead from marijuana.

The question of deaths from cocaine is complicated by the factor of impurity. It would not be useful to draw any conclusions about alcohol consumption, for instance, by observing that, in 1931, one thousand Americans died from alcohol consumption if it happened that half of those deaths, or more than half, were the result of drinking alcohol with toxic ingredients extrinsic to the drug as conventionally used.

When alcohol was illegal, the consumer could never know whether he had been given relatively harmless alcohol to drink -- such alcoholic beverages as we find today in the liquor store -- or whether the bootlegger had come up with paralyzing rotgut.

By the same token, purchasers of illegal cocaine and heroin cannot know whether they are consuming a drug that would qualify for regulated consumption after clinical analysis…

I leave it at this, that it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that the good offices of your vital profession would mobilize at least to protest such excesses of wartime zeal, the legal equivalent of a My Lai massacre.

And perhaps proceed to recommend the legalization of the sale of most drugs, except to minors.

The conclusion reached in his essay is simply basic conservatism.

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I decided to rewrite the headline for a story in the Philadelphia Inquirer, originally titled ‘Chester and Delaware Counties Expand Drug War’. I got the new headline – the title of this post, that is – from the first two paragraphs of the story:

The White House designated Chester and Delaware Counties as "high-intensity" drug-trafficking corridors yesterday.

The dubious distinction, announced at a news conference at the U.S. Attorney's Office in Philadelphia, delighted representatives of regional law enforcement because it comes with $200,000 in federal funding.

I think it’s a fair headline.

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The Austin Obama ’08 campaign called me tonight to tell me they had moved tomorrow’s Town Hall Meeting to a bigger room in the Austin Convention Center, and, more importantly, that they had 2 tickets for me. I was on the waiting list after being turned down for tickets this afternoon. Realistically, I thought there was no chance.

The friendly folks at Obama headquarters seemed unsure of how attendees would be allowed to submit questions, but I thought I’d get a head start, and take some typed out already, in the hopes that would increase my chances of actually getting to address him.

I was originally thinking about asking him whether he would consider using the bully pulpit of the presidency to speak out against lengthy – as in decades long – sentences for low level drug offenders.

I looked at the tickets, however, and noticed that they say: A Town Hall Meeting to discuss strengthening America’s Economy. So I figure I need to at least tilt any proposed question to the economy. I suppose I could ask whether he would consider using the bully pulpit of the presidency to educate the American people about how much incarcerating folks is costing them in tax dollars, but I’m not sure they would select that. Yes, I’m bucking for a good question, but also one I think they will ‘like’.

Basically, I’m asking for suggestions, and here’s what I’ve got planned so far. I got the basic premise of the question from my wife. (The initial sycophancy is my idea.)

Senator Obama:

I’m a criminal defense attorney here in Texas, and I’m an admirer of the legislation you spearheaded in Illinois to help ensure that innocent people not be given the death penalty. Since this meeting is about economics, could you talk a little about how expensive death penalty litigation by the State is, and whether or not America as a whole might consider abandoning it entirely?

I’ve got to work on that, I know. Feel free to comment, and help me tweak it. Or suggest something entirely different – but I would like to focus on criminal defense, and I think the topic of the meeting means I need to focus on the economic aspects of some of this too.

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Grits asks, “Would you confess to a crime you didn’t commit to save your life?” and notes that in Austin, Texas in 1988 Christopher Ochoa did exactly that – then plead to a life sentence and testified against his ‘friend’ Richard Danzinger, who also happened to be innocent. (Danzinger’s jury took 8 minutes to sentence him to life as well. Unfortunately, after several suicide attempts but before eventual exoneration, he was beaten within an inch of his life in prison and suffered tremendous injuries.)

Noting an article profiling now practicing criminal defense lawyer Ochoa in today’s Dallas Morning News, Grits points out that Doug Berman of Sentencing Law and Policy has previously praised the death penalty as en effective plea bargaining tool for law enforcement and prosecutors:

Doc Berman over at the Sentencing Law and Policy blogs says the death penalty is an "effective plea bargaining tool," but to me here's an example of what he means in practice. If you threaten to kill somebody, they may admit to anything, but I'm not sure that's so "effective" as it just makes wrongful confessions more likely.

Holy cow. How could I have missed that one of my favorite bloggers was so off the mark? Here’s a clip from Berman’s original post on the subject, “Another example of the death penalty as an effective plea bargaining tool”:

It seems fair to assume that the federal government would not have been able to secure this plea deal were it not for the threat of the death penalty.  (Other high profile cases with similar "death-defying" plea bargains include the Unibomber and the Green River Killer.)  Though many might debate whether justice has been served by this plea deal, no one can question whether justice was efficient.

Berman is referencing a 2007 plea deal between a ‘drug kingpin’ and the Feds, where the defendant plead to life to avoid the death penalty. And I’m not sure what he meant by debate about “whether justice has been served by this plea deal”. Maybe he meant justice for this crime cried out for the death penalty, and therefore some could be unhappy with it.

But to the extent that the phrase questions the accuracy of the conviction, this logic makes no sense to me at all. Threatening to kill someone if they don’t [fill-in-the-blank] is very likely to produce, well, to produce [fill-in-the-blank]. And if achieving [fill-in-the-blank] is of the utmost importance, than threatening to kill someone to achieve it is likely to be an extremely efficient way of doing just that.

The problem with this logic however, is that while in this scenario you can fill in the blank with the concept of ‘convicting someone of this crime,’ you can not fill in the blank with the concept of ‘convicting the right person of this crime’. More specifically, you can only convict the person you threaten with the death penalty; you do nothing to make certain that you threaten the right person.

Efficiency is the wrong measure of any prosecution. Certainly accuracy should be the hallmark of any capital case. I’m pretty sure the Spanish Inquisition got high marks for efficiency when it came to extracting confessions.

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A (former) CNCN producer gets fired for expressing his own opinions on his own blog, and the blogosphere lights up about it. Any relevance of this story to blogging lawyers out there? Probably for big firm bloggers; not so much I imagine for criminal defense attorneys.

Most criminal defense lawyers are solos to start off with, and I for one certainly don’t yearn to ever join the civil bar. (Wouldn’t know anything about how to do it either – actually it sounds kind of like a nightmare.)

As far as law blogging goes, it’s best to be solo too. The best law blogs are extensions of the lawyer’s indicidual personality. That is to say they express their actual opinions - not ones filtered by ‘the boss’.

I can give a quick example. I wrote a post last Friday night on my DWI blog that even I had reservations about. Some of those qualms ended up as part of the post. Without rehashing the whole post, suffice it to say that for various reasons I wanted to make this point:

Lots of DWI lawyer websites dispense ‘advice’ on how not to get arrested and/or convicted of DWI (don’t blow in the machine, don’t do the tests, be polite but say as little as possible, etc.). I’ve never written a single word on the subject, mostly because I think it’s plain silliness. For one thing, potential clients don’t need that advice: they have already been arrested. If you’re going to be their lawyer, you’ve got to play the cards you’re dealt.

For those who are trolling the internet, looking for ‘How To’ advice about beating your future DWI… there’s only one good piece of advice: don’t drink and drive. No, it’s not actually against the law in Texas to consume alcohol and get behind the wheel. But never driving after consumption of alcoholic beverages is the only way to ensure that you’ll be safe from arrest.

If you need more reasons, I’ve said it before: it’s cheaper to rent a helicopter to fly you home than to get arrested for DWI – and no, I’m not just talking about my fee.

Perhaps it’s pretty basic stuff for 99% of blogs out there, but my particular blog is a DWI defense lawyer blog, and as far as the blog is a tool to attract clients, not necessarily what prospective clients want to hear.

But then again, I’m my own boss, so I can say what I like. There are a few ‘DWI Law Firms’ in Austin, where the client’s case gets assigned out to one of several associates to handle. Some of these firms have DWI blogs as well. And I doubt that if I worked for someone else that I would have been allowed to post such an entry to ‘the company blog’.

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Austin Police Department has suspended an officer for 10 days, ostensibly for excessive force:

Detective Joseph Lorett has been suspended for 10 days after video from another officer's car shows he kneed the suspect, who was facedown, in the head and used profane language.

"What I seen was more force being used than necessary and that was my biggest problem there," said Assistant Chief Sam Holt. "We tell our officers to treat people the way they want to be treated, and under normal circumstances, profanity is not something we would normally use."

Thus my use of the word ‘ostensibly’. See how they try to soft peddle this incident as… just ‘using profanity’? And, from what I can tell, swearing at someone (as you assault them and send them to the hospital) breaks the Golden Rule.

More from the MSNBC story:

Other officers on the scene described the suspect as "cooperative" and not resisting arrest. The videotape shows one officer attempting to handcuff the suspect when Lorett approaches and knees the man in the face. As a result of the incident, the suspect required hospital treatment and suffered facial and orbital fractures. [Emphasis added]

"From what I could see (on the videotape) at the time (the suspect) was hit, he had moved his arm, and that may have given the officer the reason to believe he needed to use his knee," Holt said.

Ridiculous. It’s not even soft peddling; it’s just making up excuses. If the officer was justified in using the force he used, then he was justified. (Tautological, I know.) So then don’t suspend him. 

On the other hand, if the allegations are found to be true – enough say, to support a suspension –then 10 days is less than a slap on the wrist. Anyone doing this while not wearing an APD uniform gets indicted for Aggravated Assault.

What would a reasonable punishment be? Let’s see. This same officer was previously suspended for five days for fishing on the job. 

Hmmmmm. Assaulting an unarmed civilian with no provocation is twice as bad as ripping off the taxpayers.

You know what? Now that I’ve bothered to type this all up… I’m thinking it’s time for an open records request. More on this later.

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John McCain, speaking in Wisconsin after a primary win, giving us all some basic lessons in conservatism, attacking his likely general election opponent who, in his words would likely…

[R]eturn to the false promises and failed policies of a tired philosophy that trusts in government more than people.

To which Doug Berman asks, “Aren't extreme sentences and mass incarceration” exactly that?

I cannot think of a more fitting setting in which we see, year-in and year-out, politicians promoting "false promises and failed policies of a tired philosophy that trusts in government more than people."

Make up your minds people. Do you want the government telling you what you should and shouldn’t do, or not?

[Hat Tip: Pete]

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From Wednesday’s Austin American Statesman, Sheriff defends allowing immigration officials to have office at jail:

Travis County Sheriff Greg Hamilton encountered sharp criticism and a smattering of support Tuesday for his decision to allow federal immigration agents to establish an office at the Travis County Jail.

At two public forums, Hamilton defended the decision, saying the sheriff's office is simply allowing U.S. Immigration and Customs Enforcement to use a side office in a jail in which its agents have been working for 30 years. He denied the charge that the sheriff's office is enforcing federal immigration law or facilitating racial profiling.

"I take offense to (critics) saying we're racial profiling," Hamilton said. "This is a public safety issue."

There are several issues in play here, but the one that interests me the most is this: how does the Travis County Jail (or I should say Sheriff’s Office) make the initial determination that someone is – or may be – an illegal immigrant?

As I’ve pointed out before, criminal defense lawyers in Austin as a group have probably all had the occasional experience where their client has an INS hold on them, even though they are an United States citizen because of their last name.

Surname profiling (i.e., a ‘hispanic’ surname leading to an INS hold) is a more accurate phrase perhaps than racial profiling, but it is unacceptable. Period.

I don’t care if it only takes a few hours, or a few days to ‘clear up the problem’ and release the hold. Any extra time incarcerated because a law enforcement agency thinks you might be here illegally is unconstitutional.

One last thing: the great thing about taking this angle on the argument is that you can bypass all the idiotic arguments made on the other side, for different reasons. I feel certain that the super majority of the public in Austin would be horrified to know that such a thing can happen – and would oppose ICE moving into the jail, on this basis alone.

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So, Sally Field didn’t actually say, “You like me, you really really like me”…but

It does feel good to have been called out by a few folks for my light blogging recently; since you asked, I’ll try to do better.

Update: Fantastic.  The Texas Tornado (mis)characterizes this post as 'a promise to blog more'.  Fine.  I'll get back at it.

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(…well, some of them may be celebrating more than others, depending on how close they practice to New York, but I digress…)

The New York Football Giants beat the (previously) unbeaten Patriots tonight in Super Bowl 42. Great game especially measured by Super Bowl standards – they’re usually blowouts.

And a doubly great game for anyone that’s a fan of underdogs. And criminal defense lawyers, by their very nature, have to be fans of the underdog. After all, the deck is stacked against us.

• We are up against an opponent with vastly superior resources (the Government).
• The Presumption of Guilt is difficult to overcome.
• Long story short, when the client walks into our office for the first time, we indeed are the underdog.

One of my favorite speakers at criminal defense conferences around Texas is Gerry Goldstein. He routinely gives what has to be the greatest pep talk to criminal defense lawyers at the Rusty Duncan seminar.

I won’t try to describe it; if you’ve heard it before, you know what I mean. It makes you want to go back to the office, grab all your files, look for the most hopeless case you can find and immediately set the thing for jury trial. To heck with pretrial conferences, and negotiations, it’s gonna be a Not Guilty.

Somehow, tonight’s game had a similar effect. My wife and I both had to suppress a spontaneous loud cheer (sleeping 18 month old twins just one room over) when Plaxico Burress caught that touchdown to put the Giants ahead in the final minute.

Neither of us are Giants fans. But there’s just something about underdogs.

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