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

While the Constitution is in many ways a beautifully written document, the framers deserve no gold stars when it comes to how they phrased the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The conflict resolved by the Supreme Court in DC v Heller today arises from the ambiguity created by the frankly flowery language.

In a nutshell: Does the Militia preamble part of the amendment limit the right or not? If it doesn’t, why is it in there? (Because – say the Supremes – it’s basically an example of why it’s necessary not a limitation.)

If it is limited to militias, why does it speak of the ‘right of the people’? Doesn’t that sound like an individual right? (And wouldn’t that lead to an absurd result?)

I’m no gun nut, so let me say this from a strictly legal standpoint: Scalia’s majority decision striking down DC’s ban on handguns is much less tortured than Stevens’ dissent.  As usual, he comes off like a jerk, especially when describing the minority position.

But the dissenters have failed to convince me that ‘to keep and bear arms’ doesn’t mean what it sounds like it means.

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It’s the question criminal defense lawyers get asked regularly, by friends, family members, strangers on the train, etc.

The Houston Chronicle – or should I say reporter Mary Flood? – asked Mark Bennett “The Question” in this morning’s paper:

Q: What do you tell folks who ask how you can defend people accused of crimes?

A: How could I not? It's what I'm called to do.

People think if someone committed a crime and is not punished by the government, he got away with something. I can't help but think there is order in the universe and the bad things you do come back to you one way or another.

There are a lot of answers to "The Question" as I call it, with a capital T and a capital Q: How can you do this?

If I don't, nobody will. If I don't defend people who did something bad, who will defend the accused who didn't do something bad? We can't decide. If everybody felt the same way, then people who didn't do anything wrong could not be defended either.

It's a huge question.

A lot of the punishments the government metes out are much more severe than I think they should be. The government likes to put people in a box — with probation or jail or a coffin.

Mark hits all the highlights of “The Perfect Answer”, with a capital T and a capital P and capital A.

1. Karma’s gonna get you.
2. Somebody has to do it. Has to. Think about it.
3. To heck with guilty or not, fighting unjust punishment is a noble cause.

#3 might be my favorite. At least if we’re keeping this in that mythical cocktail party context where I’m being asked The Question. My goal in that situation is to turn the person around as quickly as possible. At least to get them to acknowledge #2.

It doesn’t take long before you get into the conversation and the person is shocked to find out that a person possessing a sweet and low packet’s worth of cocaine is subject to ten years confinement in the penitentiary, and all of a sudden they’re telling you, “Oh, well, no no no, I don’t agree with that…”

See? That’s what we do.

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“Ah. I see,” said the blind man.

When Scott prodded me earlier to redo the criminal defense related blog survey, he did it because he had run across Gideon’s post of recent public defender posts, recreated with all due Google Juice intended here:

a public defender
A Public Defender’s Life in Alaska
Abolish the Death Penalty
Arbitrary and Capricious
Between A Laugh And A Tear
Cook County Public Defenders Blog
Demonstrative Evidence
Doubtslinger
the Dream Antilles
Fifth Circuit Blog
Fourth Circuit Blog
Go West Young Tex
Indefensible
Indignant Indigent
Infinity Ranch
Ipse Dixit
Jay
Kansas Defenders
Kansas Federal Defender
Knit and the City
La Peine Forte et Dure
lawbabeak
MissTyrios dot com
Ninth Circuit Blog
Petition for Review
Preaching to the Choir
Rabid Sanity
Second Circuit Blog
Scoplaw
Sixth Circuit Blog
Swan Lake Samba Girl
Tales of a Public Defender Investigator
Tenth Circuit Blog
The Rural Bus Route
The Saucy Vixen on Life
The Underblawg
Third Circuit Blog
Woman in Black

Well the gauntlet has certainly been thrown down. Let me hear from those non-public defenders out there ASAP. (And yes, Gid, I know that’s not the whole list…)

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Last Fall the Texas Court of Criminal Appeals got some deservedly bad press for allowing the execution of a death row inmate to proceed because the appellate lawyers arrived at the courthouse door 20 minutes late.

Mind you, the defendant had not yet been killed – but his lawyers ran into some problems getting to the courthouse on time, and missed their deadline by twenty minutes. They called beforehand to let the Court know they were on their way, but apparently Sharon Keller was late for happy hour – or something, I forget the exact details – and at 5:20 p.m. they were literally shut out.

So, this morning they decided to fix the problem. They adopted the innocuously titled Miscellaneous Rule 08-101 which moved the deadline for filing a stay of execution or subsequent writ application to 48 hours before 6 p.m. on the scheduled execution date.

Excellent. Sounds like the problem is solved. Unless you take a moment to think about it.

A deadline is a deadline. (If that sounds almost tautological, you got me.)

All the court has done is move the goalpost. You can miss a 6 o’clock Wednesday deadline just as easily as you can miss a 5 o’clock Friday deadline. It’s the same thing.

To be fair, they threw this in:

Special Requirements for Untimely Petitions or Other Motions.

Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion.

Counsel is required to show good cause for the untimely filing.

OK. Admittedly, the fact that death penalty lawyers are now given a few extra hours to explain why they were late might make a difference some time in the future.

But as often as we execute people in Texas, who wants to bet that we will be reading future court decisions that reject a lawyer’s reasons for an untimely appeal because they didn’t prove that it was physciall, legally or factually impossible for them to make it to the Courthouse steps by 6 p.m.?

[Hat Tip: Kiele Linroth Pace for originally posting about the new rule on the Austin Criminal Defense Lawyers ListServ]

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Keeping up with all the new criminal defense blogs popping up can be quite the chore sometimes. It’s well worth the time and effort, but I can’t tell you how many times I run across someone that’s been posting for awhile that I’m just now running across.

Got a request from Simple Justice to run another Criminal Law Blog survey similar to the one I did last year. The results came in two parts and were published in June of ’07. Although originally conceived as a method to rate the “Top 10” blogs, I ended up listing 23 blogs over the two part results posts.

I’m going to do it a little differently this time around. To heck with a rating system, or a Top 10, or Top 100. Just send me the name and URL of every good criminal defense type blog you read regularly or subscribe. And of course, don’t forget to tell me who you are. Everyone will get listed.

You could tell me just to count everyone in your blogroll, if you must, but let’s face it – blogrolls get a little stale. Do me a favor and cull through the best of them, by which I mostly mean those that still publish somewhat regularly. 

You can leave a comment on this post, or better still just email me at jamie@austindefense.com.  Bonus points – which to be perfectly fair are worth nothing except they’ll help me compile this list – are given to folks who mention that I am running this survey on their own blogs. (Don’t forget to email me and let me know you’ve done that.)

I’ll post the results in 2 weeks, and depending on how fast and furious the responses come in, possibly sooner, and possibly after that as well. How’s that for a really strict set of rules and guidelines. 

As always, professor blogs, law student blogs, and yes those oh-so-few prosecutor blogs are being sought after too, so give me a shout out, and let me know what you’re reading out there.

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Or at least this is the first time I ever noticed someone Googling “Blawgosphere”.

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I see that my buddy and noted Texas defense lawyer Mark Bennett is speaking at Center for American and International Law CLE called “The Mind and Criminal Defense”. It’s a one day course on Capital Mitigation and it sure looks interesting, but unfortunately it conflicts with my schedule.

Other defense lawyers – especially those that do death penalty litigation, which I do not – should seriously consider attending if at all possible.

Bennett is giving a talk on “Free Will: What It Is and What We Can Do With It”. I wonder how he feels about being billed as Mark Bennett, Esq.

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Hat Tip: Simple Justice 

At least he ends it with the line:

I'm fine with using DNA to find people innocent it they're truly innocent. I just want you to know that.

I’m sure they’re happy to have your permission to do that, Senator.

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So the Celtics celebrated another championship the other night, their first since 1986. I wasn’t nearly as bitter this time around.

True, they didn’t beat the Twin Towers this time – Akeem Olajuwon and Ralph Sampson – my high school heroes, but the real reason for my lack of interest is that I haven’t paid attention at all to the NBA in years.

However, Pete at Drug WarRant reminds us all of what happened after that last Celtic championship. They drafted Len Bias, who overdosed two days later. Tip O’Neil, D-Boston, was Speaker of the House. I won’t rehash Pete’s excellent original analysis of the situation, but suffice it say that yes, this incident was in large part responsible for such tragedies as mandatory minimum sentences in cocaine cases, the 100-1 crack to cocaine ratio, and basically the unreasonably long sentences still meted out in federal drug cases.

Democrats wanted to show their constituents just how ‘tough on crime’ they could be, so political expediency trumped thoughtful analysis, and over two decades later the U.S. leads the world by far in incarceration.

And just think. If my 1986 Rockets had beaten Bird, Parrish and McHale? Boston would have had a different place in the draft, and probably wouldn’t have selected Len Bias. Amazing what random chance can do to an entire criminal justice system.

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Houston criminal defense lawyer Stan Schneider left a series of comments on former Harris County District Attorney candidate Kelly Siegler’s post There’s No Such Thing As ‘Closure’ over at Women in Crime Ink. His last comment in the thread ended with:

Remember - it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison.

To which Levi Page, administrator and message board operator of the War On Crime blog, replied:

Well I disagree, with that last line "it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison."

Those 9 guilty people will be let out and most likely continue being a criminal, especially if they are a sexual predator.

Do the math.

A fine point Levi, even if not justifiable under our system of laws, because it illustrates a criminal defense lawyer’s worst fear of how a juror may literally mathematically calculate the effect of their decision.

Take a 12 person jury deliberating on an aggravated sexual assault of a child case. They know – instinctively, even if it’s not discussed openly – that there are 4 possible outcomes:

1. Innocent defendant is acquitted and goes home.
2. Innocent defendant is convicted and goes to prison.
3. Guilty defendant is acquitted and goes home.
4. Guilty defendant is convicted and goes to prison.

Options #1 or #4 are everyone’s preference. No jury wants to be involved in a case with either a #2 or a #3 outcome.

But they’re not sure. Not sure whether the defendant is guilty or not. Unsure of his innocence or his guilt, surely an internal debate on which is worse - #2 or #3 – starts in their mind.

And this is the crux of Levi’s argument. Let’s do the math.

Option 2: Innocent person is convicted and sent to prison. One person unjustifiably suffers horrible consequences. 

Option 3: Guilty sexual predator is initially ‘caught’ and accused, but skates. He not only goes home, but feels even more impowered to continue violating innocent children, again and again and again. Many people unjustifiably suffer horrible consequences.

Even if you throw in the innocent defendant’s friends and family members to up the number of wronged persons in Option 2, that has to be counterbalanced by an equal number of friends and family of the children who will be preyed on in the future. 

I’m not saying this happens in every case, or is discussed out loud in the jury room when it subconsciously enters the thought process. 

But taking Levi’s argument to its logical conclusion? It’s better that one innocent go to prison than one guilty person goes free. One freed guilty person will continue to victimize several future innocents. Accordingly, even a one to one ratio of innocent to guilty in prison is an acceptable rate.

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Imagine if elected official and media pundits were focused as much on the rising US prison population as they are focused on rising price of oil.  But, perhaps I expect too much from elected officials and the media when I hope they can be as concerned about human liberty in America as they are concerned about the cost of crude.

That’s from Doug Berman, commenting on the latest Justice Department report on overcrowding the US prison population.

For the full data reports, check out these links: Prison Inmates at Midyear 2007 and Jail Inmates at Midyear 2007.

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Let’s say you want to print out Subsection (i) of Section 13 ‘DWI Community Supervision’ of Texas’ probation statute (Code of Criminal Procedure 42.12) that deals with when you do and don’t have to install an ignition interlock on your vehicle.

Here’s a money saving tip:

Make sure when you highlight the relevant section that you change the page range from ‘All’ to ‘Selection’ before you click ‘print’. Otherwise you may print out all of 42.12.

I’d hate to see anyone waste about a hundred pages of paper. Texas sure does have a very lengthy probation statute, doesn’t it?

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…I’d be emailing Robert Guest and asking to join the Kaufman County Criminal Defense Lawyer’s Association. 

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