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

The political landscape is shifting. Perhaps slowly, but the numbers don’t lie.

The first elected official who ever made the case to me for legalizing gay marriage — and maybe the last, come to think of it — was Jesse Ventura, the former governor of Minnesota…

His libertarian philosophy extended to social issues, on which Ventura, who counted gay men among his closest aides and friends, said government had no business intruding.

As the governor told me then, he didn’t care what the gay couple next door were doing in the privacy of their home, including hanging up a marriage certificate, just as he didn’t think anyone should pester him about keeping a gun in his nightstand.

From last week’s NYT Magazine article “Queer Developments”, by Matt Bai. Same source, the percentage of respondents, by age, who agree that not allowing same-sex couples to marry is discrimination, by age:

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Starting with a little free market theory, let’s assume that he who builds the best mousetrap will eventually dominate the mousetrap industry. (I don’t insist that this is so; just throwing it out there to start the post.)

It follows therefore, that in the service industry, the better services you provide, the more customers will come your way. Surely then, the best way to measure the worth of a lawyer is by the number of his clients.

From a Houston Chronicle article on overworked defense lawyers comes this line:

Some felony cases are resolved in minutes.

It’s a true statement, sad but true.  I actually can't tell if the author of the article is using the factual accuracy of the statement to justify the result.  According to the article, one lawyer in Houston has accepted representation of 360 felony cases or more, every year, presumably for years. In a recent post, “It All Adds Up To Incompetence”, Houston defense lawyer Paul Kennedy breaks down the math:

There are 52 weeks in a year and five working days in a week. That's a maximum of 260 days at the courthouse -- not counting holidays. That means that [this lawyer] accepts, on average, at least 1.3 felony cases a day, every day. There is no way a competent attorney can provide meaningful representation to his clients working that type of case load.

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George Mason University School of Law Assistant Professor Neomi Rao writes a Wall Street Journal op-ed piece suggesting questions for recent Supreme Court nominee Sotomayor’s confirmation hearings. She notes that:

[A] great deal of law is made (and unmade) when the court interprets statutes…

Statutes are enacted through a difficult constitutional process. They require passage by the House and Senate and the president's signature.

Justice Antonin Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning. Justice Stephen Breyer has argued, to the contrary, that judges should interpret statutes pragmatically to promote good consequences.

Ms. Sotomayor needs to identify where she lies on this spectrum.

If it’s not obvious out of context – or from the fact that this is published in the WSJ – read the whole thing, and you’ll easily conclude that Rao favors the Scalia model.  Not surprising for a former associate counsel and special assistant to George W. Bush.  The closer you are to the Scalia portion of the “spectrum” the more worthy you are of confirmation.

“Follow the plain meaning” – makes sense, judges are there not to make the law, but to interpret it… we all learned that in third grade.

Let’s back up however. What question was it that Rao thinks Sotomayor should be asked, where her response should be the Scaliaesque “plain meaning” answer?

The question itself, an ellipsis, and the Scalia portion of her answer, repeated for emphasis, follows:

What is the court's role when interpreting ambiguous laws?

… Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning...

If a nominee is asked how they should interpret an ambiguous law, and they seriously respond “by following the plain meaning of the statute”, they should be disqualified on the grounds of stupidity.

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“Helio Castroneves, you’ve just been acquitted of Federal income tax evasion charges, what are you going to do next??”

“I’m going to win the Indy 500!”

Congrats.
 

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So said Ally Sheedy to Matthew Broderick around the 2 minute mark of this clip in WarGames, as he hacks into the school’s computer and changes his F to an A.

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99% chance this turns out to be (a) bogus or (b) no different than anywhere else, but:

A study commissioned by the Spanish government to monitor that country's air quality has reported what most European travelers already knew: Their entire country is just one enormous coke den. Like, you can breathe it!

Reports MSNBC:

A new study has found the air in Madrid and Barcelona is laced with at least five drugs - most prominently cocaine.
 

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From tomorrow’s Wall Street Journal headlines:

Premier anti-“Drug War” crusader Pete Guither wants to banish the idea that the U.S. is fighting "a war on drugs," a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

Guither said Wednesday the bellicose analogy was a barrier to dealing with the nation's drug issues.

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Houston lawyer Tom Kirkendall figured that since the first thirty years of his law practice hadn’t provided him with the opportunity to watch one federal judge sentence another one to prison that he ought to carve out some time to go watch today’s Samuel Kent sentencing. Some snippets from Tom’s report:

We also learned tidbits of information that likely would have been already been revealed had Judge Vinson not maintained such tight control over information…
 

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From It’s A Complete Outrage:

Lieutenant Daniel Choi, a founding member of Knights Out, an organization of out lesbian, gay, bisexual and transgender (LGBT) West Point Alumni, received a letter from the Department of the Army on April 23, discharging him from the Army due to his sexual orientation…

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Oooooops. I got this one wrong in my last post. Here’s the incorrect part:

Worst case scenario for stealing merchandise under $10 -- Usually the answer would be a Class C misdemeanor, up to a $500 fine and no jail time possible, but… Enhanced with two prior thefts in Texas? State Jail felony, up to two years and a ten thousand dollar fine. Enhance that with two non-theft pen trips, three strikes you’re out, 25 to Life. (If you think I’m exaggerating, ask Leandro Andrade about his $153 theft. You did ask for worst case scenario, right?)

I’m cringing simply from reposting that; it’s just wrong, wrong, wrong. Houston defense lawyer Mark Bennett emailed me a few hours after the post went up:

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From my stats package…

The blank in a criminal case is beyond a reasonable doubt -- Uh, blank = standard of proof?

Unethical undercover tactics -- SCOTUS has already answered this: there are none, that matter anyway…

What charges can revoke someone while on probation for posession of marijuana in Texas? -- Usually not traffic offenses, but anything, that is to say, everything else?

Worst case scenario for stealing merchandise under $10 -- Usually the answer would be a Class C misdemeanor, up to a $500 fine and no jail time possible, but… Enhanced with two prior thefts in Texas? State Jail felony, up to two years and a ten thousand dollar fine. Enhance that with two non-theft pen trips, three strikes you’re out, 25 to Life. (If you think I’m exaggerating, ask Leandro Andrade about his $153 theft. You did ask for worst case scenario, right?)

Weed appetite suppression -- well, the popular rumor/myth/scientific fact is just the opposite, but OK…

Why can't I do well on tests – Dunno, but should I be concerned that my site come up for this query?
 

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Or should I say Happy Father’s Day, because what other wish could a dad have than a great mother for his children?

My wife took our two boys to Big Stacy park today (distinguishing it from Little Stacy Park just to the north, pronounced “Yittle Stacy”, and from “Tiny Stacy Park” which exists, as far as I can tell, only in their two-and-a-half year old imaginations).

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Lose a couple of elections and a senator and the even the muckety-mucks in a party will start publicly talking about change. Unfortunately, the Republicans are so married to some of their bad ideas that they are quite possible missing the boat. From SL&P:

[F]olks on the right often assert that the GOP is the only party truly committed to the principles of "life, liberty and the pursuit of happiness."

When I hear that claim, however, I wonder how it squares with modern Republican support for the death penalty (which ends life), and for long prison terms and drug prohibitions (which severely restrict both liberty and the pursuit of happiness).

I find vocal GOP support for the death penalty, mass incarceration and the drug war especially jarring when leading Republicans complain about big government, bureaucracy and excessive taxing and spending — all these problems find particular expression, especially at the state level, in the modern operation of the death penalty, mass incarceration and the drug war.

While not predicting changes in official party positions anytime soon, and especially noting the lack of any clamor for these conservative ideals, Berman’s onto something here. If we don’t make substantial progress in drug war reform during a down economy, it’ll be a long time coming.

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A few months ago, Don Fitch started writing Your Blain on Bliss, and one of his first posts “Obama, Cigarettes and Cannabis” caught my eye:

Yet still, of all people, the President-elect is not able to summon the will to not smoke tobacco cigarettes. As much as he would like to quit, as much as Michelle and the girls want him to quit, he will presumably duck out of the White House, furtively avoiding his family and to the chagrin of his Secret Service detail, light up a cigarette.

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So you spend eight months listening to evidence in a federal drug conspiracy trial, and another two months deliberating, carefully considering the evidence and the judge’s instructions.

You convict one of the defendants of distribution of five grams of cocaine base (crack) but acquit him of (from PACER):

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Via How Appealing, The Montana Town That Wanted to be Gitmo:

Two years ago, Hardin, Montana, population 3,600, celebrated the completion of the state-of-the-art private jail capable of holding 464 inmates.

Convinced that it would provide steady employment for over 100 locals, as well as accompanying economic benefits, the residents financed it through the sale of revenue bonds and turned it over to a for-profit prison-management corporation.

On a 40-acre field at the edge of town where pronghorn antelope once grazed, they built it. But nobody came.

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On the heels of my latest Sharon Keller post, comes this gem from this month’s Texas Bar Journal under disciplinary actions: the State Commission on Judicial Conduct issued a public warning to Judge Gustavo Garza, justice of the peace, in Los Fresnos, Tx. What sorts of judicial No No’s could merit a public warning? Among other things:

Failing to inquire into the students’ or their parents’ ability to pay a fine or to provide them with the options of a payment plan, performing community service in satisfaction of a fine or court costs, or waiving the fine or costs after a determination of indigency;

Sounds like made-for-TV Podunk I’m-a-JP-and-I’m-here-to-collect-$$$ garbage. “Hey, I’ve just made a finding that you have no money, but since no one else gets community service in my court, neither do you…” What else?

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40 years from now (my best guestimate) we might see this story, “Death penalty bill headed to full Senate,” but with the word Texas instead of Colorado and the byline Austin instead of Denver:

DENVER—The Colorado Senate is set to vote on a measure to end the death penalty as they rush to wrap up this year's legislative session.

The measure (House Bill 1274) is expected to come up for a vote Monday, two days before lawmakers must adjourn.

The bill passed the House by a single vote, and another close vote is expected in the Senate.

Getting a bill through the first part of a bifurcated Congress is quite an acompishment, no matter the final result.  (Well, it matters obviously to those put to death while waiting for the other shoe to drop, but still, baby steps.)

There's a bill pending to abolish the death penalty in the Texas Leg, but it has a 0% chance of passing the House, never mind making it to the Senate for a vote.  And some defense lawyers and anti-death penalty advocates might predict four centuries not four decades for the Lone Star State to reach the same point, but then again:

The bill would take the $1 million now being spent to prosecute death penalty cases and use it to investigate cold cases. That would add seven employees to the state's cold case unit, which currently has only one investigator.

Sheesh. The centennial state only spends a million bucks prosecuting capital crimes – what is that? – every year? Not sure that would keep Harris County’s death penalty budget afloat for a day certainly not a week. (See 194 capital cases pending)

Is it possible that it will be financial considerations on the part of the general public that will eventually end government sanctioned killing?

[Hat Tip: Think Outside The Cage]

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Overwhelming immutable facts that tend to show the defendant is indeed guilty of the crime charged can lead to some pretty creative excuses. For example, defendant gives consent to search on tape and a baggie of cocaine is found in his right front pocket.

Extensive legal training isn’t necessary here. The client intuitively knows that unintentional possession is the only realistic defense, and so from time to time you’ll hear a lawyer in the courthouse saying, “Hey, my guy told me the I-was-wearing-someone-else’s-pants story…”
 

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On top of all the other afflictions that come with being rich – like paying more overall in taxes because they have more to start off with – the wealthy now have to deal with the guilt that comes from eating foie gras and driving Beamers during a recession:

More than half of affluent consumers say they feel "guilty" making luxury purchases in this economy, a survey of the most-moneyed Americans finds. Fewer this year also say they like to be labeled as "wealthy."

Of more than 1,500 respondents, 54% agreed they "feel guilty purchasing luxury goods in the current economic climate." Just 29% said they like to be recognized as being "wealthy," down from 35% a year earlier.

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I have installed an interesting application - BlogJet. It's a cool Windows client for my blog tool (as well as for other tools). Get your copy here: http://blogjet.com

"Computers are incredibly fast, accurate and stupid; humans are incredibly slow, inaccurate and brilliant; together they are powerful beyond imagination." -- Albert Einstein

OK – so that was actually the default post that popped up when I installed BlogJet – which I hope will help me overcome some of the problems I have when composing posts in Microsoft Word and then cutting and pasting into my LexBlog back end.

I almost said “wish me luck” – until I realized that if you’re reading this that it must have worked.

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