A few kind folks have linked to my little Criminal Law Blog survey in the past few days, and I’m still getting some answers dribbling in. I’m going to cut it off sometime Friday night, do the calculations and post results over the weekend.
Four Austin Police officers in the news recently for improper use of Department computers received their punishment last Friday, ranging from 5 to 45 days leave without pay and in some cases a demotion.
The allegations involved looking at porn or “other inappropriate material” on the internet or through email, and that frankly sounds like something that should be punished, and harshly at that. But let’s delve a little further and take a look at the cases individually.
According to the Austin American Statesman article:
In the most serious case, Detective Troy Brown was suspended for 45 days and demoted to the rank of officer for accessing prohibited, sexually explicit Web sites and e-mail accounts with his city computer... Brown accessed the sites between November and March…
Sgt. Troy Officer received a 30-day suspension for viewing pornographic Web sites around Christmas, when Stribling said "nothing was going on at the office, he had a lot of downtime, and he ended up doing something wrong." Officer agreed to remove his name from a list of candidates to be promoted to lieutenant.
Assuming that the newspaper reports of the offenses were at least somewhat accurate, the punishment probably seems to fit the crime. But how about the other two officers?
According to Jordan Smith’s column in this week’s Austin Chronicle “Porn Punishment at APD”:
Slater… was demoted and given time off for spending nine seconds looking at a personal ad on Craigslist. Whether the ad was racy or sexually explicit is in dispute, since it’s no longer posted and the city was unable to come up with it…
The case against Hawkins is even more questionable. According to the disciplinary memo…Hawkins received a “sexually explicit email” with “pornographic images” that were sent to his work email, which Hawkins then forwarded to his personal, home email… he never looked at it at work.
Rather, he opened it, realized what it was and immediately closed the email, sent it to his home email, and replied to the sender, saying that no emails like that should ever be sent to a city computer…The email in question did not contain anything illegal.
Slater was suspended without pay for 45 days… for 9 seconds worth of looking at an ad on Craigslist? And we don’t even know what kind of ad?
As for the last officer, I know I’ve clicked on emails and been surprised to find out what the content is.
Yes, I use spam filtering, and yes, most of the time I can tell when an email is some form of spam, whether it’s porn, selling Viagra, hyping some bogus stock, or a letter from a former Nigerian prince who desperately needs my help to deposit $3.5 million in my bank account.
But, even spam filters and avoiding emails based on the subject line doesn’t make me immune to getting tricked. Part of the problem is that I have at times accidentally not opened legitimate emails, because my ‘personal’ spam filter overlooked it.
The overly harsh punishments meted out to the second two officers were most likely affected by the misdeeds of the first two. From a PR standpoint, APD didn’t want to look like it was allowing its employees to surf the internet for inappropriate or sexual content. So it punishes anyone and everyone who might have done ‘something wrong,’ to avoid looking like it coddles the serious offenders.
Unfortunately, this is also how our current criminal justice system works as well (this case not being criminal, of course). Legislators envision the worst possible scenario that any particular offense or crime could be, and then make that the minimum punishment…just to be sure.
The statute of limitations does not preclude the State from prosecuting an individual just because “X number of years” has passed since the date of the alleged offense. I start with that, because as a practicing criminal defense attorney, I find that people think that’s what it means.
The statute of limitations merely requires the State to file a formal charging instrument against the defendant within a certain time period. In Texas, the statute is 2 years for all misdemeanors, at least 3 years for felonies and sometimes more. (also see: more info about specific time periods for the Texas statute of limitations.)
Let’s use an assault arrest in Austin, Texas as an example.
If it’s a misdemeanor assault, the statute of limitations is 2 years. The Travis County County Attorney’s Office prosecutes misdemeanors, so they have two years to file a complaint and information at the Travis County Clerk’s office charging you with misdemeanor assault.
A complaint is a sworn document in which someone states under oath that they have “good reason to believe” that you committed the offense of misdemeanor assault. The information is the formal charging instrument, and for all intents and purposes is usually an almost verbatim copy of the complaint.
Once these documents are filed, the statute of limitations is “tolled”; that is, it stops running.
So, hypothetically speaking, if the prosecutor files the complaint and information in the 23rd month after the assault is alleged to haave happened, they are not required to take your case to trial in the next month. (If only it were so, because that would almost always be a practical impossibility for them.)
The case would then run it’s normal course, with all the resets and continuances for discovery that happen in any criminal case.
If it’s a felony assault, the statute of limitations is 3 years. The Travis County District Attorney’s Office handles felonies, so they have 3 years to take your case to a Grand Jury for indictment. Again, if you were indicted in the 35th month, the statute stops running, and the case could drag on well past 3 years after the date of offense.
Now, as a practical matter, this doesn’t happen very often. But, again, as long as the state filed the charging instrument, either an ‘information’ for a misdemeanor, or got a Grand Jury to return an indictment, the statute of limitations no longer applies.
For a jury to convict a defendant of possession of marijuana or any controlled substance, the State must prove more than the defendant’s mere presence near the contraband.
As a criminal defense attorney, however, you can’t just take this concept for granted. After all, he wouldn’t be your client in the first place, if he hadn’t been…
What this cries out for, is a good common sense example that every venire member can understand immediately. And here’s one I learned a long time ago (I don’t remember from whom, or I’d give them credit).
Pick a potential juror and tell him a story. Start with the example of someone who is guilty. Then tweak the facts until you come up with a not guilty.
Attorney: Mr. Juror, let’s say that your neighbor decides to take some marijuana over to a friend’s house. He puts a baggie of marijuana on the passenger seat of the car, and drives to his friend’s house. On the way, he gets stopped for a traffic violation, and admits to the officer that the marijuana is his.
Now, even though he was never seen in physical possession of the marijuana, you would agree that if the State proved everything I just said to you, that would probably end up with a guilty verdict?
Juror: Yes, I suppose so.
Attorney: OK, good, we agree. Now let’s say his friend lives in another State, and he decides to mail him the marijuana. Same facts, but this time he places the marijuana in a plain unmarked package, and takes it to FedEx to mail it. He gets caught before he gets there, and once again the State brings you good solid evidence of everything I just told you. Still guilty, right?
Juror: Yes, still guilty.
Attorney: OK. Let’s say this time he actually mails the marijuana. The FedEx employee takes the box from the delivery van to the front door of his friend. The police swarm in (for whatever reason) and stop the FedEx carrier before he can get to the door. The FedEx driver was actually in physical possession of the dope. Why is he not guilty?
Juror: Well, he didn’t have any way of knowing what was in the box…
Obviously, I can’t predict the actual answers here, and if the guy you picked out doesn’t come up with it, move down the row until someone does (they always do).
Then reinforce that answer by saying, “Not only did he not have any way of knowing, but the State didn’t bring any evidence to show that he knew what was in the package”.
Won’t necessarily do you much good when your client has it on his person, but can be great material to get potential jurors talking when your client was arrested in a vehicle, or even in his own home.
When a defense lawyer tries a criminal possession case, the jury must be asked about the “intentional and knowing” element of a possession charge during voir dire.
The reason? Unknowingly possessing contraband is not criminal.
Dan Browning of the Minneapolis Star-Tribune wrote an article today about the acquittal of a computer consultant on possession of child pornography charges in Federal Court. (Hat Tip: CyberCrime)
There was never a dispute about whether the defendant possessed the computer, nor whether images of child pornography were found on the computer. The defense, however, hammered on the government’s inability to prove that the defendant knew that the images were on the computer, or intended them to be there:
Sarah Snider, the forewoman of the jury… said jurors examined the computer logs and discovered that Furukawa had downloaded thousands of files. The child porn files were "few and far between," she said. "It's our belief he wasn't looking for it."
DeAnn Roy, another juror, said no one disputed that the images were illegal child porn. "We just didn't see proof that he knew, or that he willingly had that on his computer."
Good job done here by the defense lawyer Daniel Gerdts in properly focusing the jury on holding the government to its burden. Too often jurors believe that simply possessing something is a crime, without forcing the State to prove that the defendant knew he was in possession of something illegal.
[Also see my thoughts on Jury Selection and the Unwitting Possession Defense.]
My wife is a fan of what I call “Forensic Files, etc.” – meaning all of those true crime TV shows that have popped up over the last 5 to 10 years or so. (Despite being a criminal defense lawyer, I can barely stand to watch those shows myself.)
I walked by the living room as she was watching the end of last night’s Dateline NBC “Scenes from a Murder” episode about an ultimately still unsolved investigation of a young woman’s death.
I’ll quote the part that caught my ear later in the post, but for starters, here’s my wife’s recap of the events.
Young woman found dead. Years of investigation with multiple investigators lead to suspects including: the fraternity boyfriend, the neighbor (eventually incarcerated for a different violent crime), and even the brother, father and mother are accused of complicity at one point, albeit by a disgruntled out of town police officer who became upset when he was no longer being considered for an acting/directing role in a possible movie.
Bottom line: unsolved violent crime. Unlikely to ever be solved.
Now here’s what caught my attention. As Keith Morrison, the narrator, is wrapping up, he says:
As for [the Sheriff], he says he’s determined still that someone will be charged with the murder of Jennifer Morgan.
That someone be charged. Not that the killer is finally found. That “someone be charged”.
And now to innocents in prison.
The feeling that someone must pay, especially for gruesome and violent crimes, is so strong, that it often leads police, D.A.’s, and juries to feel compelled to “solve” a murder with a ‘Guilty’ verdict.
After all, we know someone did it, right? If no one is convicted, justice has not been served.
How many murder investigations have actually lead to indictments by prosecutors of “the only person we know who to charge”? Or indictments of “the spouse because they are the best suspect”?
Follow that up with a trial where the jury is given no other option as to who will ever go to prison for this crime…and you end up with defendants convicted on extremely shaky evidence.
It’s probably just a typo, but when I check stats, I see a lot of searches for “statue of limitations”.
Click here for information on the “Statute of Limitations”.
This is a survey post. I’m asking my readers to email me (jamie@austindefense.com) and let me know which blogs they subscribe to that are criminal defense related.
These can be:
It’s not necessary that the primary or only focus be criminal justice/criminal defense. I’m looking for new blogs to add to my (and your) readers with this survey.
I will post an update with links to every blog sent to me - including, of course, your own, as well as a list of which blogs are most read by my readers. (I say “My readers” because I recently passed the 30,000 unique visitor mark in 6 months of blogging, and currently my Feedburner Stats show me at an average of 76 Circulation over the last 30 days.)
If anyone uses FeedDemon as their newsreader, I’d really appreciate an export of your feeds. This can be done by clicking File/Export Feeds/All Folders/OK, then save to desktop and forward the OPML file that is created as an attachment. I’m sure there’s a way to export all feeds in other readers, but I can’t give you such a blow by blow description.
If I get a decent amount of responses to this post, perhaps I can try this every 3 to 6 months or so, and criminal defense/prosecutor bloggers will have a good source for new criminal law blogs.
Don't forget: all repsonders will get (at least) one backward link to their own blog, or static webpage. Thanks in advance.
[Update: Hat Tip to Anne Reed for being the 'first responder'. Keep 'em coming folks.]
Question (from an email): Can a person be charged with theft (class b misdemeanor) if merchandise was not found on a person? Or is this considered attempted theft? If so what is the difference and maximum punishment for each?
Reply: Can you give me more details? (What happened exactly?)
Maybe I can give you a better answer that way...
More Details: (A theft from a place of employment.) actual merchandise was not found on this person, merchandise was found in trash in the back of store and person was going out the front door when this person was arrested and charged with theft. Would this be theft or attempted theft?
So could this person be tried for theft or would the charge have to be reduced to attempted theft?
Answer: Like most interesting questions this one has several layers to it.
First and I don't mean to be hyper-technical, but then again I am a lawyer...
Can they charge the person with theft? Well, not to split hairs, but 'they,' meaning the state, can charge someone with just about anything. The next 2 questions then deal with (a) what can they prove, and (b) is the evidence legally/factually sufficient?
What can the State prove based on these facts?
The definition of theft is, essentially, unlawfully appropriating property without the owner’s consent. Is taking merchandise off a shelf and sticking it in the trash proof of “intent to permanently deprive the owner of the property”?
Off the top of my head, I’m going to say that this would be very difficult for the State to prove at trial beyond a reasonable doubt.
As for attempted theft? I think they would have to show that the defendant intended to come back at a later time, or had some accomplice lined up in the wings to take it out of the trash and actually leave the premises with it.
Finally, as to legal sufficiency of the evidence… I would have no problem getting up and arguing to a judge for a directed verdict of not guilty on these facts. Whether it would be granted, or whether an appellate court would overturn a potential guilty verdict on appeal, would have to be determined on a case by case, very fact specific, testimony dependent analysis.
But, generally speaking, shoplifting is going to be very hard to prove and/or factually insufficient if the person doesn’t leave the store, or pass the point of sale without paying.
All in all, given your hypothetical, I think it’s a pretty weak case for the State. (And if this is not really a hypothetical, tell ‘the person’ to get a lawyer ASAP. Case could even be a negotiated dismissal without the need for a jury trial.)
I’ll get to the penalty range differences in a future post. The short answer is that an attempted Class B offense is a Class C (traffic ticket level) offense.
Chuck Lindell wrote an excellent piece recently in the Austin American Statesman:“For prison inmate a "not guilty" verdict did not mean freedom; State parole system can trump a jury's verdict with its own.”
In it, he highlights one of the biggest problems with Texas’ parole system: parolees sent back to prison after being acquitted of new charges against them.
Texas criminal defense attorneys are used to this, but it shocks most folks that find themselves caught up in Texas’ parole system.
Let’s start with the legal basis for it. A “Not Guilty” verdict means that the jury has found that the State failed to prove its case beyond a reasonable doubt. While there’s no exact percentage assignable to that burden of prove, it is undoubtedly higher than the “preponderance of the evidence” standard used in parole hearings.
So let’s say theoretically that a Not Guilty verdict meant that the jury didn’t believe that the State showed them a 95% certainty that a parolee was guilty of a new offense. That doesn’t legally preclude the Parole Board from determining that he is probably, or more likely than 50% guilty of it. (Never mind for now that some juries set awfully low standards for “beyond a reasonable doubt”.)
The Texas Court of Criminal Appeals has consistently upheld the backwards logic that allows the Parole Board to revoke acquitted and possibly actually innocent defendants. From a purely mathematical standpoint, the Court is correct that a jury verdict of not guilty doesn’t meet the necessary requirements of “collateral estoppel” and that the parolee can be revoked and sent back to prison.
But this should offend our collective notions of justice. The blogosphere has picked up this story and run with it. For other law blog commentary on this particular case see: Houston’s Clear Thinkers, TalkLeft, Eye Witness Identification Reform, Right Voices, Later On, Legal Juice, DebsWeb, All That In Our World.
Former NPR contributor Randy Cohen’s “Ethicist” column in this Sunday’s New York Times Magazine is titled “Work Search”. In it, he answers a reader’s question about the legality and ethics of workplace searches.
While noting that employers may have a legal right to search handbags etc., Cohen offers reasons why it still may not be the best policy:
To search someone is to treat him as if he were untrustworthy, if not dishonest.
That the hospital searches everyone mitigates this baleful effect slightly, because no employee is being singled out for special scrutiny.
But to mildly humiliate many does not eradicate the sting to each.
I wish more people could understand this effect when the issue of racial profiling comes up in the context of criminal arrests.
Some still proffer the illogical “If you’re not doing anything wrong, then it shouldn’t matter” argument while debating this issue.
Putting aside the “Never mind the Fourth Amendment” problem with that attitude for now, let’s acknowledge that it creates a bigger problem than it attempts to solve.
Subjecting one group of people to even “mild” but persistent humiliation breeds a natural disrespect, then fear, then hatred of law enforcement.
It’s pretty simple really. When a Government treats its citizens with respect, it will likewise receive respect in return.
Texas has no medical exception for possession of marijuana…but California does.
And living in the “California of Texas” – Austin – we have Whole Foods, Central Market, and of course, the “Keep Austin Weird” movement that was even featured on 60 minutes.
So I had to laugh when I read the San Francisco Gate article “Connoisseurs of Cannabis”. Subtitled appropriately “Like fine wine, growing medicinal weed has become so specialized as to inspire tastings and a new vocabulary”:
And if there is a center in the United States for this breed of maven, it is California, particularly the Bay Area.
In a region of wine and food buffs, where there is a constant quest for the best bread, cheese or olive oil, it's no wonder that marijuana, in its semi-legal status, has become a new frontier for expertise.
There are medicinal consumers who covet designer strains and varietals -- such as the one grown and harvested only by women in a remote northern county -- or who want organic products and say they can taste what soil or fertilizer was used and want to know the lineage of what they consume, as well as the expected effects.
Of course, the Federal Government is still spending your tax dollars on literally useless prosecutions.
[Hat Tip: Drug Law Blog]
In one of my favorite moments from Da Ali G Show, an ATF bomb sniffing dog trainer is asked when one of his pups alerts how he knows that the dog isn’t saying “This one definitely ain’t got a bomb in it?”
Well, when it comes to drug-sniffing dogs, how are they trained? The answer is the same as usual… Your Tax Dollars At Work: Drug Dogs From Around the U.S. in Arkansas for Training. Ever wonder how much it costs to send 200 dogs, and goodness knows how many more police and handlers and trainers to “sniffing school” for a week?
The article quotes the Vice President of the National Narcotic Detector Dog Association several times. Apparently not smoking marijuana helps you become spokesperson for such an organization, enabling you to unleash these perfectly clear explanations on the public:
Vice President of NNDDA Keith Wilkes said, "These dogs, especially the narcotic dogs every day there's no doubt there's a big war on drugs and this is a vital tool that we must use to locate these drugs."
and
Wilkes said, "We're able to go in and get the drugs out, in which case, obviously saves kids. Can't tell you how many kids and so forth from the narcotics before they hit the street."
Yes, these do appear to be exact quotes. Verbatim.
Most folks probably haven’t put much time and effort into thinking about how we got where we are today in “The War on Drugs”.
I find when discussing the potential benefits of decriminalization that people often have some vague and generalized idea that “there must be some sort of reason the stuff is illegal”. Sometimes it’s unstated; but you can tell that idea is there.
Well, there is definitely a reason. Or, perhaps multiple reasons, but that doesn’t automatically make them good ones.
Check out Roshan Bliss’ guest commentary at the Purdue Exponent today, 4/20/07, “Nation’s marijuana laws were founded in bigotry”:
Early in the 1900s, Mexico's political conflicts sparked a surge of Mexican immigrants into America's southwest region. Although marijuana already existed in various forms in the U.S., the new immigrants are credited with being the first segment of the population known for marijuana use. The practice also became popular in African American culture around the same time.
The popularity of marijuana among minorities made racism a powerful tool for the opponents of marijuana. Racist politicians used hate to push anti-marijuana legislation through.
One Texas senator claimed that "all Mexicans are crazy and this stuff is what makes them crazy." A 1934 newspaper complained that "marijuana influences Negroes to look at white people in the eye, step on white men's shadows and look at white women twice."
Media sensationalism put forward blatant lies and misrepresentations of marijuana that misinformed the public and stigmatized the harmless herb.
The San Francisco Examiner went so far as to claim that "three-fourths of the crimes of violence today are committed by (marijuana users)." As a result of the pandemonium worked up by politicians and biased media about the marijuana "epidemic," marijuana was made illegal at the federal level in 1937.
Yes, there are indeed reasons that marijuana was criminalized. And the more you find out about marijuana prohibition, the more you realize it has a shameful history.
First year law students are taught in Criminal Law that offenses usually include an “actus reus” and a “mens rea”; that is, a “bad act” combined with a “bad intent”. With only a few notable exceptions, such as traffic tickets or DWI/DUI, all criminal prosecutions require the State to prove that the defendant intentionally committed a criminal act.
Keep that in mind as we discuss Pierre’s personal story of how a trip to McDonald’s landed his friend in hot water.
Pierre’s friend had received a $5 bill in change at a parking garage. Later he and Pierre went to McDonald’s for a nutritious lunch and attempted to pay with that $5 bill. The cashier/manager marked the bill with one of those counterfeit pens, and declared it to be a fake.
After pulling another $5 out to pay, the two seat themselves in the restaurant to enjoy their meal. Meanwhile, the police are called, because that’s what happens when counterfeit money is detected. The friend is, of course, eventually questioned by the police:
The cop walks up to our table. “Sir, do you know this is counterfeit bill?”
“Well, I do now,” my friend responds.
At this point the cop holds the bill up the lights. I must say it was a pretty well made bill. “Sir stand up.”
“OK.”
“Place your hands behind your back.”
That’s right. This person was taken into custody, and escorted by two armed police officers out of the building. To make matters worse, he was only read his Miranda Rights after requesting that the officer do so. Now, he wasn’t taken downtown, and was released after 10 minutes or so of interrogation.
So what’s the big deal? Minor interruption and the police eventually did the right thing by releasing the friend, right? Well…
Why did the policeman ask whether he knew it was counterfeit? Because, obviously, unintentionally passing counterfeit bills is not a criminal act. And there’s no other way of interpreting the statement, “Well, I do now” as anything other than “I didn’t know when I gave it to the cashier.”
Sure, the criminal mastermind might be lying to the police, and more investigation is necessary. [This same mastermind just parked himself at a table waiting for the police to arrive after being alerted that his bill hadn’t passed muster.]
But, despite making the eventual correct decision to let the kid go, what two things did the police do wrong here?
First, and most obviously, they arrested the real victim of the crime itself. Handcuffing him is an arrest in this situation, and he’s the one who is out the $5, not Mickey D’s.
Secondly, and perhaps more importantly, the questioned him after the arrest (handcuffing) presumable about the incident. Had this actually been the culprit, and had they gotten a confession, the failure to read the Miranda warnings would probably have made any statements inadmissible in court.
So, from a common sense perspective (this probably isn’t the bad guy) and from a legal perspective (better to interrogate/ask questions before an arrest) the officer’s decision making process was thoroughly flawed. And, by the way, even ten minutes in handcuffs doesn't feel like a "minor interruption" when you are being investigated for a federal offense.
I’ve posted before about 20 U.S.C. § 1091 entitled “Student Eligibility” and its restrictions on Federal Student Aid based on marijuana and drug convictions.
The ACLU has recently taken up the cause, filing an appeal recently of a Federal District Court's denial to have that section declared unconstitutional. From the press release:
“The law’s purpose is to impose a second criminal punishment on students who have already served their sentences, which makes it unconstitutional,” said Adam Wolf, an attorney with the ACLU Drug Law Reform Project. “Judges must assess, not ignore, lawmakers’ intentions. All we ask is that the court consider the evidence.”
The legal basis for the challenge is that the intent of the Act is punitive in nature – and therefore violates the Double Jeopardy clause of the U.S. Constitution. The brief does an excellent job of quoting from the Congressional Record to back the assertion that the legislative intent was indeed punitive:
“[T]oday’s bill is intended to impose some accountability on those who use controlled substances.”
Users of controlled substances “get off scot-free…[W]e can begin to send the message to illegal drug users that they are no longer immune…”
“A couple of years ago we passed a user-accountability law…Unfortunately, we wound up with provisions that allowed judges to make a decision on a case-by-case basis…”
Goodness! Judges allowed to make case by case decisions on whether a marijuana conviction should be denied student aid? How about trying to imagine what America would look like right now, if we took college degrees away from everyone that had ever experimented with marijuana. (see, e.g., the 2002 Time/CNN Poll showing 47% of Americans have used marijuana, on page 3 of this article)
The legal hurdle for the Government’s lawyers, of course, is that they must argue that the denial of student aid is not intended to be punitive, or they risk that part of the law being struck down as an unconstitutional double punishment.
Common sense tells us that it is. And kudos to the ACLU for the good work in proving it. It will be interesting to see where this leads.
Everybody with any interest in a criminal defense attorney’s perspective on marijuana defense in Austin should go see Charlie Roadman give his second annual Marijuana for Musicians presentation at The Mohawk on Red River at 8:00.
Quoting my own review from last year’s talk:
Charlie’s PowerPoint presentation was both humorous and informative, especially for the lay public. He started with the narrative from the infamous Matthew McConaughey naked bongo arrest, taken right from the original Police Report in that case.
He went on to explain the process that defense lawyers go through when defending someone arrested for Possession of Marijuana. Throughout the presentation were excerpts from Police Reports and other tidbits from actual clients of his, along with tips I’d call “How to make your lawyer’s job easier if you want him to get you the best possible deal”.
I hear Charlie has upped the ante this year, and added even more to the talk. And you don’t need to be a musician to be curious about what your rights are…
Randy Barnett, currently a professor of Legal Theory at Georgetown Law, and former Cook County State’s Attorney prosecutor, writes an excellent piece in today’s Wall Street Journal “Three Cheers for Lawyers”:
The crucial importance of defense lawyers was illustrated in the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence…
Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done.
This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny.
Barnett also talks about how, as a prosecutor, he always analyzed cases from the defense perspective, in terms of the evidence, procedure, and credibility of the witnesses.
Good defense lawyers, of course, analyze their cases from the prosecutor’s perspective as well. Even though most cases end up in some form of a plea bargain agreement, even if it’s a reduction or dismissal of charges in return for community service, both sides must properly evaluate the relative strengths and weaknesses of their case.
And Barnett acknowledges the ugly truth about the criminal ‘justice’ system: that there is a human (and factually based) presumption of guilt. Since judges/prosecutors/defense attorneys know that in the end most folks are actually guilty as charged, it becomes easier for everyone to skip over the actual fact finding necessary to make such a determination:
While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.
And therefore, the continuing need for criminal defense lawyers. But it’s nice to hear it from a prosecutor’s perspective.
[Hat Tip: Philadelphia Criminal Defense Lawyer]
Question: 14 years ago I received a deferred adjudication for a misdemeanor.
Upon completion of my one year deferred adjudication, the case was disposed/dismissed. Because I did deferred adjudication, this means I do not have a conviction on my record. And, I'm in the process of submitting a non-disclosure of criminal records, however it has not been filed yet.
I am also in the process of completing a criminal background check for a future employer and I want to answer the questions truthfully to the question. They will be doing a background check for convictions (State or county).
There are 2 questions I must answer:
1. Have you ever been convicted of a felony or misdemeanor? To which I feel I can truthfully say "No" since I was not convicted.
2. Have you ever served time, been on probation, or currently serving a deferred adjudication? To which I also believe I can answer "No" since I did not serve time, I was not on probation as that term is defined, and I am not currently on a deferred adjudication sentence.
Because I'm worried about my background check results, I've run 3 separate checks, all which came back with nothing for convictions or anything else. I've had a police officer friend run my information through the county system where I was arrested and held, and they have no history of me being processed in the system.
Please advise if my answers to the above 2 questions are accurate. Obviously, if the question "Have you ever been arrested" was asked, I'd have to answer "Yes".
I don't know if I should voluntarily offer the information that I was on deferred adjudication 14 years ago, since that was not specifically asked. They may very well find an arrest record, but that was not asked and so I'm confused.
Answer: Some of this doesn’t actually lend itself to an easy answer, but I’m gonna give it a shot anyway.
For Question #1, “Have you ever been convicted of a Felony or Misdemeanor?” the answer is easy: No. Successful completion of deferred adjudication in Texas means you have not been convicted.
It’s Question #2 that becomes problematic. The part of the question that reads “been on probation, or currently serving a deferred adjudication” may imply that the employer thinks deferred adjudication is not probation. You yourself have characterized it as not probation “as that term is defined”.
I think this is inaccurate – defendants on deferred probation in Texas are indeed covered by Article 42.12 of the Code of Criminal Procedure – the community supervision statute. (We used to formally call it probation; now it’s “community supervision”.)
And you checked in with a probation officer once a month, the same way that folks convicted and put on probation do. You were subject to random UA’s, and assigned a minimum of 24 hours of community service. You were on probation, as that term is defined. You just weren’t convicted.
The worst case scenario here is that you answer the question in the way that you believe is honest; but the prospective employer finds out about the deferred, and thinks you were intentionally lying.
Perhaps you can call the Human Resources department, if it’s a big enough company to have one, and anonymously ask how someone in your situation should answer the question.
Finally, I’m glad to see that you are applying for the Motion for Non-Disclosure, because this is the long term solution for this problem. Eventually, when that is granted, non-governmental employers won’t have access to see that you were arrested, and you won’t have to deal with this tricky situation anymore.
The currently ongoing Conrad Black trial is the jumping off point for TIME Magazine’s recent article “The Benefits of Doubt,” which discusses the meaning of “beyond a reasonable doubt”. (Hat Tip: Anne Reed at Deliberations)
The article highlights a serious issue confronting all criminal defense practitioners: what does “beyond a reasonable doubt” really mean, and how do you convey that to a jury? Unfortunately, it is very imprecise.
…in practice, reasonable doubt may make convictions too easy. At least half a dozen studies have found that when the prosecution's case isn't airtight, juries often interpret "beyond a reasonable doubt" to mean, in effect, probably guilty.
In one study, prospective jurors said they would be willing to convict on a 60% chance that the suspect had committed the crime.
Sixty percent! And possibly as low as “more than fifty percent”, if the jury uses a “probably guilty” standard. That’s frightening.
I’ll post more soon on some effective voir dire/jury selection techniques for maximizing your chances that a jury will truly hold the government to “proof beyond all reasonable doubt”.
I haven’t yet seen the documentary “Damage Done”, but after reading the review in the Vancouver Sun, I just might.
Of course, it sounds like it will tell me what I already know:
More than 38 years after former U.S. president Richard Nixon officially started the War on Drugs, North America now has more drugs at lower prices than ever before; police corruption is largely the result of the insanely huge amounts of money that organized crime has to spread around; just as alcohol prohibition in the U.S. in the 1920s was responsible for creating gangsters such as Al Capone, so too is drug prohibition largely responsible for allowing organized crime to flourish today; and North America's huge appetite for illegal drugs doesn't come from addicts but from occasional users.
As the article points out, however, it comes from a different perspective. Instead of listening to life long Drug Policy Reform advocates, medical marijuana advocates, and the like…
Damage Done takes a much more subversive approach by talking to police officers and justice officials, the assault troops on the front lines of the drug war. As members of Law Enforcement Against Prohibition, their story is depressingly familiar: almost without exception, they started out as true believers in the war but ended up coming to the realization that they were just part of a drug enforcement industry that thrives on keeping drugs illegal.
Their message? Our current system of drug prohibition doesn't work and needs to change.
Here’s a link to the LEAP website, for those of you unfamiliar with the organization.
We will be hearing a great deal more over the coming days/weeks/months about Georgia Thompson, primarily because her case is now being investigated by Congress in the dismissal of US Attorneys controversy.
But the recent appellate decision by the 7th US Court of Appeals that not only reversed her conviction, but actually acquitted her and ordered her release the same day is perhaps more notable for what it says about our criminal justice system, and how juries react to “evidence” than it is for the political fallout.
The jury convicted Ms. Thompson of 2 federal felony charges: causing misapplication of funds, and participating in a scheme to defraud the State of Wisconsin of the right to honest services, supposedly because she was involved in awarding a government contract to a company, not because they deserved it, but because she knew they had made a legal political donation to a sitting Democratic governor. In other words, for steering the contract to the company on the basis of essentially a kickback.
Now, without regard to the political motivation for the prosecution in the first place, was there even one tiny flaw with the Government’s case? Well…
No evidence, none, zip, zilch, nada to indicate that Ms. Thompson even knew that the company had donated to the governor’s campaign. Nothing. Literally nothing. (And again, it was a legal contribution.)
Listen here to approximately minute 12:30 of the oral arguments, where the State’s Attorney is asked, right off the bat:
Judge: Is your opponent correct that there is nothing in the record to indicate that the lady was aware of any contribution?
State’s Attorney: Of contributions specifically, that’s correct…
Shame on the prosecutors for bringing such a case in the first place. No evidence is no evidence, smoke and mirrors not withstanding.
Human beings know that where there’s smoke, there’s fire, and too often this concept is applied by juries in criminal cases. The general public is probably unaware of how rare it is for an appellate court to not only reverse a conviction (say, because some evidence was improperly introduced, necessitating a new trial) but to actually acquit a defendant.
Ordering her immediate release is possibly unprecedented. And even further proof that the State’s case wasn’t just weak, but truly unjust.
We have to be able to rely on juries, however, to correct such blatant errors of prosecutorial overreaching.
Our jury system may be the best thing going, but this is pretty firm proof that juries wrongly convict more often than we like to admit.
From Scott Turow’s excellent Op-Ed piece, “Still Guilty After All These Years”, in yesterday’s New York Times:
The law has always feared the hazards of long-delayed prosecutions. The chief concern impelling limitations - that memories dim over time and that evidence is likely to become lost or dispersed - appears at first blush to be irrelevant in the face of today’s more exacting science.
If DNA can prove, within 99.9 percent certainty, that a defendant was the perpetrator of an unsolved rape, why not send him to prison? Yet what if his defense to the charge is consent?
Forensic science can often establish identity with near certainty, but it is not a time machine that can transport us backward so that we recapture every nuance of a largely forgotten event…
Statutes of limitations have also traditionally embodied a moral judgment that if a person has lived blamelessly for a significant time, he should not have the anxiety of potential prosecution hanging over him forever.
The practical reasons that Turow talks about, that is, the increased difficulty of mounting a defense for an innocent person, is important but it is the second reason that is more compelling still…
Should a man have to face charges for something he supposedly did more than 5 years before? 10? 20?
Who among us can say we’ve never “gotten away with something”?
Bearing in mind that all United States jurisdictions allow the Government a lifetime to prosecute murder, do we really need to extend the limits for prosecuting non-violent crimes?
…instead, they sentence people to prison.
So let’s just be honest about it, and start calling it the “War on Drug Users”, OK?
I have been reading your blog and The Wretched of the Earth's (by Poverty Lawyer 1) blog and I find both blogs very informative, easy to understand, and written by competent and organized minds! You have both had articles that taught me things about my case that I need to be concerned about. (Thank you for the complement.)
Summary of My Questions:
1) I got arrested for DWLS recently. I want this arrest, fingerprints, mugshots, etc. removed from all government databases. Does License Suspensions and Revocations Article 55.06--Texas Code of Criminal Procedure mean that there is no way for me to get this expunged, no matter what happens?
No. If you are acquitted, or your case is dismissed you will be entitled to expunge the arrest. (Since jury trials in DWLS cases are extremely rare, it’s more likely that the case would be reduced to a Class C traffic ticket, e.g. for whatever you were stopped for in the first place, or that the case would be dismissed outright, say in return for getting your license back in order, than to be acquitted.)
The section you are reading applies to folks who have their license suspended for DWI through the ALR process, but then have their criminal DWI case dismissed. In that scenario, the law allows you to erase the DWI arrest, but not the license suspension from your record.
2) If it is possible to get an expunction, how do I do it?
Assuming you qualify, you will need to file a petition to expunge the arrest and include all the government agencies that have those records in your petition. There are, of course, more steps after that. Frankly, you really need a lawyer to do this correctly. I’ll ask you to believe me, despite my possible “hire a lawyer” bias.
3) If I get a dismissal, I don't want any possibility that the case can be refiled. Is there any way to ensure that? Like by asking for a dismissal with prejudice?
Dismissals granted during the initial two year statute of limitations for misdemeanors are rarely granted “with prejudice”, meaning in theory the State is free to refile them. However, dismissals in most criminal cases are going to be by way of negotiated agreement. Therefore, the State rarely refiles cases that they have agreed to dismiss.
BACKGROUND: I was arrested in Travis County recently for Driving While License Suspended. I would guess you are familiar with this growing problem where people get convicted of not having insurance, then don't get the notice of the DPS surcharge, therefore don't pay it, and are suddenly arrested for DWLS. That's exactly what happened to me. There are more details that make this situation more of an injustice, but I will leave them out since I don't think they are relevant to my questions.
I am very familiar with this situation. In fact, to quote myself from another post on the subject, “…my guess is that at least half of my clients who come to see me for a driving while license suspended arrest didn’t know that their license was suspended.” This is, not coincidentally, what provides the basis for the defense in most DWLS cases, and therefore leads to a negotiated dismissal.Wayne Schiess, director of Legal Writing at the University of Texas Law School (as well as my teacher when I was there) has been blogging about some common sense plain English language revisions for jury instructions in Texas court rooms. I whole heartedly applaud any efforts we can make to turn “what the judge tells the jury about the law” into “something that reasonable people can understand”.
Who knows how many cases have mistakenly turned because a jury misunderstood the legal mumbo jumbo that is now quite frequently given to them?
I also agree with Schiess when he writes:
It's easy to poke fun at archaic jury instructions. Harder to rewrite them…
Read Schiess’ latest blog entries for some concrete examples of poorly worded instructions (as well as his efforts to come up with some well needed reform language).
Jordan Smith, author of the column Reefer Madness, writes an excellent piece in this week’s Austin Chronicle about Texas’ unreasonable parole system, and a pending lawsuit that seeks to change it.
The actual parole rate for Texas non-violent inmates is substantially lower than the “recommended” rate. Translation? Folks convicted of felony offenses in Texas are serving higher and higher percentages of their sentences, even when they accumulate substantial good-time credit. Many serve their full sentence, despite all of their “good-time credit”.
“Mandatory Release”, which is what it is still called, has not been mandatory since 1996. Mandatory Release on parole used to happen when an inmate’s good time credit, plus his actual time served equaled his sentence.
A plain English typical example: hypothetical defendant is sentenced to 4 years prison for possession of 2 grams of cocaine. After 2 real years in prison, the inmate has accrued 2 years of good conduct time as well (meaning he has not violated any prison rules, has participated in vocational programs etc.)
His total time then would be 2 real years + 2 good time credit years, for a total of 4 years. Under the pre-1996 laws, he would be released on parole automatically (assuming he hadn’t previously qualified for parole). He would still have to serve 2 more years of supervision, report to a parole officer, be subject to drug testing, participate in aftercare, etc. But he would be released – and thus cost the taxpayers a lot less money as well.
Under the current system, however, mandatory release is discretionary. That’s right. Mandatory = discretionary.
Smith quotes parole attorney Bill Habern on the current state of Texas Parole law:
“I’ve never seen such a dysfunctional system as exists in Texas” – a system that allows the parole board to become a “bully.” “They’ve been bullies so long that they’re just used to it.”
But it’s not the individual members that are the problem, he says; it’s the system they work under.
“It’s not the members of the team playing on the field,” that slant things, he says. “It’s the field,” that’s slanted.
And remember, we’re not talking murder, robbery, sexual assault here. Those offenses were never eligible for mandatory release under the old rules. We’re talking primarily about drug possession cases.
There is (justifiably) much talk in the blogosphere these days about how the firing fiasco scandal is effecting the “image” of the Department of Justice. But there’s really more to this than partisan political shenanigans. (Again, I don’t mean to downplay the importance of it; I’m just trying to talk about a bigger overall issue.)
Michael Powell’s New York Times article “J’accuse!,” addresses the problems that the 1980s federal sentencing “reforms” brought: namely, a sever lack of prosecutorial discretion. He quotes Professor Bruce Green, a former assistant federal prosecutor in New York and director of the Louis Stein Center for Law and Ethics at Fordham University School of Law:
“There never used to be an imperative to bring the harshest charges or a particular sentence, and that meant a prosecutor could craft his own philosophy,” Mr. Green said. “Now you are instructed to bring the harshest charges, and seek the harshest sentence and that imposes a superficial consistency while demeaning a prosecutor’s real power.”
As stated in the Texas Code of Criminal Procedure, Article 2.01:
It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.
When the executive branch, be it the president for federal criminal law, or the governor for state criminal law, instructs its prosecutors to always seek the highest charge, and the highest penalty possible, they strip from a prosecutor their only real implement of justice: discretion.
(And, of course, they hit the taxpayer in the wallet, and guarantee jail and prison overcrowding.)
Anne Reed authors one of my favorite new blogs, Deliberations, and writes about Beauty and the Juror, Part I and Part II.
Jon Katz of Underdog Blog asks Why would Law Enforcement Not Want to Record Confessions?
Riffing on Norm Pattis’ article Does Innocence Matter?, Mark Draughn writes an excellent and lengthy post on Truth in Trial at WindyPundit.
In the Supreme Court Revealed, Joel Jacobsen of Judging Crimes tells you all you need to know about SCOTUS outcome prognostication. (Jacobsen always inspires me to stretch my vocabulary.)
Kevin O’Keefe at LexBlog updates us on Blogging Jurors.
At Blog Reload, Lee Rosenberg notices that all of the drugs found in Anna Nicole were legal. I have to agree with him that she would have been much better off (never mind alive) had she been legally able to use medical marijuana for all those ailments.
Red No More offers us a more reasonable translation for the White House Office of National Drug Control Policy’s acronym (ONDCP): the Office of Nonsense, Distortion, Confusion and Propaganda.
Shame on me for taking so long to notice that Thomas Van Wyk has moved his blogging from The Doors of Deception over to The Liberator Reloaded. (Shout out to Tom here as well: I’m having trouble adding your new feed to my RSS reader, might want to look into that.)
And Pete Guither alerts us that the DEA is now accepting tips from informants online.
Tony Newman of the Huffington Post wrote a short piece commemorating the 1 year anniversary of 18 year old Mitchell Lawrence’s 2 year prison sentence for selling a tiny amount of marijuana to an undercover cop within 3 football field’s length of a preschool tucked away in a not-so-nearby church basement.
Some of the comments on the piece illustrate the difficulties encountered when trying to have substantive, logical discussions with folks about why mandatory minimums and so called drug free zone enhancements are such bad ideas.
I'm sure this young man was the salt of the earth and had no previous record for anything. He probably loved puppies and helped little old ladies cross the street. Surely this was his first offense and the police have never heard of him before.
and
I understand that mandatory minimums sometimes lead to horrible decisions. That being said, selling drugs near or at a school needs to carry such a punishment that it scares all away.
Second, I also understand that you can only be charged/convicted with evidence, but to use the words "...one joint's worth..." tends to imply this was a regular kid selling a tiny bit for the first time.
Why do pro-drug warriors tend to argue that unreasonable sentences are OK, because “this probably wasn’t the first time he ever did anything wrong”? Isn’t that somehow an acknowledgement on their part that the sentences for first time offenders are indeed unreasonable? Otherwise, they wouldn’t need to use that as an excuse. More comments…
You want to sell? Too freaking bad about the penalties. There are six billion people on this planet, not everyone deserves a second chance.
OK. My question here is…what percentage of the planet (or the United States) needs to be in prison…before we consider revising or eliminating mandatory minimums? Another comment…
My guess is that this kid knew what the laws were (I can't imagine this kind of punishment was never discussed in the media) and chose to sell anyway.
This is a poor “guess”. At least one study has shown that fewer than 1% of sales in drug free zones are to children in the first place. This is primarily due to the whole “several football fields away” qualifies aspect. The state always argues to the jury that they do not need to prove that the defendant was aware of a “school” in the area, just that there was one. And, as the law is written, they are correct.
Also, I can tell you from personal experience that clients are almost always genuinely shocked as to the potential penalties. Another comment…
Why do you think it would be a good idea to let people sell drugs by our schools?
This really sums it up, doesn’t it? To question the efficacy, morality, or wisdom of our current drug laws is the logical equivalent of actually wanting all children to smoke crack. Of course, some might also argue that a policy of regulating marijuana would make it more difficult for children to have access. As it is now, "drug dealers" don't exactly ask for ID, do they?
Not all the comments were so poorly thought out, however. I’ll leave you with my favorite…
How dare anyone sell pot near a school! It might cause strange side effects when mixed with the kids' Ritalin and Prozac.
In voir dire, both the prosecutor and the defense lawyer will ask various questions to the panel of potential jurors about their thoughts on punishment, if the defendant has elected to seek jury rather than judge punishment. Obviously, this can be tricky proposition for the defense, because you need to know their feelings on the subject, without making it seem like you are expecting a guilty verdict in the first place.
Not surprisingly, the defense often focuses on the potential juror’s ability to sentence his client on the low end of the punishment range. Prosecutors do their best to weed these people out.
The law now requires that a juror be able to consider the full range of punishment for any particular offense they sit in judgment on. Not that they promise to give the low end of the punishment range, simply that they could consider it an appropriate case.
According to Texas Code of Criminal Procedure Section 35.16, both the State and the Defense are allowed “challenges for cause” when a potential juror shows a bias or prejudice against any phase of the law upon which the [State or Defense] is entitled to rely for conviction or punishment”.
This means, for example, if a potential juror says he could never convict anyone of Possession of Marijuana, because he thinks the law is silly/stupid/immoral/whatever, the State is automatically allowed to boot that sane, forward thinking person off the jury. “Shows a bias against the law, your honor.” “Strike granted.”
And now, Grits for Breakfast points our attention to HB 1577 which is clearly intended to skew jury pools in the state’s favor. It would amend CCP Section 35.16 by adding this language:
(d) The state or the defense may not make a challenge for cause against a juror solely because the juror indicates that, if the defendant is found guilty, the juror will be unable or unwilling to consider recommending to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision under Article 42.12.
Plain language translation? The defense lawyer would no longer be able to disqualify someone from the jury, “solely” for the reason that they said, “Yes, I could convict the defendant – but even though he was eligible for probation under the law, I could never give it to him.” (The amendment pretends to be fair by not allowing the State to disqualify someone for the same reason – however, it should be patently obvious that this rule would always benefit the State, and never the defense.)
As usual, Scott hits the nail on the head with some plain common sense (i.e., non-lawyer, non-legislator) thinking:
That's a rotten idea. In death penalty cases, jurors are routinely disqualified because they don't think they can support the full range of punishments on the high end.
If that's acceptable, then jurors who say they couldn't administer the LOW end of punishments should be similarly disqualified for the same reason - they cannot promise to consider the full range of penalties available under the law. What's good for the goose is good for the gander.
The transcript of oral arguments in Morse v. Frederick, argued at the Supreme Court a few days ago, makes for some interesting reading. (For a summary of the facts, see my earlier comments on the case here.)
Ken Starr (arguing that the principal had the right to suppress the speech) focuses the beginning of his argument, predictably, with the usual Drug Czar type language. His first sentence in fact:
Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation.
A student holds up a sign (off campus, mind you) that reads “Bong Hits 4 Jesus” and now the Supreme Court is being asked to jump to the conclusion that the message glorifies drug culture? What exactly does “Bong Hits 4 Jesus” mean anyway?
Does it mean the speaker believes Jesus supports marijuana use? Does that automatically mean it is pro drugs? Perhaps it’s a suggestion that Jesus should be allowed to use marijuana?
What is the anti-“Bong Hits 4 Jesus” message?
I told my wife that I thought the opposite of “Bong Hits 4 Jesus” would be “No Bong Hits 4 Jesus”, and therefore that would have to be protected speech, at least according to the Government’s argument.
Would “No Bong Hits 4 Jesus” be as obviously pro-Drug War as the government thinks “Bong Hits 4 Jesus” is pro-Drug Culture?
My wife suggested that the opposite message might actually be “Bong Hits 4 Satan”. If the “4 Jesus” part of the sign is automatically an endorsement, then wouldn’t “4 Satan” send the appropriate “Just Say NO” message that the government expects us all to chant?
Any discussion about the actual meaning of this phrase would, I predict, devolve into equally subjective and silly analysis. And that’s exactly my point.
Actually, this case presents an excellent demonstration of the dangers of the government coming in after the fact and interpreting what a particular speaker means, when they argue the right to suppress the speech. Let’s not add the First Amendment to the growing list of Drug War victims.