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

More on Cedric Benson’s arrest for Boating While Intoxicated here, but I was alternately amused and/or saddened by this line in the AP report about the recent Austin incident:

Benson had a couple of brushes with the law during his college days.

He was arrested for marijuana possession in May of 2002 in his hometown of Midland, Texas. The charges were dropped when he passed a drug test and other evidence surfaced to clear him.

Hmmmmmmm.

The charges were dropped. He passed drug test. And, according to the writer, ‘other evidence surfaced to clear him’. But we won’t say what that was.

But, and here’s the important thing to remember, as you read this story about Benson being arrested, let’s not forget that he has had other ‘brushes with the law’.

Clearly the reporter has included this information because it’s pertinent to the main story. If we apply the well known rule that ‘where there’s smoke there’s fire’… does that mean that:

• Because he’s been arrested before he’s more likely to be guilty this time or
• Because his prior arrest had to be dropped - at least in part because of evidence of innocence - that ‘there go the police, arresting an innocent man again’?

I’m just asking, that’s all.

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Decatur lawyer Barry Wise points out that because Section 38.23 of the Texas Code of Criminal Procedure provides additional prophylactic protections to accused citizens the Virginia v. Moore decision doesn’t have any real impact in Texas. Mark Bennett wonders why then did the Texas Attorney General even bother to weigh in on the amicus brief.

Good question.

Here’s a portion from the intro:

If the States choose to do so, the Constitution permits them to provide their citizens with protections above and beyond those embodied in the Fourth Amendment.

Concurrent with the ability to create new protections, the States are also permitted to craft the remedies for violations of these state protections.

Maybe Greg Abbott was the expert they needed for that portion of the brief.

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So Roger Clemens’ lawyer Rusty Hardin gave an interview to New York Lawyer magazine about his representation of the Rocket. In part:

Hardin: What is a public person to do if he's falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he's wrong?

Mag: You don't think much of your critics?

Hardin: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

Mag: It seems like he was asking for trouble.

Hardin: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He's a grown-up.

Mag: Even if that decision sends him to jail?

Hardin: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

So Clemens’ attorney is essentially broadcasting the story that:

• Roger could have taken the safe route
• I (the lawyer) told him the easy thing was to shut up
• He is big bad Roger and wants to fight for his reputation

Gosh. That might be what an innocent person would do. Or even what a “You can’t prove I’m guilty” person would do.

Might be part of an overall PR strategy.

So why are Scott and Stephen so sure that Hardin is sneaking behind his client’s back without his explicit permission to broadcast this story? Is Harden so dumb he doesn’t think this interview might get back to Roger?

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Texas Governor Rick Perry, giving advice last Friday to one of the largest graduating classes of new DPS troopers ever:

You might pay heed to a hunch and check a truck more closely the way one of your fellow troopers recently did…and stopped $3 million worth of cocaine from reaching our communities.

Don’t forget to make a pretext stop first though… that ‘hunch’ may not hold up for reasonable suspicion to detain.

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Midnight and I’m not asleep yet. Go out to the living room, flip through some channels. A movie on HBO called 8MM is on.

Joaquin Phoenix to Nicholas Cage:

“You’re not a cop, are you? If I ask you and you are, you gotta tell me…”

“I’m not a cop.”

Of course this is nonsense.

Here’s what I don’t get though, even from the Hollywood writer’s perspective. Why does the guy asking “Are you a cop?” always follow it up by telling the potential undercover officer what his duty is? To fess up?

That doesn’t make any sense to me.

If he’s a cop, surely he’ll know the rule, wouldn’t he? Only the non-police officer wouldn’t know the rule, but he’ll say “No” anyway.

Update: Saw a bit more of the movie. The 2 main characters are being granted entry into a room full of possibly illegal activity. There’s a guard at the door. He asks everyone who enters

Are you currently in or have you ever been affiliated with law enforcement? (‘No’)

Yeah. That should be enough to grant that motion to suppress, right?

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Mark and Anne are blogging about Texas’ jury instruction regarding a defendant’s ‘taking the fifth’. Scott has weighed in as well – the New York instruction is about 5% better than ours, leaving it still severely flawed.

I decided to rewrite it myself:

While a defendant may choose to testify if they so wish, when the State fails to prove any element of the offense beyond a reasonable doubt, it becomes completely unnecessary for a defendant to testify. The State’s case is not any stronger just because the defendant has chosen not to testify in this particular case.

How do you like them apples? I don’t think it will ever happen. Not that instruction, but I think it’s fair.

Anyone else want to take a shot at writing one that might pass muster?

Related Posts:

The Right To Not Testify Against Yourself (aka the 5^th Amendment)

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…supposedly can’t be held against you, right? It wouldn’t really be a ‘right’ if jurors were allowed to hold it against you. 

Houston criminal defense lawyer Mark Bennett points out though that the instruction read to the jury in the charge in Texas is:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence. [From McClung’s Pattern Jury Charges, emphasis added.]

He then asks:

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a "failure"?

You know the part in the TV show when the [defendant/defense lawyer/sometimes the prosecutor] cringes as some sort of terrible unknown piece of evidence comes out. It’s a silly made-for-TV moment that (almost) never happens.

But I bet I’m not the only criminal defense attorney that has to use some self control to avoid that cringe when the judge reads that portion of the charge.

There’s got to be a better way to say that. I don’t know that we can effect actual change, but I’ll go work on it. In the meantime, let’s hear suggestions from other Texas criminal defense lawyers out there. Shawn? Robert? Stephen? Hunter?  David? Doug? Ed? Steve?

How do they handle it in other states? What’s the jury instruction regarding exercising your right not to testify in New York? Maryland? Pennsylvania? Alabama? Missouri? Florida? Nevada? Any of you out of staters have better jury instructions for this?

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[Hat Tip: Dave Shapiro, who posted this article on the Austin Criminal Defense Lawyer’s Association listserv.]

UTEP hosted a conference called “Interrogations & Confessions: A Conference Exploring Current Research, Practice, and Policy,” last week. The Rio Grande Guardian wrote an article** about it.

The recent spate of DNA exonerations, usually in death penalty cases, has understandably increased interest in the previously widely disbelieved phenomenon of false confessions. The Innocence Project reports that fully one quarter of wrongful convictions involve false confessions:

False confessions and incriminating statements lead to wrongful convictions in 25 percent of cases. More than 350 jurisdictions now record interrogations.

False confessions are another leading cause of wrongful convictions. Twenty-five percent of cases involve a false confession or incriminating statement made by the defendant.

Of those cases, 35 percent were 18 or under and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings.

More than 350 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

From the Rio Grande Guardian article:

Professor Ray Bull, from the University of Leicester, spoke on what really happens in police interviews with suspects. He helped to develop reforms in the United Kingdom. That country responded to problems within the criminal justice system and changed the way interrogations were conducted. Tape recording of all interviews with suspects is now mandatory.

“It’s a win-win situation,” said Meissner, who reported that in areas where interrogations are tape recorded, everyone is happy. Judges, prosecutors, defense attorneys and police who are often accused of using force, all can rely on the tape instead of someone’s word. There are fewer expert fees and court costs involved when interrogations are taped, he added.

So, the UK has it right. At least when it comes to capital cases in the United States, we need to go to an absolute rule: Eligibility for the Death Penalty Requires a Videotaped Confession.

We would need rules and jury instructions as well regarding the circumstances surrounding any ‘confessions’.

I assume this would satisfy folks like Jeffrey Deustch, who has been polite enough to engage me and other readers of the blog in a death penalty debate recently.

People who are less concerned with the ‘accuracy rate’ when it comes to the ultimate punishment will remain unconvincible.  But in the meantime, anyone else want to add Texas to that Innocence Project list?

[** Given the url, which ends with “/features_story.asp?story_no=1” I fear this link may go dead. If so, maybe you can use the search feature in the future to look for the story.]

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Radley Balko on why Texas might try to prevent anti-death penalty groups, as well as the rest of the world, from finding out whether Texas executed an innocent man:

Now, I can think of some reasons why a prosecutor would want to destroy a piece of physical evidence that could prove that the state executed an innocent man. But none of them are compatible with...um...being a human being.

Perhaps, for example, the prosecutor was one of the prosecutors who worked on the case, and doesn't want the stain on his career that might come with a wrongful execution. Perhaps he wants to avoid the inevitable stain on Texas' already execution-happy reputation that would come with proof that the state executed an innocent man. Perhaps he knows that proof of a wrongful execution will make it much more difficult for him to win death penalty cases in the future.

But here's the thing: While I can perhaps see a prosecutor harboring such sentiment deep down inside, I can't possibly conceive of anyone actually making these sorts of arguments publicly. Or with a straight face.

Claude Jones was executed in 2000 for the robbery/murder of a liquor store owner. During trial, the State’s expert proclaimed that a hair found at the scene ‘matched’ that of the defendant. The Texas Court of Criminal Appeals cited the ‘matching hair’ as the corroboration necessary to affirm Jones’ death sentence.

Blogs have recently been covering the story of Texas’ attempt to block finding out whether this ‘crucial’ hair evidence would have actually exonerated Jones. See: StandDown Texas Project, the Innocence Project, Jeralyn Merritt, the Texas Moratorium Project, Capital Defense Weekly, DeathWatch, Grits for Breakfast, PWC Consulting, and finally, a tie for my two favorite blog post titles about this story, from Amnesty International USA “Hair Today, Not Gone Tomorrow” and from Yank in London ‘We’ll expect a retraction and an apology”.

Speaking of retractions/apologies, let’s get to the title of this post “Execution is Proof of Guilt”. There are definitely folks that need Jones to not be found innocent after the fact: death penalty supporters. Because he has already been executed, he is and will remain guilty.

I make this prediction. There will be 1 of 2 possible reactions to the results of the DNA test.

#1) The DNA test proves that indeed it was Jones’ hair at the scene of the crime. The reaction will be, basically “Ha Ha Ha,” and “See, we told you that the anti-death penalty crowd is just a bunch of murder lovers”.

#2) The DNA test proves that it was not Jones hair at the scene. The reaction from the pro-death penalty folks? Will it be, good grief an innocent man was executed? No. We will see all sorts of rationalizations that “just because the hair follicle wasn’t his, doesn’t mean he didn’t do it,” and “they didn’t prove his innocence”.

I’ll follow up on this when the results are in. In the meantime, anyone want to predict other possible reactions from the pro-Death crowd?

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Several months ago the blogosphere was alive with posts about Cam’ron, Anderson Cooper, 60 Minutes and the ‘Stop Snitching’ movement. [See Grits for a good post on the subject, and a list of other bloggers who chimed in as well.]

Today, I came across something I meant to blog on the subject, but never got around to. I had been channel surfing, and stopped on Mark Fuhrman commenting on FoxNews about the story. I’ll leave it to others to speculate why Fox pays Fuhrman for commentary; for now, let’s just assume it’s because he’s the universally acknowledged poster child for Truth, Justice and the American Way.

Anyrate, I was shocked to hear what former police officer Fuhrman had to say on the subject, so I rewound (thanks to an ever-recording DVR) and jotted down his words.

Mind you, this quote is not in the context of a police officer, or prosecutor, or other State official who feels the need to justify a particular conviction that was based on snitch testimony. He’s just honestly talking about the phenomenon of snitching:

Just remember this: people that offer info to the police, they’re not waiving us down on the street saying, “Come on, I want to help you.”

What’s happening here people are working off their own problems, their own beefs, their own case which might be a property crime, it might be some kind of probation violation, and they want that to go away. They’ll give you info on a murder, a robbery or a rape.

They’re dealing stuff out so I think everybody’s got a little confused here. As soon as they’re on the hot seat they’re willing to do the deal, in jail or out of jail.

I actually no longer remember the exact context in which this remarkably accurate description of snitch testimony was delivered. The point is that Fuhrman was simply talking about the realities of snitch testimony and didn’t feel the need in this situation to brag about how reliable his particular informant on a particular criminal case was.

But in a different context, it sure sounds like what a criminal defense lawyer might say during closing argument, doesn’t it?

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Criminal defense lawyers beware: if Bob Costas pops up in your jury panel, you’ll need to find some way to strike him.

Last night Barry Bonds hit home run number 756, breaking Hank Aaron’s all time record. This morning Bob Costas appeared on the Today show, commenting on the mental asterisk that many baseball fans (at least outside of San Francisco) attach to the achievement, due to the overwhelming amount of press coverage over the past few years about the ‘Steroid Era’ in baseball.

Matt Lauer: …you have bristled at the idea that [Bonds] is innocent until proven guilty.

Bob Costas: Well, this ‘innocent until proven guilty’ is an insufferable platitude that is masquerading as high mindedness as if those of us who don’t somehow withhold all judgment need a remedial course in civics…

Costas then points out that the debate about Barry Bonds’ home record is not playing out in a criminal jury trial setting, and that different standards apply to real life. 

This is a legitimate distinction. Two guys at the local bar discussing Babe Ruth vs. Roger Maris need not limit themselves to rules of evidence and criminal procedure to make their points. Life and liberty are not at stake in the debate.

Still, Costas’ description of the vital legal concept shows such disdain for the notion it makes me cringe. I’ve written before about the real life concept known as the presumption of guilt.  I may track what the blogosphere’s reaction is to the record over the next few days, and report back on what I find.

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Michael Hawkins, contributor to/author of Spontaneous Arising tells the story of his jury service in a Federal Drug case. It’s clear from the title of his post (Pure Democracy and the Moral Bankruptcy of the War On Drugs) that the federal prosecutors missed a golden opportunity to use a preemptory strike on him, but this case doesn’t turn on the juror’s individual views about decriminalization, or any other political views.

Instead, it turns out that the Government has a really weak case against the defendant. 

Sure, they trot out the usual suspects: mostly co-defendants who had plead already, discussing the various intricacies of their multiple prior inconsistent statements, and of course, the officers and investigators from the Task Force, who, according to our fearless juror, placed the defendant’s vehicle but not the defendant at the scene of some important meeting during the conspiracy.

For me, here’s where it gets really interesting.

The judge allowed the jurors to submit questions to the lawyers, and then more directly after that. The juror submitted these questions:

Officer McNiven and Sgt. Goldberger have gone into great detail around the surveillance of December 8, 2004. Was the defendant at any time positively identified as either a passenger or the driver of the blue Honda Passport?

If not, how did the authorities determine that the defendant was present on that day?

The response:

Goldberger, the lead investigator, was still on the stand, and to his credit, he tried his best to keep up the charade.

He spent two full minutes explaining how it was dark, how his men did not want to blow their cover by going into the liquor store, how the investigation was just getting started... then he wanted to read the question for himself. The judge handed it to him, and he held it for probably 30 seconds before answering the second half.

"Well," he said, "we never got a positive ID on the defendant, but we did see three men get out of the car at the trailer park -- two Hispanic, one white. The Hispanic men matched the height and build of the defendant."

At that very moment, just into day three, you could see the wind go out of the prosecution's sails. The entire jury had moved up to the edge of its chairs in anticipation of Goldberger's answer, and I watched the jury slide back into its chairs, shaking its heads and clicking its pens.

I can't be sure, but from what several of the jurors told me later, that's the precise moment when everyone made up their mind: not guilty, not guilty, not guilty, not guilty, not guilty (five charges: 1) possession of cocaine; 2) possession of methamphetamine; 3) distribution of cocaine; 4) distribution of methamphetamine; 5) conspiracy to distribute both cocaine and methamphetamine).

Obviously, I think it’s laudable that the jury reached the correct decision in this case. And Michael justifies the title of the post with some good comments about the War on Drugs in general at the end of his post.

But…there are things about this that drive me batty, namely: the jurors posing questions that get asked of the witnesses.

My feeling is that the jury should have reached the Not guilty verdict without asking the question in the first place. The fact that the question had not been adequately addressed by the State, either in direct or cross examination of witnesses means that there was already no evidence tying the presence of the defendant to the vehicle, and to whatever was going on.

That, in and of itself, means that the State has failed to prove their case.

Now, in this particular case, it took a thoughtful juror asking the question, and the rest of the jury hearing the (non)answer of the witness, to make it perfectly clear that the Government’s case was so weak.

As a side note, I see this sort of thing more often coming from judges in pretrial litigation, or for instance, in an ALR license revocation hearing arising out of a criminal DWI charge.

Judges very often will ask the witness, usually a police officer, a question, and invariably it cuts right to the heart of whatever is missing in the State’s case (whether it’s the County Attorney, District Attorney, DPS, whoever is representing the State in the hearing).

If I stretch my brain, I could probably remember some hearings where the question asked by the judge, as opposed to ones asked by the litigants involved, helped the defense. But I’d conservatively estimate that 9 out of 10 times, the answer helps the State. The most common example would be in a pretrial motion to suppress, where the Defense has established that there was no prior warrant for an arrest, and the ‘reasonable suspicion to detain’ is fuzzy at best.  Suddenly the judge asks the police officer for more detail about the stop, and then it appears.

Again, I see this is a scenario where the State has failed to meet their burden, and if the prosecutor doesn’t fix it by themselves on direct or cross, the win should go to the defense.

Can any criminal defense lawyers out there think of realistic juror questions that could be asked that aren’t some variation of: I have a doubt about (fill-in-the-blank element of the offense)…could you clear that part up for me?

Or, can anyone reasonably argue against the proposition that in the jury experience described above that the jurors should have come to Not Guilty verdict based on the lack of evidence in the first place? 

[HatTip: Drug WarRant]

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Stephanie West Allen writes a book review of Mistakes Were Made (but not by me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Tavris and Elliot Aronson appropriately titled : Wrong? Me? No way! That's not how I see it

Tavris and Aronson have written a thorough coverage of the phenomenon of cognitive dissonance. That's the feeling in your brain when you find that you are holding two inconsistent thoughts or beliefs; it's like an itch that needs to be scratched.

Aronson in the interview says resolving the dissonance is a drive like thirst or hunger. The book describes the lengths we will go to in order to achieve consonance — lengths which can be mind-boggling, laughable, or dangerous.

For example, let's say that you consider yourself a bright and savvy person and you do something, well, a bit dumb. You now have yourself some dissonance. How do you scratch it? The chances of your modifying your self-concept are low. You must do something with this incident of bungling.

Ah, hah! You can revise your opinion of it! It was not so dumb after all. In fact, of decisions you have made, this may have been one of the wisest. Don't laugh. We all resolve dissonance and our methods may be just as slippery.

I think we can all see ourselves at times going through this same justification-of-a-blunder process. We’ve all done it in one form or another. It’s human nature. [Speaking of human nature, check out Stephanie’s new blog Brains on Purpose: Neuroscience and Conflict Resolution.]

Back to cognitive dissonance…what is it about her description of that phenomenon that makes me think of some juries?  Well, let’s start with this:

Criminal defense lawyers that never gotten a guilty verdict, when they believe they should have gotten a Not Guilty… aren’t trying enough cases.

Perhaps I’ll expound on that theorem (that I just made up) in a later post, but here’s the point for this one.

When you talk with a jury after a guilty verdict in a case where you feel strongly that it should have been that magical two word not guilty verdict instead, you often leave the jury room with a somewhat bitter feeling. You hear things like:

• Something must have happened and it seemed like he was involved
• We all felt like he was probably guilty (sometimes adding “of something”)
• The police have a tough job, and we had to take his word for it

…among other things. And the criminal defense lawyer’s reaction is usually to think (to themselves) but measured beyond a reasonable doubt you are telling me the verdict should have been Not Guilty.

It sure seems at those times that while some jurors are even apologetic about their verdict, others use these same rationales to argue that they reached the correct decision.

Assuming most (some?) of my readers are in agreement that the statements listed above that jurors make do not justify a finding of guilt beyond a reasonable doubt, I’ll ask them this:

What common statements from jurors have you heard that you would put in the cognitive dissonance category?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Want proof?

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

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

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

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

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

Our felony court judges are totally on board.

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

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

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

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

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

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

John Swartz

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

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

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

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

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

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

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

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

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

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

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

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

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I’ve been thinking about posting about Mike Nifong’s disbarment, but before I got around to it, I ran across this excellent piece from an Austin prosecutor:

I don't believe in punishment for prosecutors who are simply wrong (the job inherently requires people to make important decisions, sometimes based upon limited information), but Nifong ignored crucial evidence while seeking indictments, withheld exculpatory evidence from the defense (a huge no no for prosecutors), and may have even perjured himself regarding the availability of certain evidence when responding to inquiries by the court…

The only thing that I find remarkable about the case is how much retribution is being heaped upon Nifong for his overzealous prosecution. I say this not because he is undeserving of it, but because this is probably not an entirely isolated incident in which prosecutors are aggressively and unethically prosecuting defendants whose guilt they have very good reason to doubt…

Even if overzealous, unjust prosecutions result in a correct verdict and exonerate some wrongly accused defendants, the typical low income defendant is unlikely to see the kind of justice meted out against an overzealous prosecutor on their case the way that it is currently being delivered to Mike Nifong.

Jason is exactly right, of course. Let’s not miss the point of the disbarment. Yes, these defendant’s were incorrectly charged, but it was the District Attorney’s grossly unethical behavior that got him in trouble. As well it should have.

It is neither unusual nor unethical for a prosecutor to indict an innocent person. They have no real way of knowing whether the person is actually factually 100% guilty. As they like to say in voir dire, only witnesses know the truth (and sometimes not even then), and jurors and lawyers involved can’t be witnesses in a case.

Nifong’s unethical behavior was hiding facts and evidence from the defense that showed that they were not guilty, and then lying to the Court about it. I suspect that it was the dishonesty with the judge that truly hung Nifong, rather than not turning over what we lawyers call Brady material.

As they say, it’s usually the cover up that gets folks in trouble.

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A “blogversation” has broken out. It started when Simple Justice responded to my post about Expunction/Expungement, noting that is not available to New Yorkers:

Personally, I think it’s a bit bizarre when Texas law is a step ahead of New York when it comes to something like expungement.  Remember, this is the state that puts defendants to death when their lawyer is fast asleep at trial. 

But the point of this post is that there are significant differences in the law and practice from place to place.  Having tried cases as far away as Anchorage, Alaska, I've come to realize and appreciate that understanding local practice matters. 

Then from Mark Bennett, a laundry list of the ways criminal justice is better in Texas. Next Gideon jumps into the fray, analyzing similarities and differences in Connecticut. Noticing that Mark has listed “You have a right to a jury trial. No ifs or buts.” he comments:

I had no idea that in some states, you didn’t have the right to a trial by jury.

Well, apparently New Jersey, Hawaii, Nevada and Arizona are OK denying the right to jury trial in DWI/DUI cases. (Perhaps I’ll comment on the Duncan v. Louisiana Supreme Court decision that layed the groundwork for that sometime.)  So I’m siding with Mark in saying, thank goodness Texas defendant’s get that old jury trial in “just a misdemeanor” DWI cases.

So how about it folks? Let’s hear from criminal defense attorneys in other states about regional differences in the practice of law…

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Someone called and asked me this today: Why did my deferred prosecution show up on a criminal background check?

They had successfully completed a Travis County Deferred Prosecution agreement for a shoplifting (theft) charge. The terms of the agreement were:

• Complete 50 hours of community service
• Attend a Theft/Shoplifting Class
• Stay out of trouble for 1 year

Like all Austin Deferred Prosecution agreements, the case had been dismissed “up front”; meaning that the State dismissed the Theft charge when the agreement was signed, and came back and checked after a year to see whether the defendant had lived up to their end of the bargain.

The defendant had already turned in proof of the community service, and the certificate for completing the class, and had not gotten into any trouble.

Unfortunately for them, during a routine criminal background check by their employer, the arrest “showed up”. Why?

Because they had not gone back after the year was up and expunged the arrest.

Here’s the deal. Let’s say you were arrested in Austin and charged with [DWI, or Assault Family Violence, or Theft, etc.]

An officer with the Austin Police Department arrested you. You were booked into the Travis County Jail and turned over to the custody of the Travis County Sheriff’s Office (the folks in the brown uniforms). You were interviewed by Pre-Trial Services for a Personal Bond. You were magistrated by an Austin Municipal Court Judge.

(This next part of my hypothetical never happens, but I’m using it to prove a point…) As you are walking out the door of the jail, the prosecutor meets you at the door with a dismissal, and admits that a mistake was made: you should never have been arrested. You are free to go. You are no longer on bond. You don’t have ot go to court (or hire a lawyer).

Well…is that the end of the story? No!

All those agencies I mentioned will have a record that you were arrested in Austin, Texas on [a certain date] and charged with [whatever criminal offense]. Several more agencies, such as D.P.S., the County and/or District Attorney’s Offices, TCIC, NCIC (Texas & National Crime Information Centers) will have a that same record of your arrest in a matter of days or weeks.

Same thing when you hire a lawyer and get your case dismissed. There is still a record of your arrest. And that’s what expungement is for.

An Expunction is simply a civil lawsuit against all the government agencies that have a record of your dismissed or acquitted case, demanding that they destroy the records of the arrest.

Why is that necessary? Because, unfortunately, folks think that where there’s smoke, there’s fire. If they see that you were arrested, they very well may assume that you were guilty, even if you weren’t convicted.

Bottom Line? Getting a dismissal is not the same as “getting the arrest off your record.”

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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 23^rd 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 its 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 35^th 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.

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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.]

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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.

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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”.

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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.

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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”.

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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.

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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?

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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).

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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.

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KC Johnson, author of the blog Durham-in-Wonderland, discusses prosecutor Mike Nifong’s inconsistent statements…first in a public hearing with a judge, then in a letter to the State Bar.

At issue, of course, is his meeting with Dr. Brian Meehan where it now seems clear that they agreed to withhold exculpatory evidence from the defense. It is now a matter of public record that Meehan told Nifong about the presence of multiple unidentified males on the accuser’s rape kit on April 10th. 

In June, the defense asked for the complete rape kit in a discovery motion. They also asked that the prosecutor memorialize his conversation with the doctor about the results. The judge denied their motion.

Now Nifong has denied to the State Bar that the meeting ever took place.

But, back to the inconsistent statements about the meeting itself, and whether it even occurred.  How could Nifong have tripped up in his letter to the bar, and contradicted his previous public and transcribed account?

Here’s where Johnson nails it:

Given the significance of the April 10 meeting, how could Nifong have been caught flat-footed by [defense attorney] Cheshire’s discussion of it?

The context of the hearing explains why.

In June, the key issue was not when Nifong met with Meehan, but whether the court would force the district attorney to memorialize two conversations—his April 10 meeting with Meehan, and his April 11 meeting with the accuser—and turn over additional items from what appeared to be an incomplete rape kit…

Meanwhile, on the conversations, Nifong focused most of his effort on explaining why the reliably pro-prosecution [Judge] Stephens should not require… him to memorialize what the accuser did or did not say in their April 11 meeting.

“It was not a meeting,” Nifong declared, “to discuss the specifics of the evidence in this case. Other matters were discussed, which, again, are not matters that are subject to discovery.”

So that’s indeed how Nifong got himself in this mess. But there’s a much bigger issue involved here:

Discovery in criminal prosecutions should not be limited. In any way. Ever.

The heart of the problem, particularly from the perspective of the wrongfully accused, is that their lawyer can’t walk into the DA’s office and have immediate, full, complete access to everything in the file.

I’ve previously discussed the