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

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

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

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

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

More from the MSNBC story:

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

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

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

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

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

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

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

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I’ve written before about why you might want to consider perfectly legitimate reasons to say “No” when the police ask to search you or your vehicle, but apparently folks aren’t listening. 

According to today’s Austin American Statesman, “Police Consent Searches Increase”.

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While checking my referrer stats, I noticed someone find my blog by Googling “copy of police report Austin Texas”. This site pops up as one of the top responses to that search, probably due to my recent post about the criminal discovery process, both generally and here in Travis County. But the first site Google returns is the Austin Police Department’s FAQ page which purports to answer the question…

4. How do I purchase a police report?
For information about purchasing a copy of a police or accident report, contact that Austin Police Department Report Sales office at 974-5212. Reports can be purchased at either Police Headquarters in downtown Austin located at 715 E. 8th St; reports are available Monday through Friday between 7a.m. and 6 p.m. or you may purchase them from the North Substation locate at 12425 Lamplight Village Drive, reports are available Monday through Friday between 8 a. m. and 5 p. m.

Wait a minute, didn’t I just blog about the difficulties defense lawyers have in getting prosecutors in some counties to even allow them to read the police report, never mind getting a copy of them?

Well, here’s the answer, if you think there’s a conflict between APD’s FAQ page, and how things really work. Sure, they will take your money and hand over to you what they tell you is the police report, but it’s not…

It’s usually a two page document filled with information you already know or don’t care about, like the date of the arrest, the charges filed, the officer’s name, whether bias or family violence was involved, etc. etc.  Then there’s the section that gives detailed information about the defendant’s name, date of birth, driver’s license number, etc. etc.

But what about substance, the officer’s observations, any statements made? Well, I’m going to quote you exactly from one that I just took a look at:

On 8-25-06 at 0142 AM an arrest for DWI was made.

That’s it. It’s not a police report; it’s something called and actually titled a “press release”. You already know who you are, and what you were arrested for. Don’t waste your money giving it to A.P.D. for a so called copy of the police report.  Yes, there is such a thing as an offense report, which details all the officer's observations and conclusions, but it's not for sale.

I've had plenty of clients come into my office a few days after their arrest and announce to me that they already have the police report.  It always pains me to have to tell them that they have just wasted their time and money.

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News8 Austin had a recent segment on how the increasing number of DWI arrests in Austin has caused the current County Court judges to ask for another court:

Each month Travis County court-at-law judges handle thousands of criminal cases. Judges say their average monthly caseload has increased 60 percent since 2002… Each county court currently has an average of 3,200 cases pending… In the last decade, the number of DWI cases has risen 135 percent.

DWI cases can backlog a system faster than any other type of misdemeanor, precisely because of the way we (as a society) handle them. Austin Police Department has, for all intents and purposes, moved towards an “arrest anyone with the odor of an alcoholic beverage on their breath” standard. The more questionable DWI arrests that are made, the more the innocent civilian decides he wants to take a case to trial – which causes the backlog.

The criminal justice system depends on plea bargaining most cases, or it will grind to a standstill. Practicing in these courts everyday, I can vouch for the need of at least one new court.

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Austin Police Department's DWI Enforcement Unit (Task Force) was created in 1998.  Since then, DWI arrests in Austin, Texas have more than doubled.

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I enjoyed Cliff Hutchison’s post at the ScienceEvidence Blog (cleverly titled Don’t Bogart That Expert) about the qualifications of a marijuana defendant’s expert witness. 

The case discussed involved a former criminal defense lawyer who was an opponent of the drug war, who had been qualified in 100 marijuana cases to testify as an expert witness, always for the defense. The court eventually ruled that the defense had not properly established his qualifications as an expert in the field.

However, they rejected the Government’s theory that his testimony was more prejudicial than probative, simply on the basis of his bias against our current system of prohibition and incarceration.  Cliff questioned that part of the finding:

Query, though, if the government wasn’t correct in arguing that an advocate witness has no business offering Rule 702 testimony? Logan claimed to have testified in over one hundred marijuana cases, and if his testimony was consistently an argument favoring marijuana defendants, how can it be considered reliable? The testimony becomes simply bolstering, in the guise of expert opinion, hence not helpful to the fact finder.

I have to jump in and disagree here. Let me make my point by using some obvious and common examples from the prosecution. Would this mean that the Austin Police Department’s DWI Task Force officers, who are qualified as experts in the standard field sobriety tests based on their NHTSA training, would be disallowed if it turned out they always testified for the prosecution? (I assume it’s self evident that they do.)  If I could just get them disqualified, I'd probably win every case...

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KXAN NBC reports that the Austin Police Department is keeping a list of the bars that last served DWI suspects. They get the information during the questioning of the suspect on scene and prior to the arrest.

"We try to get these officers to ask them, 'Where have you been drinking?' If it's a business establishment. To give us an idea of are there any violations at those businesses that are already serving to people intoxicated?" APD Lt. Craig Cannon said.

APD then hands over the information to TABC. At first blush, this may not sound unreasonable. The problem lies in the method of collecting the data. Once certain bars are targeted by a police department, that becomes the area that DWI task force officers patrol. More officers in a certain area means more detentions, more arrests, and more arrests for DWI. Then more DWI suspects report their last drink came from one of the bars on the list.

As soon as a list is first established, and without using a random or statistically significant sample size, it becomes a self-fulfilling prophecy. The current top five on the list are Cedar Street, Rain, Club Carnaval, Blind Pig and Oilcan Harry’s.

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