Everyone Needs to Watch This...

"Why You Should Never Talk to the Police" 

The Fifth Amendment gives us all the right to remain silent.  Let's use it.  All the time.  Please.  Even if you are innocent, use it.  Even if it's just a traffic violation, use it.  

Here is a non-exclusive list of some things you may not know about police interrogations which should be reason enough to exercise your right to remain silent:

1. the police can lie to you...and often will in order to get you to confess (they can tell you they have it all on tape when in actuality they don't, for instance)
2. the police are trained in psychological interrogation techniques designed to elicit confessions (the Reid Technique)
3. the police only want to talk to you because they already, at the very least, suspect you're involved in the crime in some way
4. you are being audio and video taped...even if you don't see the camera
5. the police don't have to give you Miranda warnings if you are not in custody and not being interrogated - that means if you go to the police department on your own thinking you are doing the right thing you will not be warned about your constitutional protections prior to police questioning
6. the police don't have to tell you what they know...and usually won't
7. the police know how to manipulate what you say - you will not outsmart the police (you are not Dexter)
8. the police are getting paid to question you therefore they have no motivation to end the questioning - you, on the other hand, will want to leave as quickly as you can
9. their goal is to get a confession even if it's not for the original offense they started questioning you about
10. you will not be able to lie and get away with it
11. you will not be able to talk your way out of an arrest

So, what do you do?  Knowledge is power.  Know your rights.  There is a way to politely and intelligently deal with the police.  Always be polite, but always be firm when speaking with the police.  For instance, "yes, I will talk to you if I can have my lawyer here"; "no, you cannot search my car"; "no, you cannot come into my house", etc.   

You can expect to be verbally bullied when you give this response, but stick to your guns.  Be firm.  Seasoned, intelligent police officers will be disappointed in this response but they will understand it and won't be offended by it.  After all, they know their role, and they know your constitutional rights.  You might as well know your rights too, and exercise them!   

Who Wants to Live in Oceania....Perhaps We Already Are

Well, Texas has done it again.  We are in yet another very exclusive category...even within our own nation.  Texas is only 1 of 4 states that allow deliberate familial DNA searches.  The other 3 are California, Colorado, and Virginia.

With the saturation of television crime scene dramas everyone these days know about standard forensic DNA testing.  This involves seeking a direct match between DNA found at a crime scene and the DNA of a suspect.  With the advent of the FBI database, CODIS (Combined DNA Index System), in 1998 DNA searches have become a constant reality.  It is now a standard condition of felony probation in most counties, including Denton, that the probationer submit a DNA sample for CODIS.  It seems harmless enough after all - just a swab of the cheek and that condition can be marked off the list. But is it really harmless...?

Familial DNA searches, on the other hand, implicate broader privacy concerns.  Familial DNA searches are searches for a close relative's DNA.  They are used when a "suspect" has thus far avoided the "cheek swab" that comes along with any sort of felony disposition (other than an acquittal of course) making the suspect's DNA unavailable to law enforcement.  Familial DNA searches are useful because, according to Time Magazine, 48% of people in jail have a relative who has also been incarcerated. 

It may be a good investigative tool and pass constitutional muster in the end.  But before jumping on board with familial DNA searches it's worth thinking about.  Now, how many people will unknowingly be under constant genetic surveillance?  Isn't this just something else that makes it all seem a bit too Orwellian??

Beyond Comprehension

When you think about it, it's amazing really.  In Texas, a person can be mentally retarded yet competent - competent yet insane.  Does that even make sense?  

Not too terribly long ago, in Atikins v. Virginia, the US Supreme Court ruled that a mentally retarded person could not be executed - it's a violation of the 8th Amendment prohibition against cruel and unusual punishment.  (It's a whole separate issue that it took the United States, one of the most civilized countries in the entire world, until 2002 to come to this realization).  However, a mentally retarded person can be put to trial for a criminal act...an intentional or knowing criminal act...and a mentally retarded person can be sentenced to prison - even life in prison.  After all, a mentally retarded person, by definition, has significantly impaired cognitive functioning and deficits in two or more adaptive behaviors.  

Confused?

In Texas, in order to be competent a person simply has to have a sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding and a rational as well as faction understanding of the proceedings against him.  Further, in Texas there is a presumption of competency.

What then of the mentally retarded whom psychologists deem competent?  Once a mentally retarded yet technically competent person is subjected to the criminal justice system, chances are that he will forever be a statistic in the criminal justice system absent a loving family or some other source of support.  I certainly don't pretend to have all of the answers but there must be a better solution than just warehousing people...mentally retarded people.  It is simply beyond comprehension...

Persistence is Key

As a criminal defense lawyer you get used to being told "no" by prosecutors.  No, your guy can't have probation.  No, we won't waive a jury.  No, we won't agree to a bond reduction.  Some prosecutors seem to get mad just because you ask the question (that's a whole separate post for another day).  More often than not, criminal defense lawyers are told "no."

And that's fine.  It's part of the territory.  After all, that's what courtrooms and juries are for - to sort it all out when there is no agreement.  However, it doesn't mean that you should stop asking the question just because you have been told "no."

This week was a prime example of persistence paying off.  After asking countless times since June and being told "no," I was finally told "okay."  (not a firm yes, mind you, but a relenting "okay").  And it mattered to my client and his parents.  It means that an enhancement allegation was waived and now he will not be required to do at least half of his time before he becomes eligible for parole.  A minor victory in the grand scheme of things but a major win for a client.

Yes, persistence is the key in a world of no's.

Food for Thought...

Last month Texas stopped providing requested last meals to prisoners prior to execution.  This was prompted by death row inmate, Russell Brewer, who ordered an elaborate last meal and then, in an act of defiance (or maybe he just wasn't hungry anymore) did not eat anything prepared.  Now, death row prisoners will receive the same meal as the rest of the prisoners as their last.

According to the New York Times, in a bid to further cut costs some Texas Prisons have resorted to not providing lunch on weekends to prisoners.  That's fine, though at some point there is sure to be a constitutional challenge and civil rights lawsuit.  And there will be undoubtedly be a further division even in the prison population between the classes - those who have money on their books and those who do not.

SNAKE BIT!!!

Labor Day weekend was exciting for me!  Sunday morning started as normal - early church, water the plants at the office, and then home.  Because it was such a nice day Josh, my husband, and I worked in the yard.  We started redoing a flower bed, pulling up all the old, dead, burnt up plants and replacing them.  I was pulling weeds.  I reached in to pull the weeds from a bed and I felt an intense, sharp pain.  

At first I thought it was a bee sting, but it was WAY more intense.  I saw two specks, and I mean specks, of blood.  I ran inside to wash it off, and I immediately felt faint.  It was surging through my whole body.  My husband came in right after me, and loaded me in the car saying it was a copperhead snake.  What?!  I grew up in the country and never got bitten!  

We made it there in less than 15 minutes from the bite.  That, the doctors say, is what saved my finger and hand...his quick reaction.  Below are a couple of the pictures from the ER.  Somehow, I forgot about a camera after I was wheeled into ICU.  I am happy to report that after 2 days in ICU and another in a regular room my finger, hand, and I will be fine...eventually...and with a story to tell!

Below are pictures taken today, 2 days after being released from the hospital.  I still can't straighten it, and it's still pretty swollen.  However, wouldn't you agree that it looks much better now?!

Texas Crime Lab Under Scrutiny

The September issue of D Magazine has a very interesting article worth reading.  It's called "Bad Blood at the Dallas County Crime Lab."  Spend a few minutes and take a read.

Shameful Statistic

Did you know that the United States has over 2,500 youth offenders serving life in prison without the possibility of parole?  Sadly, a staggering percentage of these youths (over 1/4) are serving this sentence for felony murder, meaning that the child was not the actual "trigger puller." (think the get away driver in a bank robbery gone awry scenario where the child is the driver)  

Now, take a guess how many youthful offenders are serving life in prison without the possibility of parole in the rest of the entire world.  That's right - Zero.  Zero.  Think about that.  

That statistic alone is shocking.  But consider that it has only been within the last several years that it has been held cruel and unusual to execute children for criminal acts (2005 to be exact).  And it was only last year that the US Supreme Court held that children cannot be given life in prison without the possibility of parole in non-homicide cases.  

Americans boast at being forward thinking and progressive.  And we are in many respects.  But it is shameful when we are the only nation in the entire world to sentence children to life in prison without no possibility of parole.

This should enrage you.  Check out the Campaign for the Fair Sentencing of Youth.  Pay attention.  Take a stand.  Get involved.

Texas Likes Cheap Justice...But for Whom?

In a follow up to yesterday's post, today's post recounts one of the harsh realities of the court appointed system.

36+ hours of trial preparation, interviews, research, and pretrial settings; the hours spent in the courtroom arguing in front of the jury and the judge on Monday and Tuesday.  And these are the only hours I logged for reimbursement.  I didn't even request payment for some of this time.  Never mind the thinking and planning that goes on all hours of the day for the sole purpose of protecting my client.

I have been on this case since November 2010, so we are talking about 10 months of representation all culminating in a jury trial (that resulted in a 30 minute acquittal by the way).  So I turned in my reimbursement form this morning only to have my bill slashed by more than 50%.  It is a well-known fact that court appointed lawyers are underpaid.  I knew that when I agreed to take court appointments.  But this is outrageous.

The judge's act in slashing my bill is a slap in the face.  It is the unspoken statement to me that my work isn't worth that much.  The statement that you shouldn't have spent that much time on this case.  That is what is troubling, unsettling.

Had the case plead out or had the jury convicted, would my bill have been slashed?  I think not.  After all, in such a scenario the court always orders the defendant to repay the court appointed lawyer.  That money doesn't come out of the county's coffers.
 
The problem with all of this is that the bottom line impact is not on the court appointed lawyer but on poor people who are accused of crimes.  Why would a lawyer agree to take court appointments and do a good job, the same job as he would do for a paying client, knowing that the pay will be de minimus - that you will basically lose money by taking these cases or work for next to nothing?

The problem with this judge and/or an indigent defense plan that caps a lawyer's compensation at a minimum dollar amount is that it discourages good lawyers, diligent lawyers, smart lawyers from taking appointments.  It encourages lawyers to plea out court appointed cases.  Why spend the time and effort if you don't get paid and if it's easy to sign plea papers?

Am I mad and upset that I didn't get reimbursed even half of what I submitted?  Of course.  But it's even more frustrating that the result of this system is to discourage the good, smart, diligent, hard-working lawyers from taking appointments to the detriment of all of those people who are financially unable to afford a lawyer on their own.  Shame on you Denton County and any other county with an appointment system that contributes to this problem.

They can slash all they want.  I will continue to take appointments because I refuse to contribute to a system so eager to plea everyone out, and I believe even the poorest among us deserves a good, hard-working defense lawyer who isn't just concerned with the bottom line.

NOT GUILTY

Fresh off a 30 minute Not Guilty on an assault family violence jury trial in County Criminal Court 1, Denton County - what wonderful words to hear!  What's even better is that it was a court appointed case.  This just reaffirms my reason for being on the court appointed list - everyone needs a good lawyer; one who's not just in it for the money.

The complainant (girl) had a busted lip, and pictures were admitted.  2 Carrollton police officers testified as well as a 911 caller who saw most of what happened.  I represented the male.  He followed my advice and chose not to testify.  I got a self-defense jury instruction from the judge.

I am very proud of my client for having the guts to go to trial.  The initial offer was significant jail time, and right before trial the prosecutors made him a probation offer.  However, after living with the anxiety of the case for over a year he turned it down.  Now he is entitled to have the record expunged and put this behind him once and for all.

The Erosion of the Exclusionary Rule

In 2007, in Greenville, Alabama police stopped Stella Owens and Willie Davis.  Ms. Owens was thereafter arrested for DWI and Mr. Davis for giving a fake name to the police.  They were both put in the back of the squad car.  The police then search the car Owens and Davis had been driving.  They found a revolver in Davis’ jacket…another criminal charge.  Davis v. United States

At the time of the search of the vehicle incident to arrest, the police complied with the then existing law – authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants.  However, while Davis’ case was pending on appeal, the Supreme Court decided Arizona v. Gant, 556 U.S. __ (2009), and overruled the longstanding "search incident to arrest rule" in favor of a rule that allows a search of only (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.  The search in Davis, therefore, turned out to be unconstitutional under the Court's rule in Gant.

To discuss all of the cases contributing to the recent erosion of the exclusionary rule is an academic paper rather than a post on a blog.  However, the Court’s opinion in Davis is the most recent contributing factor to its all but certain demise.  The current Court held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule regardless of any Fourth Amendment violation. 

According to the current Court, the sole purpose of the exclusionary rule is to deter Fourth Amendment violations.  Never mind that previous Courts have adopted a more expansive view of the exclusionary rule and held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.”  Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568–569 (1971).

Laws are passed every session that are applied retroactively.  Sex offender registration laws come to mind first.  Why not allow the exclusionary rule, a bedrock of our constitutional jurisprudence, to be applied retroactively, too, just to even things out?  If nothing else, the silver lining this case stands for is that police will have to be keenly aware of current Fourth Amendment law and conform their conduct to the same.

Put Down that Phone

It's tucked away in House Bill 242, but it's there.  Yes that's right.  The law we all knew was coming is officially here, and it's not such a bad idea actually.  NO TEXTING WHILE DRIVING unless you're stopped!   Not just in a school zone anymore...don't do it anywhere.  The penalty can be a fine not to exceed $200, up to 30 days in jail, or both a fine and jail time.  A judge also has the option of suspending a person's DL upon a conviction for TWD.

Aggravated DWI...Even if it's Your First

House Bill 1199, creating enhanced penalties for even first time DWI offenders, went to Governor Perry's desk on May 30 for signature.  The law takes effect 9/1/11 and will undoubtedly pass.  A first offense DWI, regardless of the breath, blood, or urine result, is a Class B misdemeanor.  Well, not anymore.  Now, a first time offender will find themselves charged with a Class A misdemeanor offense if it's shown at trial that the person's breath, blood, or urine at the time of driving is .15 or higher.  This means enhanced penalties. 

It is problematic though based on the theory of retrograde extrapolation.  A person could still be in the absorption phase at the time of the test.  The time of the test is always after the stop (i.e., time of driving).  Therefore, a person could actually be less than .15 at the time of driving but at the time of the test an hour or more after the driving a person could very well be at or over .15.  Remember the offense is driving while intoxicated and the only number that matters is the number at the time of driving. 

This is very problematic and yet another good reason to refuse the breath or blood test if you have any doubt that you are .08 or more.

No Deferred for DWI's...and That's a Good Thing

House Bill 189 the Deferred Adjudication bill applicable to DWI's did not pass!  Although the bill made it through the house, amendments to the bill made it unrecognizable, and the Senate basically never paid it much attention.  This is a good thing.  It was deferred probation by title only, not substantively.  As proposed, it would have required mandatory ignition interlock (blow and go machines) and the accused's record, like in family violence cases, could never be sealed, making the "deferred" useless. 

Sacrificing Freedom for Security

It's the Memorial Day holiday which means it is another "No Refusal Weekend" for law enforcement across the state and country.

"No refusal" simply means that should you find yourself stopped, under suspicion of DWI, and then arrested for same, despite your refusal (however polite and well articulated) to provide a breath or blood test at the invitation of law enforcement, your blood will be forcibly drawn from your body.  Where unauthorized by statute (the taking of a blood sample despite an accused's refusal is permissible in some cases), police will obtain search warrants from judges who have volunteered to be awakened at all hours of the night this weekend for this specific purpose.

 My very real fear, conjured by these political/law enforcement campaigns, is that our country is willing to sacrifice our liberty and freedoms for a temporary sense of security.  This is not a new fear.  After all, it was Benjamin Franklin who said, "Those who desire to give up freedom in order to gain security will not have, nor deserve, either one."
As May draws to an end The Patriot Act is again a major focus in Congress. Three provisions of the Patriot Act are expiring at the end of this month.  For almost ten years now the Patriot Act has given the government too much leeway to pry into our private lives.  While I have no doubt that the original purpose of the Patriot Act was to protect our country (and what person, by the way, could vote against something called "The Patriot Act" without severe criticism from the fear driven majority), that Act has curtailed our constitutional freedoms for which so many died. 

Take some time this Memorial Day and think for a moment about what it was for that so many of our countrymen sacrificed and continue to do today. If you know a veteran, say thank you.  Educate yourself about the provisions of the Patriot Act, contact your congressman, and remember, no matter what they call it, you can still refuse.  Just because the police get a search warrant doesn't mean it's over - they have to do everything procedurally and constitutionally correct...

How Definite is the 4th Amendment's Line at the Entrance of Your Home?

In 1980, 31 years ago, the United Supreme Court clearly said

"The Fourth Amendment has drawn a firm line at the entrance to the house.  Absent exigent circumstances, that threshold may not be reasonably be crossed without a warrant."

Payton v. New York, 455 U.S. 573 (1980). This week, with its opinion in  Kentucky v. King, the Supreme Court made that line much less firm.  Kentucky v. King, No. 09-1272 (May 16, 2011).

In King police followed a suspected drug dealer to an apartment complex. They smelled marijuana outside anapartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment.  The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others.  (incidentally, and unfortunately for Mr. King, none of these people were the original drug dealer the police were following) The police saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search.

Circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape.  However, there's an exception to the exception; it's called "the police-created exigency exception."  Police cannot create or manufacture the exigency themselves for purposes of contravening the warrant requirement.  That was Mr. King's (losing) argument in this case (that the police created the exigency themselves). 


While Mr. King lost, the US Supreme Court has some strongly worded "advice," in dicta, for citizens in its recent opinion.  So take heed, know, and exercise your constitutional rights:

"When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U. S. 491, 497–498 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”).When the police knock on a door but the occupants choosenot to respond or to speak, “the investigation will havereached a conspicuously low point,” and the occupants “will have the kind of warning that even the most elaborate security system cannot provide.” Chambers, 395 F. 3d, at 577 (Sutton, J., dissenting). And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.  Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue."

So King leaves us to wonder, as Justice Ginsberg does in her dissent

"How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?"

We Don't Have Debtor's Prisons in this Country!

I was court appointed to represent a client back in 2010 on 5 misdemeanor charges.  The orders appointing me indicated that I was appointed without reimbursement, meaning that my client was so poor that he was not ordered to pay the court back for my representation.  The cases were disposed on October 1, 2010, and he was released from jail having fully discharged his sentence on October 27, 2010.

Earlier this month, May of 2011, 6 months after the case is totally over, my client calls me and tells me that there are 5 warrants for his arrest for his failure to pay court costs!?  We don't have debtor's prisons in this country!

So, I immediately started researching and preparing Motions for Recall of Capias Pro Fine Warrant for Issued for Non-Payment of Indigent Court Costs.  I am very happy to report that the judge waived all court costs and recalled all of the warrants that had previously been issued for my client's arrest for his inability to pay the court costs.  He was never arrested on these warrants, thank goodness.

I am very proud of him for standing up for his constitutional rights rather than just ignoring the warrant notices or laying out time that the judge ordered but that is completely unconstitutional.  Today has been a good day in Denton for my client and our constitution!

Up and Running!

I'm all moved in at my new office at 1409 North Elm Street and am up and running!  Starting my own practice is a long dream being realized!  I'm so happy to be sharing space with Richard Gladden, the foremost scholar on all things James Cannon; Doran Sauer, one of the newest members of the bar; and Joann Gulley the best paralegal ever!  We're happy to serve you.  Come by and check it out!