Thursday, June 28, 2012

A Big Decision...that Makes Sense

The focus today is solely on Obama's healthcare law that the Supreme Court upheld.  However, there was another opinion handed down today - in the shadow of the healthcare decision - that evokes an equally guttural and emotional response...but that makes perfect constitutional sense.

The lies were horrific and unthinkable.  It's maddening.  Xavier Alvarez openly claimed to have served in the military, claimed to have been a retired marine of 25 years, and to have been awarded the Congressional Medal of Honor in 1987.  All were lies told for no other reason than to make himself look better at his local water board meeting.

Alvarez was indicted and convicted for violating the Stolen Valor Act.  In principle every American would agree with the Act - to punish those (like Alvarez) who lie about military service, especially falsely receiving military decorations or medals.  Alvarez argued the Act violates the First Amendment.  Today the Supreme Court agreed, and it makes sense once the emotion is removed from the decision making process.

The opinion absolutely "rejects the notion that false speech should be in a general category that is presumptively unprotected." The Court notes that "[t]he Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace."  In this case, the government simply did not have an "actually necessary" and compelling enough interest in restricting the content based speech. 

Alvarez's speech is, unquestionably, the speech we detest.  However, as the US Supreme Court noted "[f]undamental constitutional principles require that laws enacted to honor the brave must be consistent with the percepts of the Constitution for which they fought."  The Act simply cannot stand up under constitutional scrutiny.

The Court of public opinion has unanimously judged and convicted Alvarez, and there will be no appeal.  He will be forever stained with his scarlet lies.  Thankfully, though, "[t]here is nothing that charlatans like Xavier Alvarez can do to stain the medal winner's honor."

Tuesday, June 19, 2012

Just as Good

Ask any criminal defense lawyer, and he/she will tell you that 2 of the greatest sounding words in the English language are "not guilty."  There's just nothing quite like it - the satisfaction and adrenaline that comes with those 2 words after a hard fought battle for the underdog.

But I think there's something equally as good.  It's not words.  It's the look on a client's face when you have truly made an impact in their life - the look that says all that words cannot convey.  The look that says you have changed my life.  I am forever different now in a very good way because of you.  You are more to me than just my lawyer.  You helped me with not just my case, but you really cared about me and that made the difference in my life.  

I was privileged to get that look today.  I was both humbled and proud to get that look - and words to go along with it - but the look said it all.  That's the kind of thing that makes your day as a lawyer and keeps you going - to know that you've made a lasting, positive difference in someone's life.  After all, that's why I choose to do this work every day.  

And to the person who gave me that look (you know who you are), I'm very proud of you.

Saturday, June 16, 2012

Be Honest

Thursday morning, I showed up to court ready for trial.  It was a DWI (one of only 2 "opinion" crimes, in Texas, by the way - the other is obscenity).  We started jury selection.

The panel consisted of 20 people from which 6 for our jury would come.  They walked in single file and looked just like ordinary people.  The judge began first by giving some very general instructions and swearing in the panel.  Everyone took an oath and promised to tell the truth to whatever questions were asked of them by the prosecutor and I.  Then, the prosecutor made his presentation.  With the exception of 2 gentlemen on the panel who would clearly vote guilty every time without hearing any evidence at all, the panel seemed pretty neutral. 

Then, it was my turn to find out as much as I could about these people in 45 minutes.  45 minutes sounds like a long time, and most all judges think it's more than enough time.  However, it's 45 minutes to talk to 20 people, tell them a little about the law, and find out what they really think about it.  

It's important, especially from the perspective of the accused, because you need people who can actually apply the presumption of innocence, believe in the 5th Amendment, and apply proof beyond a reasonable doubt.  These are the 3 cornerstones of justice system, and they've been around and unchanged since the very beginning of our nation.  Think about how often the legislature meets and makes new laws and amends preexisting laws.  Yet, these cornerstones - the presumption of innocence, the 5th Amendment, and proof beyond a reasonable doubt - have remained unchanged.  They are that important.

Thankfully, people told the truth.  The great majority of the panel understood the 5th Amendment and the presumption of innocence but either didn't agree with or couldn't apply these principles.  Mind you, all these constitutional principles don't just come from the lawyers - they come from the judge.  Even after explaining and discussing the 5th Amendment, people overwhelmingly believed that not testifying is an admission of guilt and would consider it as such.  They also believed that if a person is on trial it means they must have done something wrong - they must be guilty.  

As a criminal defense lawyer it is hard to hear that the majority of people in the room already believe your client is guilty and expect you to prove that he's innocent.  It's a hostile environment.  It makes you and certainly the person on trial question whether there will actually be a fair trial.  It's disappointing.  All of these jurors are U.S. citizens.  Wouldn't they want the constitutional principles that have been around for over 200 years to protect them from a wrongful conviction if they were ever accused of a crime or would they feel confident with jurors like themselves?

Thankfully, they told the truth, though.  In the end, there weren't near enough jurors who could follow the law - the 5th Amendment, presumption of innocence, and proof beyond a reasonable doubt - as given to them by the judge.  Because of that the judge declared a mistrial.

That doesn't make the case go away.  We get to come back another day and do it all over again.  And I sincerely hope that the next panel of jurors we get is as honest as this group was and that if any of these people are ever called for jury duty again they will continue to be honest.

Sunday, June 3, 2012

So You Messed Up on Probation...Now What?

If you were on probation, and you've messed up somehow there are some things you need to know.  First, although it's definitely time for concern if you've messed up, don't panic and shut down.  After all, you are still on probation.  Only the judge, not the probation officer, can revoke your probation.  Sure, probation officers will threaten and intimidate you.  They will tell you they have no choice but to file the paperwork.  But the filing of the paperwork (the motion to adjudicate or motion to revoke) doesn't signal the end of your probation.  You are still on probation.  So, continue checking in, continue doing your community service, continue doing your classes.  If you're behind on any of these things then catch up pronto.    

If you've had a dirty UA then before you're told by your probation officer start going and documenting your attendance at AA/NA meetings.  People (even probation officers, prosecutors and judges) are much more willing to help those whom they perceive as helping themselves.

If you've been arrested for a new offense then the first thing you need to do is talk to a lawyer.  Do not make the first call to your probation officer - no matter how well you think he/she likes you - without talking to a lawyer first.  Most probation departments have an unwritten rule that if a probationer is arrested for a new offense then they file a motion to revoke/adjudicate.  That doesn't mean there aren't things to do to mitigate any punishment.  Your lawyer will know what those things are.   

Always document everything you do on probation.  Always keep a copy of everything for yourself.  It has happened where a probation officer - especially one from out of county - mistakenly doesn't transfer all the community service hours, classes, etc.

Bottom line: if you ever have any questions while you're on probation ask your lawyer.  If you've messed up while your on probation - no matter how insignificant you think it might be - take the time to call your lawyer.  That phone call and advice could save you jail or prison time.

Sunday, May 6, 2012

Big Brother...Even in Your Car?

Would you think twice before purchasing a car if it had a built in alcohol detection system?  Or would you be all for it?  

Texas and many other states have laws that require an ignition interlock device on cars in certain situations.  For example, in Texas, the law requires installation of an ignition interlock device on a person's car if a person is charged with a subsequent DWI, is convicted of a subsequent DWI, or has a breath or blood alcohol score of .15 or higher.  Although some of those laws are nonsensical (why be required to have a machine on a car if you don't even have a car for instance), I think the great majority of people agree with them.  The great majority of people being those who do not find themselves in one of the aforementioned categories.  So back to the question at hand - alcohol detection devices coming as standard (not optional) equipment on all vehicles. 

That's the direction we're headed, and you can imagine why - there's lots of money to be made for the company who comes up with an unobtrusive vehicular alcohol detection device.  The technology can't be that far off either.  I think there would be a lot of objections to interlock devices (a.k.a. "blow and go's") because they're just too much of a hassel.  Secure continuous remote alcohol monitors (SCRAM) have already become the norm.  A SCRAM is an ankle monitor that's worn 24/7 that detects alcohol through a person's sweat glands.  Would it really be that hard to build that kind of technology into a a steering wheel of a car?  

There are definitely arguments to be made both way and too many questions to answer.  On the one hand, we all have an interest in not having drunk drivers on our streets.  On the other, what would be the threshhold limit?  After all, it's different depending on what state you're in.  How would the technology be able to tell if a person is over or under the legal drinking age?  It's not illegal to drink and then drive so long as you're not intoxicated.  Would the readings be reported to anyone?  Would the readings be maintained?  Would the readings be subject to subpoenas?  Would it be the start of an era where police wouldn't even have to stop and arrest a person for DWI - just receive a report and issue the warrant based on that?  

It's kind of a scary thought but legislation has alreayd begun being drafted around the nation.  And just think about seatbelts.  They haven't always been required in vehicles.  You could either buy a car with or without seatbelts.  Legislation changed that despite the opposition.  The argument was if you want to be dumb enough to not wear a seatbelt then that should be on you.  That argument works great for a seatbelt - you don't hurt anyone else besides yourself if you choose not to wear it.  It just doesn't work so great for acohol detection devices - the damge isn't always limited to the driver unfortunately.

Guess we'll see what happens.  I don't want drunk drivers on the road as much as anyone.  But I hate the thought of yet another intrusion by Big Brother and would oppose it.  It begs the question - are our homes next.....?  The slope is slippery. 

Monday, April 9, 2012

Prosecutors Withheld Key Evidence: The Field Isn't Level

The full story, as published in the Denton Record Chronicle, is below:

Prosecutors accused of withholding key evidence in assault trial

A state district judge has banned two assistant district attorneys assigned to his courtroom from returning, ruling that they committed prosecutorial misconduct and don’t have “the innate intellect of a fifth-grader.”

Bill Schultz and Forest Beadle were working as family violence prosecutors, trying Silvano Uriostegui on a charge of aggravated assault with a deadly weapon in the 158th District courtroom of Judge Steve Burgess. After Burgess’ March 2 ruling that they willfully withheld exculpatory evidence from the defense — evidence that would have helped in his defense — Schultz was moved to the district attorney’s civil division and Beadle was moved into the 16th District Court.

Both men declined comment, citing policy to refer questions to the first assistant district attorney, who acts as spokeswoman for the department.

District Attorney Paul Johnson has defended the two prosecutors, and Jamie Beck, first assistant district attorney, said they were not disciplined but rather counseled on the law as it pertains to the sections the judge ruled they violated during that trial. She said they would be required to take remedial courses in issues surrounding exculpatory evidence.

Beck replied in answer to written questions for this story that she did not believe the two were guilty of prosecutorial misconduct.

“I think the case was dismissed by the judge based on the judge’s findings that evidence favorable to the accused was not turned over to the defense and the judge found that action was willful,” Beck wrote. “We do not agree with that finding, but still will not seek an appeal that the judge abused his discretion, which is the standard on appeal.”

Defense lawyer Victor Amador represented Uriostegui at trial. He protested that he had not been given evidence vital to his client’s defense prior to the trial when the victim of the assault testified that she never saw her attacker’s face and referred to the person as “he or she.” She testified that she only told police at the time that she believed it was her husband because of his smell and because the sole of one boot looked familiar, according to court records.

Amador told the judge he advised his client to plead guilty based on a positive identification and that the prosecutors had known for a month what the victim planned to say on the witness stand but never told him that. Prosecutor Bill Schultz acknowledged on the witness stand that he knew but said he believed her description was a positive identification.

Amador asked the judge to grant a mistrial “with jeopardy attached,” which means that Uriostegui cannot be tried again on the charge. Burgess granted that request.

“This situation is unfortunate for everyone involved,” Amador said in answer to a request for comment, and he declined further statements.

The issues stem from a 1963 U.S. Supreme Court ruling in Brady vs. Maryland that addresses a defendant’s 14th Amendment rights to due process under the law. The court ruled that exculpatory evidence is material if the outcome of the trial would have been influenced had the evidence been disclosed to the defense. That case has become a benchmark for exculpatory evidence and lawyers commonly refer to these issues as “Brady issues.”

The Denton case began May 7, 2009, at an apartment complex in the 400 block of North Loop 288. A Denton detective wrote in an affidavit for Uriostegui’s arrest that officers found a broken window in a second-floor apartment and a badly injured woman on the ground. It was later determined that she had nine knife wounds, including two that burst her breast implants, and a broken back.

The victim was Maria Uriostegui. According to the police report, she told officers that she had separated from her husband and lived in the apartment with her two younger children. About a week earlier she had met a man on a Spanish-speaking chat line, and on that night she invited him to the apartment.

She told police that she was in her bedroom plugging a cellphone into a charger and the visitor followed her into the room. There was no light save for a television set. About that time someone started hitting her, she said, and she felt like she couldn’t breathe and had no strength. She told the officers that her attacker was her estranged husband.

The visitor, Pedro Jose Melgar, left before police arrived. They reported finding him at his apartment with knife wounds. He told them he did not know the man who cut him but that he had jumped through the window to escape.

Silvano Uriostegui was arrested on two charges of aggravated assault with a deadly weapon. The judge appointed two other lawyers to defend him before Amador took the case. Both the other lawyers asked to be released from the defense.

Amador was appointed in March 2011. He filed motions for discovery of evidence in the case, including a motion for production of evidence favorable to the accused. He received copies of various documents including the Denton detective’s affidavit naming Silvano Uriostegui as the person who stabbed Maria Uriostegui.

He never received any information that she was basing that ID on his smell and the sole of his boot, not on his appearance.

On Feb. 13, 2012, on the advice of his attorney, Uriostegui agreed to plead guilty and seek a jury’s assessment of punishment on the charge that he assaulted his wife. In return for the guilty plea, prosecutors agreed to drop the charges that he also assaulted Melgar, who disappeared after the assault and has not been found to testify against Uriostegui.

On Feb. 14, the prosecutors began their case before a jury. Court records show Maria Uriostegui testified that she had been married to the defendant for about 21 years and they have four children. She testified that after her husband’s business failure, he became moody and depressed and often didn’t go to work. She worked two cleaning jobs that put her out of the house from about 4 a.m. to 1 p.m. and then from 6 to 11 p.m. He was jealous and accused her of cheating. She moved out and filed for divorce.  She told Denton police she was afraid of him and obtained a protective order.

After a break in the proceedings during the jury trial, Amador asked the judge for a mistrial, based on the fact that the witness said she could not identify her attacker except by smell and the sole of his boot. This was different from her testimony in the hearing for a protective order, when she testified that it was her husband who attacked her, he argued.

Schultz argued that witnesses in family violence cases often change their testimony because of pressure from family, and that this was a prior inconsistent statement, not perjury. Schultz said that he worried at one point because another man had once assaulted the victim and after he learned that she claimed not to have seen her attacker’s face, he checked on that man and learned he was in prison and could not have been the person who stabbed her.

At that point Burgess questioned Maria Uriostegui himself. She told him that she “supposed” it was her husband because he had threatened her and because the man smelled like her husband. She said that she told the prosecutors this earlier. Burgess at first denied the mistrial but under further discussion, he granted it.

The defendant had been free on $100,000 bail, and Burgess revoked bail pending a retrial.

Three days later Amador filed a writ of habeas corpus, asking the judge to reinstate bail. He also asked Burgess to rule that his client could not be retried on the case because the prosecutors intentionally misled him about the key element of the case, the identification by the witness that it was her husband who stabbed her.

Amador told the judge that the prosecutors had forced him to ask for the mistrial based on leading him to believe the victim had positively identified his client when she had not. Burgess ruled March 2 the defendant could not be tried again for the aggravated assault against his wife.

But that still left the case against him in the stabbing of her visitor that night. It was supposed to be dropped in the plea bargain, but the plea bargain was not fulfilled. Since Maria Uriostegui has testified that she cannot identify the man who came into her apartment that night and since the other man has disappeared, it is unlikely that trial will ever take place. Beck, the assistant district attorney, acknowledged in a written reply that Melgar has not been found and it was unlikely her office would proceed on the case.

Texas Disciplinary Rules of Professional Conduct provide that such conduct as the two prosecutors were found to have committed should be reported to the disciplinary council of the State Bar of Texas. Johnson, in a three-page letter to the council, wrote that he was satisfying that requirement but that he was not submitting a grievance against Schultz and Beadle. He defended their actions, stating that they did not intentionally withhold evidence.

In his ruling on the writ of habeas corpus, the judge was detailed in his criticism of the way the evidence was handled.

“My jaw dropped to the ground when Mrs. Uriostegui testified the way that she did,” Burgess said in his ruling. “I was shocked. And for the state to actually know this and not disclose it, the only good thing I can say from this miserable hearing is at least Forrest Beadle told the truth and was not evasive and was straightforward. I don’t particularly like his answers, but he at least was honest.”

Burgess apparently was referring to notes Beadle made during the hearing that were subpoenaed by Amador that Amador was making another “[expletive] Brady motion.”

Burgess said that he could not fathom how someone who had been to law school and had practiced as long as Schultz and Beadle could not know they were violating rules of exculpatory evidence.

“And how disingenuous it is to get up here and testify that you don’t think that it’s Brady that the victim can’t identify by face or by anything other than smell and a boot who the attacker is ... ,” he said. “I’m going to have to ban both Mr. Beadle and Mr. Schultz from my courtroom. They’re not allowed to appear in this courtroom until I rule otherwise.”

Burgess said that it was particularly sad that the actions of the prosecutors robbed Maria Uriostegui of justice for the injuries she suffered. He found that the prosecutors goaded the defense into entering a plea bargain to avoid an acquittal in the case.

“A woman that was knifed nine times in the gut and elsewhere doesn’t get justice because nobody can read Brady, understand Brady, or has the innate intellect of a fifth-grader,” the judge said.

Monday, April 2, 2012

Out of Sight, Out of Mind

I believe that prosecutors should not be allowed to offer jail time or prison time without first having visited a jail and/or prison.  Without that experience, a prosecutor simply can't appreciate the gravity of their extended offer.  Unfortunately, the sad truth is that many prosecutors have not ever visited a prison and/or jail.  And the sad truth is that most jurors haven't had that experience either.  It's plea a case or give a sentence and then out of sight and out of mind.

For those of you who haven't, it is quite an experience.  First of all, even lawyers have to call ahead - not just an hour ahead but usually at least a day ahead.  Then you have to fax a copy of your bar card and driver's license for the certain background check that occurs prior to your entry in the vicinity.  Then, you have to call the prison the day before to confirm your visit.  Once you arrive, be prepared to be searched...everywhere...your car, your body, your bags.  Be prepared to sign in and show your ID multiple times.  It's more extensive and intrusive than an airport search.  It's one thing to see it on television and the movies yet quite another thing to experience the long walk between guard towers occupied by armed guards watching your every move firsthand.  There is nothing pretty or happy about it despite the immaculate landscaping.  

And that's not even an account from a prisoner's perspective.  Just imagine what it would be like to be a prisoner in that environment - behind society's closed doors.  How must they be treated, talked to? Out of sight, out of mind.  Now imagine spending years, day in and day out, in an environment like that.  I imagine if people really gave that thought then pleas offers and prison sentences would be shorter - more appropriate in most cases.  After all, we're dealing with people, and in the end it does no good to simply warehouse souls.

Monday, March 12, 2012

Throw Down

An interesting article from yesterday's New York Times:

It's really a great proposition especially for those cases where the risk analysis is minimal - like first offense misdemeanors for example.  It would force a tremendous reality check across the board.  Ask yourself: are there just more criminals today or are there just more rules to be broken?  I say it's the latter.

Saturday, March 10, 2012

Troubling Trend About Polygraph Tests

A polygraph is a lie detector test.  The theory behind a polygraph is that through physiological signs such as blood pressure, heart rate, etc. a machine can tell if a person is lying.  It's a pseudoscience.  Innocent people fail polygraphs and guilty people pass them.  They are not scientifically reliable.  The existence and results of polygraphs have never been admissible in court for any purpose, until now...

On March 7, 2012, the Court of Criminal Appeals decided Leonard v. The State of Texas.  Mr. Leonard had been placed on probation for injury to a child, a non-sex offense.  However, as a condition of his probation he was required to participate in some sex offender conditions.  One such condition was that he complete sex offender treatment and show no deception on polygraph tests.  As you may have suspected Mr. Leonard failed a polygraph test and as a result did not successfully complete sex offender treatment.  He was otherwise perfect on probation.  However, the State filed a Motion to Adjudicate.  The trial judge found him guilty on that basis and sentenced him to 7 years in prison.

Mr. Leonard appealed on the basis that polygraphs have always been deemed inadmissible for all purposes.  The Court of Appeals agreed and reversed.  However, the State of Texas appealed to the Court of Criminal Appeals.

The Court of Criminal Appeals reversed the Court of Appeals.  The decision, from the highest criminal court in the State, completely reverses course with all other Texas decisional law holding polygraphs inadmissible for any purpose.  The CCA now says that polygraphs exams are admissible in probation hearings because probation hearings are just "administrative proceedings."

As you might imagine, this opinion is very troubling.  The CCA didn't find polygraphs to be scientifically reliable or sound at all.  Instead of attempting to do that (an impossible feat) the CCA just made an exception for their admission - "administrative [probation] proceedings."  What's next?  This is a slippery slope for sure.

Let this be a lesson - don't ever agree to take a polygraph.

Wednesday, February 15, 2012

Not Bad

It's been a pretty busy but good couple of weeks.
  • invited to SPEAK at the 4th annual Smith County Criminal Defense Lawyers Association Criminal Law Seminar
  • invited to SPEAK at the TCDLA/Lubbock Criminal Defense Lawyers Association Prairie Dog Seminar
  • NOT GUILTY jury verdict in an assault family violence case 
  • theft case DISMISSED
  • a 1st degree felony manufacture/delivery case DISMISSED based on my MOTION TO SUPPRESS where the offer had previously been 12 years in prison 
  • burglary of a habitation case DECLINED
  • $50,000 felony BOND REDUCED to $7,5000 after a hearing

Monday, February 6, 2012

Tim Cole


Tim Cole.

If you haven't heard this name, remember it.  It is an important name.  It's a seminal name.  It is THE name in the criminal justice system that has changed...and is changing a major way.

Tim Cole died in 1999.  In Texas.  In prison.  And innocent
He died an innocent man.

Tim was a veteran and a Texas Tech student.  But in 1985 his life changed when he was falsely accused of rape.  He was offered probation before trial.  Yet he persisted in his innocence and went to trial.  He was convicted.  He was sent to prison.  He fought for his freedom.  He later became eligible for parole.  A standard condition of making parole that the parolee accept responsibility for the crime.  He could have been an extent.  Yet he persisted in his innocence.  He died in prison at the young age of 39, of complications due to asthma.  A travesty. 

In 2007, with the help of the Innocence Project of Texas Tim Cole was exonerated...posthumously.  A first in Texas history.

Today, the State Historical Commission acknowledged and recognized that the system forgot Tim Cole.  A another first in Texas history.  A marker was placed at Mount Olive Cemetery in Fort Worth near his gravestone to forever remember Tim and his life, his struggle, and the system that failed him.  

I was proud to be there for this historical event representing not just the Innocence Project of Texas but everyone who fights to keep the innocent from having to endure what Tim Cole endured. 

Tim Cole.  Remember his name.  The name that will forever be synonymous with actual innocence.  Remember what he stands for.  Don't forget him.  Fight to end injustice in our justice system.