Saturday, January 31, 2015

The Bulk Sale of Criminal Histories by Texas Dep't of Public Safety

 Grits of Breakfast ran a post recently centered on the Texas House Jurisprudence Committee's Interim Report for the 84th Legislature, published this week on January 21, 2015. (Interim Report). Grits focused on the Interim Report's recommendation to raise the age of criminal culpability from 17 years of age to 18 years of age. A great idea for a number of reasons.

I write to focus on another of the Interim Report's topics, Expunction, Non-Disclosure and, in particular, how the State's bulk sale of criminal histories to vendors thwarts the goal of both these remedial laws.

First some background. Expunction allows a person who receives it the right to deny a previous arrest and requires those with notice to destroy records of the arrest and any resulting prosecution. Non-Disclosure is less broad; it applies to most, but not all, charges for which the petitioner successfully completed a deferred adjudication probation. Non-Disclosure bars public dissemination of criminal records, but allows law enforcement and other government agencies access to them.

Now on to the Interm Report. It is to my reading a remarkable document. In discussing the purpose, and benefits to Expunctions and Non-Disclosures, the Interim Report nails it:
Having an arrest or conviction on a person's record can affect that person for life, making it harder to gain admission to a university, find a job or merely be approved for a lease on an apartment. Often times, arrests that do not lead to a conviction or that were disposed of after a certain amount of community service can still show up on a record, hurting their chances of fully participating in society. Expunctions and non-disclosures are meant to help keep an individual's contact with the criminal justice system from following them throughout life. Unfortunately, numerous complications keep many who might be eligible from applying for an expunction or non-disclosure and some argue that these complications have rendered such relief irrelevant.
Practitioners argue that not as many people who could benefit from an expunction or non disclosure are even trying to apply. Research suggests that less than 5 % of those who can take advantage of such relief actually do so. [When] they do participate, a number of roadblocks weaken the usefulness of going through the trouble of applying for an expunction and non-disclosure. The committee identified numerous weaknesses in the state’s expunction and non-disclosure laws.(footnotes omitted).
These finding and statistics affirm my anecdotal experience. The last sentence of the first paragraph quoted above is almost identical to something a criminal defense lawyer recently said to me. His point was with the internet and increased dissemination of criminal records, he has started advising clients that Expunction and Non-Disclosure are not necessarily cost beneficial. The Interim Report give reasons why my lawyer friend, if not right, is more right than I would like.

One of the chief problems identified in the Interim Report? The bulk sale of citizen's criminal histories to private entities by the Department of Public Safety (DPS) and local District and County Clerk offices:
The main sources for buying [criminal] records in bulk are the Department of Public Safety, which serves as a repository for criminal records, and local District and County Clerk offices. It’s unclear how much money clerks make from these sales, other than recouping costs associated with satisfying open records requests.
After the records are bought from DPS or another agency, some companies then turn around and sell that information. There is currently no way for the state to track who the records are sold to. This is where the main problem occurs since it’s difficult to find all places that have inaccurate information, especially if a case is expunged or a person is issued an order of non-disclosure. (footnotes omitted).
And this logical, but nevertheless disturbing tidbit:
 Because the indexes sold can contain millions of files, information released in bulk is typically provided through a File Transfer Protocol, or FTP, which is a standard network used to distribute large amounts of information over the Internet. The Department of Public Safety provides information on a weekly basis to companies that have an agreement with the agency for regular updates. Information not sold in bulk is readily available through local and state government websites, or by walking into a local courthouse.
Some of the entities that buy the data turn around and sell the data to paid subscribers. While state government entities are only allowed to recoup costs for the information, the reselling of such information has become a multi-million dollar industry nationwide. Companies that resell the data say that they are merely making available information that is already available to the public, and that the general public should have easy access to all data the government collects of its citizens. In their view, these companies are providing a public service by providing easy access to public information. But this is where the main issue regarding the data comes into play, since it’s difficult to track where the information ends up. (footnotes omitted)
Finally the Interim Report recites how our government sale of this data makes tracking and complete elimination of criminal histories subject to proper, lawful Expunction and Non-Disclosure extremely difficult:
There is currently no way to follow the dissemination trail of data after the first point of sale, which makes it difficult for anyone attempting to correct erroneous information. This is particularly bad for a job applicant accused of lying for not disclosing an expunged offense, even though they have received an order of non-disclosure or order of expunction. The situation has led some attorneys to advise their clients not to even seek relief under the statutes or encourage clients who have received relief to disclose an offense anyway to avoid the risk.
Even though courts and government agencies try to get the message out that an expunction or order of non-disclosure has been issued, they can only inform those who they know have the information. For an agency like DPS, that means only the company that bought the information from them is contacted. Past that, it's unclear whether anyone else gets the message and the information remains in the public domain.
I have written here and here about my experience with one website which collects this data, publishes it, then hides behind its nationality to claim it does not have to abide by Texas Expunction or Non-Disclosures laws. Oh, they will take the information down, but for a fee. Their source for the data is in all probability is the Texas Department of Pubic Safety.

The Interim Report says dissemination of this information has become a "multi-million dollar industry". The companies who profit by re-selling these criminal histories are sure to be lobbying against any changes that would curtail their ability to continue to make a profit doing it.

The Interim Report makes specific recommendations both to broaden the availability of Expunctions and Non-Disclosures and to better track criminal records sold once they leave government hands. I wholeheartedly support broadening availability of these two remedial statutes for the reasons stated in the Interim Report. Criminal histories should not be a life time card carried and required to be shown on request. We have not, yet, become the 18th century France of Jean Valjean in Les Miserable. It is the reason we have Expunction and Non-Disclosure laws on our books.

 I understand these records are public records when sold in bulk by DPS and/or local District and County Clerks. I subscribe to a such a records data base. I check it regularly to make sure Expunctions and Non-Disclosures I have secured for clients have been taken down. If meaningful Expunction and Non-Disclosure laws are to be kept on the books, however, something legislatively has be done to track and eliminate these records even after they have been sold.

Good work Texas House Committee on Criminal Jurisprudence, for a honest and informative Interim Report. I hope the full legislature acts on these recommendations.

Tuesday, January 27, 2015

The Devil Goes Down to Georgia

UPDATE: After a denial of clemency by the Georgia parole board, SCOTUS denied Hill's request for a Stay of Execution and Petition for Writ of Certiorari. Justices Breyer and Sotomayor dissented from the denial. As a result of the denials, Hill's death sentence was carried out by the State of Georgia as scheduled. Warren Lee Hill, Jr. was pronounced dead at 7:55 P.M. January 27, 2015.

The State of Georgia tonight intends to execute a human being everyone qualified to assess agrees is intellectually disabled. This punishment will be meted out despite the Supreme Court of the United States claim that persons of such limited intellectual functioning cannot be executed. If our Supreme Court declines to step in and stop this death, we have forfeited the right to say we are a nation of laws. 

Warren Lee Hill, Jr. murdered two people in cold blood. He may very well be the Devil incarnate. Who but the Devil himself kills not once, but twice?

How can anyone say the law has died with such a man?

Sir Thomas More, real life lawyer, writer, and English Lord Chancellor, who went to his death rather disavow his faith, gives the answer to his son-in-law, William Roper, in an imagined exchange from Robert Bolt's award winning play, A Man For All Seasons:
William Roper: So now you'd give the devil the benefit of law?
Thomas More: Yes. What would you do? Cut a great road through the law to get after the devil?
Roper: I'd cut down every law in England to do that.
More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down -- and you're just the man to do it -- do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.
We are a poorer, weaker and ultimately corrupt nation if Warren Lee Hill, Jr. dies tonight.

Sunday, January 25, 2015

Wasted Time, Money and Resources in Brazos County, TX

I have never been in a position of making policy and never will be. Yet nearly thirty years of law practice have given me a perspective on certain policy issues involving criminal justice. Tip O'Neill, the late former Speaker of the U.S. House of Representatives is credited with the quip that "All politics is local". If this be true, it would be wrong to criticize criminal justice policy everywhere but in the place where I live.

On two particular criminal justice issues, local Brazos County, Texas officials are ignoring tools given them by the Texas Legislature that I believe would save local taxpayers, prosecutors, law enforcement and, yes, defendants many thousands of dollars. My county is not unique in Texas by ignoring these tools. My county could actually lead from the front if minimal attempts were made to quantify the savings. Other mid-sized counties would follow.

Brazos County is unique demographically. As I have written before, more than 50,000 college students live in our environs, making individuals under 30 years of age more than a quarter of our total population of around 200,000. They are a tribe to themselves for the most part, not unlike other large college towns around the country: Athens, Georgia, Oxford, Mississippi, and State College, Pennsylvania. They are away from their parents for the first time in their lives, Unfortunately, I typically interact with them in one of two criminal justice settings: an arrest for marijuana or driving while intoxicated. 

Marijuana is what I want to focus on. The typical Possession of Marijuana (POM) case that walks into my office involves less than three grams. POM less than two ounces is a Class B misdemeanor in Texas punishable up to six months in county and a $2000 fine. POM more than two ounces, but less than four ounces is a Class A misdemeanor, with double the possible jail time and fine. 

I want to put those weights in into perspective. Two ounces of marijuana is equal to almost
57 grams. Yes, you read that right. A engineering student at Texas A&M University busted with a joint with a gram of marijuana is facing the same range of punishment as another person arrested with 55 grams of the same stuff. 

A gram is the equivalent of that package of sugar substitute you use at your favorite restaurant. In terms of weight it is the same as a a couple of paper clips.

I do not make laws, the legislature does. I use this phrase all the time to college students and their parents. I work hard to get the person, regardless of who they are, a deal that wold result in eligibility for expunction of their POM arrest. This most often means attempting to get their POM case dismissed. This can be done in a variety of ways, not important to this post. Sometimes, also for a variety of reasons, dismissal does not happen. 

 The dirty secret is they did not need to be arrested at all. Law on the books in Texas for almost a decade now allow law enforcement in my county (and any county in Texas) the authority to NOT arrest these cases, but instead to issue a citation to the defendant and release them. 

Let me illustrate this by hypothetical, one occurring almost every night where I live: Police officer encounters a  college student in a car that is stopped for speeding. The police officer smells marijuana, and asks the student if they've been smoking pot. The student admits smoking and directs the officer to the gram of weed he has in the console of his car, along with a pipe they brought along to consume the evil weed. 

College student is then arrested and charged with POM, less than 2 oz. and Possession of Drug
Paraphernalia, a Class C fine only offense. College student is taken to the police station or the county jail, sometimes both, eventually to make bail, usually in an amount of $2000-3000, which will cost him, his friends or parents around $300 if a bondsman is involved. Then, because they are a college student and concerned how the arrest will damage their future employment prospects, they come hire me or someone like me. We then endeavor to get the POM case dismissed so the college student is eligible to expunge the arrest under Texas law.

The arresting officer will be off the streets, transporting and filling out arrest paperwork for several hours, taking up the bulk of their shift.  

But here's the deal: The arrest never had to happen. 

Article 14.06 of the Texas Code of Criminal Procedure allows a peace officer in certain offenses to not arrest, but to  issue a citation with a specific time and location to appear before a magistrate. This section applies not only to small amount POM, the section also applies to Class A POM  - that is almost 104 grams (!!!) for goodness sake - but also other high volume non-violent crimes: 
  • Marijuana possession, (up to 4 oz)
  • Criminal mischief with less than $500 damage
  • Graffiti with less than $500 damage
  • Theft by check with less than $500 stolen
  • Theft of service with less than $500 stolen
  • Contraband in a corrections facility (B misd. only)
  • Driving With an Invalid License
When I read about jail overcrowding, counties diverting funds and increased hiring of peace officers, I think of the time, money and resources wasted because this law is not utilized. None of these mentioned issue are currently on the table in my county, but Nueces County and Kerr County are currently on track, or have voiced a desire to build new jails. I do not know the particulars of those counties, but it does not matter. I am not a fiscal expert, but I recognize a savings opportunity when I see it. Especially in College Station, home of TAMU, where I live. 

Here are some statistics: According to the Marijuana Policy Almanac, in 2007 (the latest data I could find), Brazos County ranked 91st out of 242 counties statewide in arrests per 100,000 residents. That puts us squarely near the middle of the per capita pack. When those same marijuana arrests are normed for individuals under 30 years of age, things change. For those aged 19-24 Brazos County was in the 38th percentile. For those aged 25-30 years of age, Brazos County was in the 13th  percentile for arrests. Not surprising given our college aged demographic. 

It should be noted, however, these statistics are from a website dedicated to marijuana reform (The Bulletin of Cannabis Reform), and are more than seven years old. Regardless of whether you partake in these stats or not, my message is we are wasting resources by arresting POM cases involving small, personal use amounts. This does not consider Driving With an Invalid License arrests which are even more problematic and costly. 

I had someone tell me the local bail bondsmen's profit margin is made primarily off bonds for college kids on DWI and POM arrests. "Yeah, they charge $300 a pop for these college kids who ALWAYS show up for court." That's the deal. My point is not to beat up on bondsmen doing their jobs, mainly because I am in the same boat. My point instead is the people making money off these arrests are people like me, criminal defense lawyers as well as bondsmen. 

The people who lose? The defendant who now has an arrest for an offense that he could have been cited for and my community, who loses the police officer's time while he babysits a kid who could have had been cited, released and ordered to appear before a judge instead of arrested.

I will write separately about pre-trial diversion and pre-trial intervention programs authorized by section 76.011 of the Texas Government Code. It is another cost saving, common sense program not used in Brazos County. Like cite and release, it would reap benefits that far outweigh the costs. 

Saturday, January 24, 2015

Killing the Mentally Retarded: The Warren Lee Hill Edition

What are you going to do Supreme Court of the United States (SCOTUS)? Is the law what you say it is, or is it what rouge states like Texas, Florida and Georgia want it to be? Are you going to enforce your authority in life and death decisions, or are you going to look away?

The State of Georgia has scheduled Warren Hill, Jr. to die on Tuesday, January 27, 2015 at 7:00 pm. The Georgia Supreme Court declined the opportunity to review a Georgia state district court decision that the recent decision of SCOTUS in Hall v. Florida should not result in further litigation of mental retardation (MR) for Hill regarding eligibility of the death penalty.

Hill has killed twice. More on this in a bit. It is these two cold blooded killings that punched Hill's ticket to the Georgia death chamber. Things got more complicated in 2003 when SCOTUS decided Atkin v. Virginia, which told states they could not executed the mentally retarded. There was, however, a wrinkle. A loophole allowing states like Georgia, Florida and Texas enough room to flout the decision. It is a concept known as "federalism" - the idea that states are given autonomy in implementing policy. In Atkins, Justice Stevens wrote the following couple of sentences:
 Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, 'we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.' (citation omitted).
Georgia, to its credit, pre-cursed Atkins by about a decade, passing legislation prohibiting the execution of the MR. The rub is death eligible defendants in Georgia have to prove MR beyond a reasonable doubt (BRD). In 2000 Hill had his day in court on the MR issue. At that hearing three health care professionals testified Hill was not mentally retarded, or more specifically, that he did not meet the clinical criteria existing at that time. Although Hill presented mental health professionals that testified their testing found Hill was MR, the court decided Hill had not established under the Georgia standard of beyond a reasonable doubt he was MR.

End of story, right? Atkins did not change state laws on the books that already provided procedures, and used in Hill's state claim, to decide MR. Although the burden of BRD was daunting, intellectually honest people looking for cover could take solace this high burden really was not an issue with Hill since three qualified mental health professionals testified Hill was not MR.

Then the twist.

About a decade later when Hill's lawyer sought to revisit the mental retardation decision, they discovered information that undermined the reliability of the 2000 court finding that Hill had not proved MR. The three mental health professionals who testified that Hill was not MR back in 2000 took a long look at themselves in the mirror and recanted. So much for intellectual cover.

Andrew Cohen reporting about it in The Atlantic provides details:
Hill's attorneys informed Georgia, and thus the rest of the world, that the state's three medical experts, who in 2000 had refused to diagnose Hill as mentally retarded, had all changed their minds. Their work had been sloppy, they confessed, and they had relied upon each others' conclusions more than they should have. They didn't adequately understand the nature of mental retardation as it related to Hill, they stated, but now they do: he is mentally retarded, they now believe, and thus should be spared.
The startling recantation by the state's own expert witnesses leaves Georgia today with very little to defend before the 11th Circuit. Today, the day Warren Hill was almost executed, the state can point to no expert who is on the record in this case as saying that Hill is not mentally retarded. Let me put it another way: There is no expert evidence supporting the state's effort now. All of the expert evidence supports Hill. On the issue of his mental retardation, under Georgia's statute, the case today is about as one-sided as a capital case can be.
These disclosures say much about the use of junk science ("Their work had been sloppy...") in criminal courts, but that is another topic for another time. Today is about our blood lust and the intellectual dishonesty we are willing to endure to feed it.

Cohen's words were written in August 2012. Two and half years later, here we are again, three days before Hill is set to die. No one contests Hill meets current clinical criteria defining MR. What does it say about us that state officials, judges, lawyers are still willing to send this man to his death?

How is this possible?

My answer to this question is hard. People who want Hill's sentence to be carried out begin with the two murders for which Hill was convicted. Two deaths at his hands. First was Hill's then 18 year old girlfriend, and then an inmate Hill was serving in prison with in 1990 after being sentenced in the first case. It helps to understand how officials and prosecutors can rationalize their thinking to a point that Hill is gaming the system to avoid his punishment, a tool of zealot anti-death penalty lawyers who do not really care if Hill is mentally retarded.

That brings up the important issue of adaptive behaviors. A person can fall below the intellectual functioning criteria for mental retardation, say 69-70, but be able to function well enough within their community to contribute meaningfully to it. So, for example, if a person with low intellectual functioning can drive, understand basic road signs, take care of their daily living needs, work gainfully, they may not meet clinical criteria for MR because of their ability to adapt their behaviors to the world around them. It is a practical test that requires more than a IQ test below 70. Clinically it makes sense.

Bring this to the courtroom and difficulty ensues. The law and the advocacy inherent to the law does not adapt well to the subjectivity of adaptive behaviors. This is what happened with Hill in his initial habeas hearing and the officials now advocating for his execution. They point to Hill's two murders and military service as evidence he has the adaptive behaviors to take himself out of legal (if not clinical) definition of MR. Add to it that he had "his day" and many others, in court, and these officials believe justice is not served by allowing Hill to escape the sentence a jury and litany of appellate courts have said should be carried out.

Texas has its own, and in my mind, worse perversion of Atkins and its grand moral pronouncement a national consensus exists the MR cannot be executed. Texas' solution to get out from under Atkins? Define adaptive behaviors in a way that basically exclude any MR person, except the ones who would be incapable of committing a murder in the first place.This was made possible in the infamous case Ex parte Briseno, in which my Texas Court of Criminal Appeals wrote the following concerning adaptive behaviors in Atkins claims:
Evidentiary factors that may be considered when making Atkins determination whether defendant is mentally retarded and therefore cannot be executed include: (1) whether those who knew defendant best during developmental stage, i.e., his family, friends, teachers, employers, and authorities, think he was mentally retarded at that time, and if so, whether they act in accordance with that determination; (2) whether defendant has formulated plans and carried them through, or whether his conduct is impulsive; (3) whether defendant's conduct shows leadership or shows he is led by others; (4) whether defendant's conduct in response to external stimuli is rational and appropriate, regardless of whether it is socially acceptable; (5) whether defendant responds coherently, rationally, and on point to oral or written questions, or whether his responses wander from subject to subject; (6) whether defendant can hide facts or lie effectively in his own or others' interests; and (7) putting aside any heinousness or gruesomeness surrounding the capital offense, whether commission of the offense required forethought, planning, and complex execution of purpose.
These Briseno factors are not clinically based. Factors (6) and (7) are not only not clinically based, they are essentially the factors prosecutors, judges and juries typically seize upon to decide  a death penalty eligible defendant has failed to prove they are MR.

This has led Texas to execute an individual who was almost certainly MR. Andrew Cohen wrote about Marvin Wilson, his crime and his almost certain MR in a piece entitled "Of Mice and Men", again in The Atlantic. About Wilson's intellectual functioning and adaptive behavior ability, Cohen wrote:
 Marvin Wilson, a man who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes, a 54-year-old man with an IQ of 61 which, his attorneys were quick to point out, is 'below the first percentile of human intelligence.'
We killed this man. Dead, at our beckoning.

Georgia says death eligible defendant's must prove MR beyond a reasonable doubt. Texas defines MR in such a way that it can virtually never be proven, even with the lesser evidentiary standard of 'preponderance' of the evidence. This is the case even if all the clinicians say the death eligible defendant meets the clinical definitions of MR.

See how that works?

Let me summarize: Even though every mental health and medical provider says an individual, like Hill, is MR, Texas and states like it ignore them. This is because SCOTUS allows states the opportunity to determine  "the appropriate ways to enforce the constitutional restrictions of [not executing the MR]", and by doing so, allows them to define an individual right out of the very MR protection given to them in Atkins.

Hey, but Hill did kill two people. And it is just a little law.



Sunday, January 18, 2015

SCOTX and CCATX Double Standards: Civil and Criminal Defendants and Junk Science Review

 In a system of justice, lives can be forever altered by what is considered legally recognizable evidence. So when the term "junk science" is thrown around, people get defensive in a hurry. Junk science can be an intoxicant that seduces unwitting, persuadable jurors. It is particularly dangerous when the bad science is packaged and delivered by an authoritative sounding expert. Junk science can be sold as sweet honey but when more closely examined turn out to be as foul as week old garbage.

If bad science makes it's insidious way into the jury box, can it be fixed on appeal? After all, science not built on empirical research, but instead on anecdotal observation is an anathema to any system of justice, civil or criminal. Is this not a true statement?

In cases tried to jury verdict, Texas appellate courts, although articulating the same standards for scientific reliability, have different methods for evaluating it. More importantly, Texas civil appeals use different standards for bad science firewall protection. In civil appeals that means a new, independent review of the purported science even if not otherwise properly preserved for review in the trial court.

 That last sentence should make criminal defense lawyers, who continually read the word "waiver" in their criminal appeal decisions, skin crawl. It does mine.

Yep, a civil defendant who botches preservation of error on expert testimony gets a whole new opportunity to complain about it on appeal by way of a legal insufficiency point. This type of error is never waived in civil appeals in Texas.

The magic is in the civil treatment of legal insufficiency of evidence review. An appellate court in Texas sitting with it's civil hat on makes an independent determination of whether the evidence is junk science,  and if it so finds, will carve it out of the evidentiary record, and decide the remaining evidence is legally sufficient to support the jury verdict.

When did that last happen in a criminal case? Never to my knowledge.

Innumerable civil defendants have been bailed out by appellate courts in this way. Insurance and corporate defense lawyers must say prayers of thanks every night to The Supreme Court of Texas (SCOTX), the court of last resort in civil cases in Texas, for the gift of an appellate mulligan.

This gift to civil defendants came by way of Merrell Dow Pharamaceuticals, Inv. v. Havner, 953 S.W.2d 706 (Tex. 1997), In Havner, SCOTX undertook independent review of the science that led to a plaintiff's verdict in a products liability case against the maker of a morning sickness drug, Bendectin. Basically, the plaintiff alleged a birth defect, limb reduction, was caused by her mother's use of Bendectin during pregnancy. Plaintiff used epidemiological studies to establish causation. 

Epidemiological studies examine existing populations to determine if there is an association between a disease or condition and a factor suspected of causing that disease or condition. 

SCOTX noted that although vetted before trial, the civil defendants in Havner had objected to "some but not all of [the causation expert] testimony" during trial. Havner at 709. SCOTX, however, did not find waiver. Instead SCOTX found the epidemiological studies that underpinned the plaintiff's claim were not sufficiently scientifically reliable and reversed and essentially rendered judgment in favor of the civil defendant. Havner at 730.

In other words SCOTX decided the trial judge was wrong, the en banc intermediate court of appeals reviewing the same evidence was wrong, and even though at trial the civil defense lawyers had not objected when they should have to preserve the error, the civil defendant was nevertheless right on the science and should win. Further, SCOTX found not only were the civil defendants right on the science, but that without the evidence, the jury could not have found civil liability. Legally insufficient evidence to support the verdict means no verdict. Civil defendant wins. Thanks for playing, Plaintiff.

Contrast this with a hypothetical criminal case that, unfortunately, in some variant happens all the time: Defendant gets arrested with, say, 1.5 grams of crack cocaine. A law enforcement officer, testifies that because this defendant was also found with, say, $500 in cash in denominations of $10 and $20's, the criminal defendant possessed it with intent to deliver. No empirical data citing studies this is true, just this law enforcement officer's anecdotal experience.

The jury also hears evidence the defendant has no job for which wages are reported to the government. Despite some defense evidence that the defendant works mowing yards and digging trenches for non-reported cash, the jury believes the cop. Defendant is convicted and sentenced to a full 20 years in prison instead of the maximum 10 years that would be applicable if the jury would have found there was possession without the intent to deliver.

What if the law enforcement officer's testimony came in without objection?

Waived for appellate review. Happens all the time in criminal appeals in Texas. Moreover, even if preserved, Texas appeal courts have found this kind of law enforcement "background" opinion testimony, though not necessarily empirically based, admissible. In other words this "science" is not subject to attack in the way it would be in a civil context under Havner.

Thanks for playing, criminal defendant.

What's the difference between the situation in Havner and my hypothetical? I believe there is essentially none.

This must make intellectually honest intermediate appeal court judges and their law clerks shutter. But there it is. Go figure.

Wednesday, January 14, 2015

Why DID the Chicken Cross the Road?

I practice in a small town. The county population here hovers around 200,000 people, at least according to the latest census bureau data. This figure is skewed, however, because of the presence of nearly 50,000 college students at any given time. The demographics here are unusual. It makes practicing law interesting because you never know what kind of case is going to walk up.

You get the idea. Suffice to say the town has the feel of living and working in a smaller place.

An old saw says it is "Better to be a big fish in a small pond than a small fish in a big pond." Perhaps. I may not be a proverbial biggest fish in my small pond, but after almost 30 years of practice, I have plenty of swimming room.

The funny thing is that it does not matter whether it is that one in a million case or another of what seems like an endless line of misdemeanor marijuana cases walking through my door. There is something humbling that brings me back to where I live and work.

Something like that happened Monday.

I was speeding back to the office in the afternoon. I had a brief due in an appellate court, though licensed in, I had not previously filed any briefing with. I was determined to get it out the front door, and on it's way. I was focused on it to the exclusion of just about all else.

There is an attraction to me of a lawyer from a small town with a legal assistant and a receptionist trying to change the law. It is one reason I like doing appeals. Easy to get an inflated sense of self importance. "Gettin' too big for your britches" as my grandmother used to tell me.

Humble pie always awaits.
.
I turned onto the street leading to my office. Maybe 3 blocks away from it, and not more than 5 blocks from the courthouse where I go almost every working day of the year, I hit my brakes. Hard. What for, you ask?

Chickens! Chickens crossing the road! The jokes write themselves. I had just enough time to get out of my car and snap a photo of my fowl feathered friends crossing in front of me.

Leave it to our non-flying avian friends to teach me a lesson. I am still a lawyer in private practice in a small town.

Humbling in the best sort of way.

I wonder if they have those yard birds wandering around or near the Harris County Criminal Courthouse in downtown Houston?

Oh, wait. They would have to wait in that line that wraps around that huge building every morning! Never mind.

Oh, my little town.

Sunday, January 11, 2015

To the Kid I Saw at Target Yesterday

I have written before about my eleven year old, autistic son. He is non-verbal and contorts his body to gain sensory perception. I sometimes imagine this as a possible superpower. We take for granted the way we see, hear and sense of world. How does my son perceive it? Does he see different images or hear subtle tones that give him special insight the rest of us, ingrained in our "normal" cannot perceive?

This set of behaviors is exaggerated when he is out in public, experiencing new smells, sounds and sights. He is always game for trips like our weekly sojourn to the grocery store, or another of his favorites, Target. In these familiar places the behaviors are at their autistic height. New experiences are ready for him to perceive while safety in the care of people he trusts. It is like a perception amusement park for him. He contorts, jumps and claps throughout.

Yesterday we traveled to our local Target store to pick up a prescription and sundry odds and ends. While at check-out I spied a kid, a boy, around my son's age. He had red hair, was in athletic shorts and long sleeves. His mother had a matching shirt. They may have stopped by Target after some kind of athletic practice or game.

"The Stare" as I call it is not a new phenomenon, and a phenomenon I understand.

This week, however, has been different. A week of stress, demands and deadlines. And this kid was really staring. Not the usual discreet stare, which can come in several variants, I mean the big, constant stare.

The kid's mother was busy checking out. They were situated at a cashier station ahead of us in the configuration of the stations at this particular Target store. So when the boy continued to stare at my son's odd, twisted upside down pose, I stared back at him. The kid did not look at me. I turned forward to check the progress of the cashier in completing our little transaction, then turned back around to check the progress of my contorted son and his starer.

Still staring.

 Again I stared right at the boy. He looked up at me, realizing for the first time I was staring at him stare at my son. I am not sure what I expected, really. Embarrassment at being caught staring at a child with limitations? Perhaps a quick look away, retreating to the safety of his busy mother? An apology?

Nope. Instead the boy never missed a beat. He looked at me, held up his right hand in a wave and mouthed one word: "Hi". Who was embarrassed now? My left hand on my contorted son, I raised my right hand and said hello right back.

John Patrick Shaney offered up a pithy tweet (Thank you Mary Karr!) this morning, saying it better than I ever could:
Epiphanies, even rough ones, always make life better. It is illusion that causes the most pain. 
 The kid was curious, that is all. He was not being malicious in any sense in the word. I was hoping to teach the kid not to stare, right? Why? Instead I was the one who received the lesson: I need to worry more about my sensory perception. Curiosity is a good thing. Especially in the young. I can still learn.

Good luck and Godspeed, young man.




Tuesday, January 6, 2015

Alice's Adventures On Northgate

She was what I call a "china doll" client, and that is meant in the best sort of way. A Texas A&M University (TAMU) student from a great family. A freshman, a youngest child, her father and older siblings all TAMU graduates. She was the product of a culture that considers TAMU an extension of their public schooling. I will call her Alice, because her first sojourn on Northgate made me think of her doppelganger of Lewis Carroll fame.

Her ambition on matriculating to TAMU? She wanted to go to work for a well known service organization. The reason? Because it had given so much to her over the years. Seriously, and as will be seen, this was not just a later construct to get her a better deal with prosecutors.

Like so many freshman, Alice decided to go "on Northgate" as they call it locally. More simply, she went to the bar. She and one of her siblings, still a student at TAMU, went to the Northgate Entertainment District across University Drive from the TAMU campus. It is a collection of bars and nightclubs patronized primarily by students from TAMU and another college, the Bryan campus of Blinn College.

Here's the rub: Most of the bars on Northgate allow patrons under 21 years of age onto their premises, but, of course, cannot let them legally imbibe, or even clutch, alcoholic beverages. On her first voyage on Northgate, early in her freshman year, Alice was confronted by a undercover police officer who saw with the inevitable adult beverage in her hand. She was not intoxicated. Not even close.

Who expects 18-20 year olds who are in a bar mixing with a bunch of people over 21 years of age and can legally buy and drink alcoholic beverages NOT to try and drink the same beverages?

Uh, hello. Nobody, as my sister would have said when she was 18 years old.

Alice froze. She had never been confronted in this way or context before. It was loud. The police officer had a badge, but it was dark. She made the wrong decision, giving her older sister's name and date of birth to the lawman.

BOOM. Instead of a Class C Minor in Possession (fine only not exceeding $500), she was arrested, cuffed and stuffed for a far more serious Class A misdemeanor offense (up to a year in county jail and a fine not more than $4000) for providing a false or fictitious identification to a police officer.

Eventually, and after plenty of work, the case was dismissed and refiled as a Class C, fine only offense (in addition to the MIP). After successfully completing the deferred for the Class C, the Class A arrest was subsequently (2 years after arrest) expunged.

Unfortunately, problems caused by Alice's arrest persisted.

Although expunged Alice wanted to go to work for the aforementioned Service Organization after she graduated from TAMU. When she googled herself in preparation for the application process, a organization I have mentioned before, "Mugshots.com" still had the arrest and prosecution record up. They demurred when asked to take it down, saying they were a Belize LLC and not bound by the laws or the State of Texas. Ultimately mugshots.com was dealt with, but Alice was having to deal with this arrest some four years after it occurred, and a full two years after it had been expunged.

I get that she could have avoided the whole thing by upping her real identity and taking the hit on the MIP. But does her snap judgment to lie, followed almost immediately by her upping her actual name and date of birth, justify all that happened? Maybe. Consider this, though: When you throw 18- 23 year old hybrid children/adults together in a hormone filled atmosphere stoked by legal sale of alcohol to some, but not all of their patrons, what in the name of Sam Hill do you think is going to happen?

 Good golly, I am sure what happened to Alice is a scenario of rinse, dry, repeat every night in college bars in Austin, San Marcos and Lubbock. Well, maybe not Austin.

Bar owners want the benefit of having the 18-20 year olds, particularly the females, in their bars. It's about the money. But, for the love of Pete, something should be done in a world of instant access to criminal records, even if expunged, and websites like mugshots.com that, regardless of the later legal annulment of the arrest, want money to delete record of it.

More to come later on exupnction, a term thrown around much, but little understood. Alice got her job with the service organization and when I last spoke to her was doing great. It is just a shame it took so long to get her from point A to B.

Many without the financial resources she had available would not have gotten there. That is the real shame.