Tuesday, April 7, 2015

"The Rule" and Civil Penalties for Pot Get Public Hearings

UPDATED 05/06/2015 - Brian Rosenthal follows up his story cited below from the Chronicle with news of passage of Rep Moody's civil penalty bill, HB-507. With the full complement of the supporters present, including Rep. Terry Canales, the house Criminal Jurisprudence committee approved HB-507 by a 4-2 vote. The bill seems destined to die in the Calendar Committee without being brought to the floor for a full vote, says the story.

UPDATED 05/04/2105 - From a story from Brian Rosenthal of the Houston Chronicle, The House Jurisprudence Committee has voted not to refer Rep. Moody's civil penalty only bill, HB-507 out of committee. The same fate befell other decriminalization legislation from Gene Wu and Harold Dutton (reduction of 1 oz to a fine only). The vote was 3-2 with Reps Todd Hunter and Terry Canales not voting. Rep Canales was absent from the vote due to a dire family emergency. Moody is, however, quoted in story: "I'm hopeful that there will be a possibility to resuscitate it this session."

Godspeed Rep. Canales.

UPDATED 04/09/2015 - Mark Wiggins of KVUE in Austin attended the public hearing last night and has nice coverage here. Particularly liked former assistant Harris County D.A. (and candidate for Harris Co. D.A.) Kim Ogg's comments.
"Laws are like sausages. It’s better not to see them being made."
Or so says the the old saw most widely attributed to the German politician Otto Von Bismark. For Texas legislative geeks, I must say Grits for Breakfast is the best place to keep up with pending criminal justice legislation in the Texas legislature.

A good example is this post from Grits on April 6, 2015 relating to a scheduled public hearing on Wednesday April 8, 2015 on certain pending bills before the house criminal jurisprudence committee. I would never have known these bills were set for public hearing if not for Grits. The list is here. I did not know of the existence of one of the bills.

First up is the HB-95 by Rep. Allen Fletcher (R-Tomball). Texas Legislature Online attributes authorship to Reps. Villaba, Flynn, Moody and  Leach. All but Moody are GOP members. Moody, a Democrat from El Paso is the ranking Democrat on the committee.

HB 95 would amend Article 36.03 of the Texas Code of Criminal Procedure to allow a designated representative of the prosecution to be present during criminal trials. This individual could not be wearing a uniform or badge during trial proceedings. This would in practice typically mean the detective who worked the case.

Article 36.03 and Rule 614 of the Texas Rules of Evidence require the judge, if asked, to remove potential witnesses from the courtroom during the trial. These witnesses are instructed they cannot discuss their testimony with anyone other than the lawyers trying the case or their representatives. "The Rule", as it is called by lawyers, essentially is meant to prevent witnesses from tailoring their testimony based on what other witnesses have said from the witness stand.

I was originally taken a bit aback by this legislation. So, for example, does this designated prosecution courtroom representative get to sit at prosecution counsel table? I mean they are the "prosecution's designated courtroom representative." As such, why would they not?

The more I have thought about this, though, the less the bothersome the legislation is. Sure, the detective working the case gets to sit in, but they are typically prepared for testimony before The Rule is invoked. Second, they will still be tied to their originally generated reports on cross examination.

More important, it allows a defense lawyer to cross examine on the persistent Joe Friday "Just the facts, ma'am" illusion of objectivity. In other words, it aligns a supposed objective criminal investigator squarely with the State. For example, "Detective, you are the government's designated courtroom representative in this case, right?" coupled with something like, "You were the person most responsible for investigating facts in this case, right?"

Perhaps a small thing, but if used right, effective.

A law enforcement investigator's presence as a prosecution representative can also be used much the same way a prosecutors currently use the defendant's presence during testimony when a defendant elects to testify: "You've been present in the courtroom during all the testimony, right?"

The second bill is HB 507 by the previously mentioned Rep. Moody. This is the civil penalty only bill for possession of marijuana of less than a single ounce. I have previously written about the creativity of this bill and much better and extensive analysis has been given elsewhere.

 I write here because I wonder if Moody's name on HB 95 - the change to "The Rule" amendment from Rep. Fletcher - is meant to trade for GOP support on his marijuana legislation.

I am also curious about who will show up to oppose it. The public hearing should smoke out much of the real opposition to this bill. I particularly am interested about the Texas Criminal District and County Attorney Association and their views.

What says ye?

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